Westminster Bank Ltd NO and Others v Zinn NO

• Jurisdiction: South Africa

Westminster Bank Ltd NO and Others Appellants v Zinn NO Respondent
1938 AD 57

1938 AD p57

Citation	1938 AD 57
Court	Appellate Division
Judge	Curlewis CJ, Stratford JA, Beyers JA, De Wet JA and Watermeyer AJA
Heard	September 16, 1937; September 17, 1937; September 18, 1937
Judgment	November 1, 1937

Flynote : Sleutelwoorde

Will — Power of appointment under South African Law — Exercise of — Donee of power leaving English will — General devise — Whether exercise of power — Effect of section 27 English Wills Act of 1837.

Headnote : Kopnota

A testator domiciled in South Africa bequeathed to his son a share in his estate, subject to a fideicommissum in favour of his issue, and provided that if the son died without issue he should have power to bequeath "his share in such manner as be may by last will direct," failing which it was to devolve on his heirs. The son died domiciled in England without issue and left a will executed in England and valid according to the law of England. In this will, after making certain special bequests, he directed "that the remainder of my property" to be vested in trustees with directions as to income and the eventual disposal of the capital. The trustees in 9, declaration claimed payment of the son's share, which consisted of movables only and which had been administered by the defendant under the will of the testator, alleging that "by the law of England, particularly section 27 of the Wille Act of 1837, the said provisions of the will of the son constituted

1938 AD p58

an exercise of any power of appointment" given him under the will of the testator. An exception to this declaration as disclosing no cause of action having been allowed.

Held, dismissing an appeal, that section 27 of the English Wills Act applied only to general powers of appointment as known to the English Law; that it had no application to the present case, and that the son's will could not be regarded as an exercise of the right conferred upon him under the will of his father.

The case of Ladies' Christian Home v South African Association (1915 CPD 467), approved.

The decision of the Cape Provincial Division in Westminster Bank Ltd. N.O and Others v Zinn N.O., confirmed.

Case Information

Appeal from a decision of the Cape Provincial Division (VAN ZYL, T.P., and JONES, J.). The facts were stated by VAN ZYL, J.P., in the court below as follows:

VAN ZYL, J.P.: In this matter the First Plaintiff is a company with limited liability registered in England and suing, on recognition obtained from this Court, in its capacity as the Trustee under the will of Henry Courage Reid (hereinafter referred to as Courage Reid), the Second and Third Plaintiffs are the residuary heirs under the will of Courage Reid.

From the Declaration of the Plaintiffs it appears that Henry Reid, the father of Courage Reid, was domiciled in the Cape Colony, and whilst so domiciled made a will which he left of full force and effect when he died in September 1876. At the time of his death he was domiciled in the Cape Colony. From the portion of the will annexed to the Declaration, it appears that be gave his wife the interest, rents, dividends or income of an his estate property or effects of what nature or kind soever for the support and maintenance of herself and for the support, maintenance and education of their children, and provided further that upon the decease of his wife "the said Estate property and Effects shall devolve upon our said children and such other children, if any, as may be born as aforesaid in equal shares and proportions provided however that their respective shares shall be burthened with 'Fidei Commissum' so that they shall receive the interests, rents, dividends or income which may accrue thereon during their respective lives and upon their decease leaving issue, the said shares shall respectively devolve upon their children, if more than one in equal shares and proportions, and if only one the whole shall devolve upon such one as his, her or their own free and unencumbered property and in default of issue it shall be lawful for our said children to bequeath their shares in such manner as they may by Last Will or other Testamentary writing direct and failing such win or other testamentary writing the same shall devolve upon their lawful heirs. He also appointed his wife and two others "Executors of this my will and testament and Administrators of my estate and effects with all such power and authority as are required or allowed by law, and especially those of assumption and substitution."

In 1921 the sole surviving executor testamentary of his estate under the power conferred on him by the will duly assumed as Executor the then Secretary of

1938 AD p59

the General Estate and Orphan Chamber (hereinafter referred to as the said Chamber).

It is further stated in the Declaration that "in terms of section 7 of Act 31 of 1861 the said Chamber is deemed to have been validly appointed as Executor in the Estate of Henry Reid," and that the Defendant Edward Victor Zinn in his capacity as secretary for the time being of the said Chamber is the nominal Defendant for and on behalf of the said Chamber." The wife of Henry Reid died on 27th April, 1903, and in terms of and subject to his win there then devolved on Courage Reid the sum of £7,840 4s. 0d. The said Chamber as Executor of the estate obtained possession and control of all the assets in the estate including the said sum of £7,840 4s. 0d which devolved on Courage Reid and which excepting an amount of £10 8s. 0d., was invested by the said Chamber for the benefit of Courage Reid subject to the terms of his father's will.

On the 4th November, 1914, Courage Reid, while domiciled in England made a will in England. He died in, England on the 6th March, 1931, while domiciled there leaving no issue. Upon his death the said will became of full force and effect and was admitted to probate in England. The following portion of the will is annexed to the Declaration: "The remainder of my property I desire to be put into the hands of Trustees and the interest accruing to be given to my sister Eadyth Violet Maclear Jones; wife of Herbert Oakes Jones and for this purpose I appoint the London County and Westminster Bank Limited of Lothbury London E.C., to act as Trustees, and I authorise the Trustees to leave any of my investments in the form they are in at the time of my decease if they so wish.

In the event of the decease of my sister Eadyth Violet Maclear Jones I bequeath a moiety of the above residue of my estate to the Royal Ophthalmic Hospital, City Road, Moorfields, London, E.C and the remainder I bequeath to Doctor Barnardo's Homes for Waifs and Strays, Stepney Causeway, London."

It is alleged that at the death of Courage Reid the value of the investment made by the said Chamber out of the moneys which devolved on him under his father's will was £7,993 2s. 6d. The Declaration then went on to state:

"13. Under the said provisions of the will of the said Henry Courage Reid, on a true construction thereof according to the Law of England, the assets to which the said provisions related (and which included the assets that devolved on the said Henry Courage Reid as aforesaid) were to be put into the hands of the Westminster Bank Limited as Trustee, and the said Trustee was to pay the interest accruing therefrom to Eadyth Violet Maclear Jones for her life and on her death the said trustee (first Plaintiff) was to hand over the said assets to Second and Third Plaintiffs in equal shares. The said Eadyth Violet Maclear Jones died on or about the Sixth day of November, 1936.

"14. By the Law of England, particularly Sec. 27, 1 Victoria, Chapter 26, the said provisions of the Will of Henry Courage Reid constituted an exercise of any power of appointment which may have been given him under the will of Henry Reid.

"15. Plaintiffs say that on a true construction of the will of Henry Reid a power of appointment was given to Henry Courage Reid.

"16. By reason of Paragraphs 13, 14 and 15 hereof Plaintiffs say that the investments and the sum of £10 8d. 0d referred to in Paragraph 10 hereof should have been paid over after the death of Henry Courage Reid, by the said Chamber

1938 AD p60

to First Plaintiff to be dealt with by it in terms of the will of Henry Courage Reid.

"17. In breech of its duty and although it was fully acquainted with the wills of Henry Reid and Henry Courage Reid, the said Chamber wrongfully and unlawfully distributed in or about November 1932 (the exact date being to Plaintiffs unknown) among the next of kin of Henry Courage Reid the investments and the sum of £10 8s. 0d aforesaid."

Then the Declaration went on to state alternatively in Paragraph 18 thereof. "Should this Honourable Court hold that no power of appointment was given by the will of Henry Reid, Plaintiffs say that the sum of £7,840 4s. 0d referred to in paragraph 8 hereof, which devolved on Henry Courage Reid on the death of Henry Reid vested in Henry Courage Reid absolutely on his dying leaving no issue."

The Plaintiffs allege that the said Chamber is liable either on the main or the alternative grounds set out in the Declaration to pay over to the First Plaintiff the said sum of £7,993 2s. 6d. and £10 8s. 0d aforesaid, less a sum of £10 2s. 8d. being certain expenses incurred by the said Chamber in connection with the investments aforesaid, that is to say a total such of £7,993 7s. 10d., together with interest as hereinafter set forth.

They accordingly claim the sum of £7,993 7s. 10d. to be paid over to the First Plaintiff. There are also two subsidiary claims which need not be mentioned here.

The Defendant excepts to the Plaintiff's Declaration "as being vague, embarrassing and bad in law, more particularly in that:

(a)

It does not set forth any legally efficacious direction by HENRY COURAGE REID in...