Zinn NO v Westminster Bank Ltd

• Jurisdiction: South Africa
• Judge: Curlewis ACJ, Stratford JA, Beyers JA, De Villiers JA and De Wet AJA
• Judgment Date: 03 October 1935
• Citation: 1936 AD 89
• Hearing Date: 18 September 1935
• Court: Appellate Division

Stratford, J.A.:

This is an appeal from a judgment of the Cape Provincial Division. Henry Reid, domiciled and resident in the Cape Colony, died there on the 14th September, 1876. He left a will, the relevant portions of which are as follows: - "Whereas previous to my marriage with my beloved wife Clare Georgina Reid I settled upon her the sum of two thousand pounds in manner provided by the antenuptial contract executed before our marriage and dated 25th April, 1851. Now therefore for the purposes of this will I desire to consider the said sum as part of my estate hereby devised in manner following.

"I give to my said wife the interest, rents, dividends or income of all my 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 our dear children named Mary Jean Reid, John Andrew Reid, Jessy Margaret Reid, Henry Courage Reid, Alfred Kenneth Maclear Reid, Clara Otto Reid and Eadyth Violet Maclear Reid, and such other children, if any, as may be born of the said marriage, to enjoy the said interest, rents or dividends

Stratford, J.A.

or income for and during the term of her life provided she remain my widow, and upon her decease 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 will or other testamentary writing the same shall devolve upon their lawful heirs.

"I appoint my wife together with my nephew John Robertson Reid and my son John Andrew Reid 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."

His wife died in April, 1903. His son Henry Courage Reid became under and subject to the terms of his father's will, entitled to an interest in the sum of £7,840 4s. Henry Courage Reid was domiciled and resided in England, where he died on 6th March, 1931. He left no issue. His last will was dated November 4th, 1914, and was made during his English domicile. The material portion of his will is the following: -

"I hereby revoke all wills made by me at any time heretofore. I appoint Mr. Isaacson, of 8, New Inn, A. Isaacson, London, W.C., solicitor, to be my executor or in the event of his decease, I appoint the London County and Westminster Bank Limited, of Lothbury, my executor and direct that all my debts and funeral expenses shall be paid as soon as conveniently may be after my decease. I give and bequeath unto my sister Jessy Margaret Reid the sum of £100 free of legacy duty; unto my sister Clara Otto...