Ward v Barrett, NO and Another, NO

• Jurisdiction: South Africa
• Judge: Steyn CJ, Van Blerk JA, Ogilvie Thompson JA, Botha JA and Wessels JA
• Judgment Date: 18 March 1963
• Citation: 1963 (2) SA 546 (A)
• Hearing Date: 07 March 1963
• Court: Appellate Division

Steyn, C.J.:

The first respondent is the executrix in the estate of her late husband, Basil Barrett, who died on 5th December, 1958. By a deed B of sale dated 1st April, 1954, he bought a piece of land with an hotel and a bottle store business from the appellant. In terms of the deed part of the purchase price was to be paid in cash and payment of the balance of R40,000 was to be secured by a second mortgage bond over the fixed property and two notarial bonds, one over the furniture and C equipment of the hotel business and the other over the liquor licence for the bottle store. Transfer of the fixed property was duly passed, subject to the mortgage bond, and the first-mentioned notarial bond was registered. Up to the date of the death, the notarial bond over the liquor licence had, however, not been registered. There was some dispute between the deceased and the appellant, and that, presumably in part at any rate, accounts for the delay.

D By a circular letter dated 9th June, 1960, the first respondent's attorneys, acting on her behalf, reported to the creditors in the deceased estate that as she had been unable to realise the assets at a solvent figure, she regarded the estate as insolvent, and advised them in terms of sec. 48 (3) (b) of the Administration of Estates Act, 24 of E 1913, that unless a majority of creditors in number and value instructed her in writing before 23rd June, 1960, to surrender the estate, she would proceed to realise and distribute it as if she were a trustee distributing an insolvent estate. No such instructions were given.

F On an undisclosed date before 22nd June, 1960, possibly after receipt of the circular letter, the appellant demanded from the first respondent that she perform the obligation in regard to the bond over the liquor licence. On the latter date the first respondent executed a power of attorney in favour of Pamela Roberts (described as a clerk, Durban, but presumably as representing the appellant) authorising her to pass such a G bond. The registration took place on 22nd September, 1960. The assets in the deceased estate were sold, and on 1st June, 1962, the first respondent lodged a liquidation and distribution account which accorded the appellant no preference in respect of the proceeds of the sale of the bottle store liquor licence. The appellant objected to this but the H Master, the second respondent, disallowed the objection. In the Court below she sought an order requiring the account to be amended by awarding her the preference which she claims under this bond. Her application was dismissed with costs, and by consent she appeals directly to this Court. The question is whether this notarial bond has been validly registered and entitles her to the preference which she claims.

Sec. 48 (3) of the Administration of Estates Act deals with insolvent deceased estates. Para. (a) refers to such an estate in regard to which

Steyn CJ

the Master is satisfied that the value of the assets does not exceed three hundred pounds. Para. (b) provides:

'If the Master be not satisfied as aforesaid as to the value of the assets the executor shall immediately report, in writing, the position A of the estate to the creditors, informing them that unless a majority in number and value...