Weyer v Estate Weyer

• Jurisdiction: South Africa
• Citation: 1939 AD 126

Weyer Appellant v Estate Weyer Respondent
1939 AD 126

1939 AD p126

Citation	1939 AD 126
Court	Appellate Division
Judge	De Wet JA, Tindall JA and Centlivres AJA
Heard	October 5, 1938; October 6, 1938; October 7, 1938
Judgment	October 25, 1938

Flynote : Sleutelwoorde

Will — Joint will — Continuation of community — Boedelhouderschap — Survivor administrator of joint estate — Family agreement with major children — Duty of full disclosure — Pleadings — Amendment on appeal — When granted.

Headnote : Kopnota

Under, joint will the survivor and the children were appointed sole heirs of the fist dying subject to the condition that the survivor should be able to main in possession of the whole joint estate during his or her lifetime, in which event he was to be entitled to act as though he were the sole heir of the first dying. The court assumed that certain other provisions in

1939 AD p127

the will amounted to a direction that the whole estate should be kept together until the death of the survivor. On his death, however, the survivor had the right to dispose of half plus a child's portion of the estate. The survivor was appointed not only as executor, but also "boodelhouder." It was contended that though the will did not expressly provide for continuation of community it was a a implication from its terms that the community was to continue.

Held, that the word "boedelhouder" did not imply boedelhouderschap in the technical sense but merely referred to the fact that the survivor was to remain in possession of the joint estate and that the will did not provide for a continuation of the community after the death of the first dying.

The survivor under a joint will, who is administrator of the joint estate, stands in a fiduciary relationship to the children of the marriage after as well as before they reach majority and he has a duty to make to the children a full disclosure of all the facts in his knowledge, which it is material for them to know in order to enable them to judge whether a family agreement he wished them to enter into is a fair one, notwithstanding the fact that they know the terms of the will of the first dying and understand the meaning of the proposed agreement.

The Appellate Division refused an application for the amendment of a declaration, the granting of which would have involved a remittal to the Trial Court for further enquiry, when the evidence on the record as it stood showed that, even if the plaintiff succeeded in having a family agreement set aside on the fresh ground raised in the amendment, the prospect of his gaining any monetary advantage was small, but altered a judgment for the defendant into one of absolution from the instance.

The decision of the Eastern Districts Local Division in Weyer v Estate Weyer, confirmed.

Case Information

Appeal from a decision of the Eastern Districts Local Division (GANE, J.). The facts appear from the judgment of TINDALL, J.A.

F. G. Reynolds, K.C. (with him Jennett), for the appellant: The deceased was a fiduciary towards the heirs and their rights. See Natal Bank v Rood's Heirs (1909 T.S. 243 at pp. 257-8); Natal Bank v Rood's Heirs (1910 T.P.D. 1360 at p. 1366); Kerr on Fraud (5th ed., pp. 170-11; Steyn on Wills (p. 148).

By accepting the child's portion, the survivor undertook to carry out the terms of the will, while he retained the right to dispose of his monetary half-share of the estate and the child i; portion as he wished on his death. See Receiver of Revenue v Hancke (1915 AD 64); Rosenberg v Dry's Executors and Others (1911 AD 679 at p. 690); South African Association v Mostert (1873, Buch. 31 at pp. 40-4).

If the Court holds that under the 1919 agreement the whole inheritance was renounced, it is void or voidable, as deceased was a fiduciary and it was his duty to show the agreement was fair and

1939 AD p128

had been made with full knowledge of the facts and the rights of the heirs. See Kerr on Fraud (pp. 156, 160); and Lindsay Petroleum Co. v Hurd (1874, L.R. 5 P.C. At p. 224); Roodepoort-Maraisburg Town Council v Eastern Properties (1982, W.L.D. 78); Ex parte Robinson (1917 T.P.D. 679); John Dougan v Macpherson (1902, A.C. 197); Thompson and Others v Eastwood and Others (2 A.C. 215 at pp. 2324, 236-7); Plowright v Lambert (52. L.T. 646); Beningfield v Baxter (12 A.C, 167 at pp., 170, 177, 179, 181, 183); Osry v Hirsch Loubser & Co. Ltd. (1922, C. P. D. 581 at pp. 549, 568, 561); Heirs Hiddingh v de Villiers, Denyssen and Others (5 S.C. 298 at p. 311); In re Estate Black (1918 CPD 603); Ex parte van Niekerk (1918 CPD 108) Halsbury's Laws o f England (Hailsham ed., vol. J5, p. 216, paras. 1, 2, 5, 12); Ferreira v Otto (3 S.C. 193 at p. 197).

As to the effect of boedelhouderschap and the, continuation of community of property see Maasdorp's Institutes (5th ed., vol. 17. p. 261); Natal Bank v Rood's Heirs (supra); de Jager v de Jager (1 Buch. A.C. 429 at p. 440 and 2 Buch. A.C. 146); and Estate Wilson v Estate Wilson (1909, N.L.R. 447).

The defence of laches is an equitable doctrine Bud cannot, be used to cover up improper enrichment of the fiduciary or those who take from him without consideration, especially when there is no disturbance of third parties. See Halsbury's Laws of England (Hailsham ed., vol 13, p. 216, paras. 207, 208); Pathescope (Union of S.A.) Ltd. v Mallinick (1927 AD 292); Ex parte van Niekerk (supra); Bainbridge v Browne (18 Ch. D. 188 at p. 197); re Burge Gillard v Lawronson (57 L.T. 364) and Ex parte Gallard (1897, 2 Q.B. 8 at p. 15).

The defence of estoppel is invalid, as there was no knowledge on plaintiff's part and no change of position for the worse on the money claim and as the agreement was invalid. See Everest & Strode on Estoppel (3rd ed., p. 171).

Even if the appellant has received all he was entitled to, that is no defence in law. See Heirs Hiddingh v de Villiers, Denyssen and Others (supra); Beningfield v Baxter (supra).

As to the defence of plene administraverunt see Watson's Executors v Watson's Heirs (8 S.C. 282 at pp. 285, 287); Fischer v Liquidator of Union Bank (8 S.C. 46 at p. 54); Laing v le Roux (1921 CPD 745) and Colonial Treasurer v Swart (1910 TPD 552).

J.C. Macintosh, for the respondent: The joint will did not

1939 AD p129

establish continuation of community. On continuation generally see van der Keessel's Theses Selectae (Th. 266-276, trans p. 93); as to continuation by last will, there is a very strong presumption against it. See Voet (24.3.30) cited in Natal Bank Ltd. v Rood's Heirs (1909, T.S at pp. 258-9; and 1910 TPD at p. 1366). The reasons for the presumption are that the continuation is contrary to the rules of partnership; that it conflicts with the whole scheme of administration, that it is a species of massing and that it may be gravely prejudicial to the children.

Express words are required to establish continuation of community. See Ex parte van Staden (1923 OPD 19). Massing, in the sense of a disposition of the share of the surviving spouse after his death, is an essential characteristic.

The only type of continuation which is recognised in Roman-Dutch law is the case where the surviving spouse is appointed heir of the joint estate and after his death the children are appointed heirs of whatever shall then be found in the estate. See Bynkershoek's Burg. Rechts. Zaken (3.10, p. 646), van der Keessel's Sel. Th. (Th. 267); Brown v Rickard (2 S.C. 314); Re Estate Kahtt (1920 T.P.D. 241); Kemsley and Others v Kemsley and Others (1936 CPD 518); Estate Wilton v Estate Biddlecombe and Others (1933 CPD 441). This type is almost indistinguishable from a fideicommissum residui. See Ex parte Bekker (1928 OPD 28); Ex parte Perry (1932 OPD 116).

The other type of continuation of community - namely, where the survivor and the children are appointed heirs of the joint estate - is not recognised in Roman-Dutch law. The only case in which it was held to exist was Cloete v Cloete's Trustees (5 S.C. 59 at pp. 60 and 64-5). In both types the appointment is as heir of the joint estate and the joint estate, as a whole, is disposed of after the death of the survivor.

It was held that there was no continuation in the following cases: Natal Bank Ltd. v Rood's Heirs (supra); Ex parte van Staden (supra); Furstenburg N.O. v Liebenberg (1921 OPD 18); Botha v van der Vyver and Others (25 S.C. 760) and Estate Gouws v Estate Marais and Others (23 S.C. 72).

As to the effect of the use of the phrase "gemeenschappelyke boedel" see Steyn on Wills (p. 136); Barry v Kunhardt's Executors (2S.C. 89); Kleyn v Estate Kleyn (1915 AD 527 at p. 533); Smith and Others v Savers' Executors (Foord 66); (Coaton's Estate v The Master (1915 CPD 318) at pp. 322-3)

1939 AD p130

and de Kock v Estate de Kock (1922 CPD 110). As to the need for provisions for sale after the death of the survivor see Natal Bank Ltd. v Rood's Heirs (1910 TPD at p. 1364) and Furstenburg N.O. v Liebenberg (supra); Ex parte van Staden (supra) and Estate Gouws v Estate Marais and Others (supra).

The word "boedelhouder" is not a technical term; it does not necessarily connote continuation of community. See Grotius' Introduction (2.13.3); Schorer's Note (108); Ordinance 104 of 1833, sec. 28 and de Bruyn's Opinions of Grotius (p. 51). There is a qualifying context. See Pothier ad Pand ad lib. (30 Pt. 2, c. 189, reg. 26).

The Courts freely depart from a technical meaning if the context, or the general scheme of the will, so requires. See van Leeuwen's Roman-Dutch Law (3, 6.1 and 2); Havemann's Assignee v Havemann's Executor (1927 AD 473 at p. 478); Wehr v Estate Wehr (1922 CPD 411).

The survivor did not establish continuation of community by remaining in possession. In Estate Messina v Estate Messina (1923, E.D.L at p. 475); Smith v Sayers' Executor (supra); Natal Bank Ltd. v Rood's Heirs (1909, T.S at p. 258); Maasdorp's Institutes (vol. 1, p. 103)...