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E v Estate Late B (192/2013) [2014] ZASCA …

E v Estate Late B (192/2013) [2014] ZASCA 27; [2014] 2 All SA 635 (SCA); 2014 (4) SA 1 (SCA) (28 March 2014)

80 Reportability

Trusts and Estates

Brief Summary

Succession — Fideicommissum — Interpretation of wills — Grandchild's right to inherit — A grandchild is not disqualified from inheriting due to the predecease of a parent; in the absence of clear testamentary indications to the contrary, a grandchild of a predeceased parent inherits per stirpes. The appellant, as the mother of the minor child J[…], contested the high court's ruling that J[…] could not inherit from the estate of the deceased, B[…] C[…] B[…], after her father had predeceased him. The Supreme Court of Appeal upheld the appeal, ruling that J[…] is entitled to inherit as her father would have, confirming the validity of the fideicommissa established in the wills of the deceased's ancestors.

Full Judgment Text (Click to expand)

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[2014] ZASCA 27
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E v Estate Late B (192/2013) [2014] ZASCA 27; [2014] 2 All SA 635 (SCA); 2014 (4) SA 1 (SCA) (28 March 2014)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 192/2013
Reportable
In
the matter between:
N[…]
E[…] NO
………………………………………………
Appellant
and
ESTATE
LATE B[…] C[…] B[…]
……………………..
Respondent
Neutral
citation:
N[…] E[…] NO v Estate Late B[…]
(192/13)
[2014] ZASCA 27
(28 March 2014)
Coram:
Mthiyane
DP and Petse, Willis and Saldulker JJA and Legodi AJA
Heard:
17
March 2014
Delivered: 28
March 2014
Summary:
A grandchild is not disqualified from inheritance as a result of
the fact that one or both of the grandchild’s parents
predeceased
his or her grandparents – in the absence of clear
indications to the contrary in a will, the grandchild of a
predeceased
parent will inherit
per stirpes
ORDER
On
appeal from:
North Gauteng High Court, Pretoria (De Vos J sitting
as court of first instance):
1
The appeal is upheld;
2
The order of the high court is set aside;
3
The following order is substituted for that of the high court:
‘
(i)
The fideicommissa established in terms of the wills of the late J[…]
A[…] J[…] B[…], dated 20 March
1969 and the late
J[…] H[…] B[…], dated 26 March 1969 entitle
J[...] B[…] (Identity number 0[…])
to inherit
such bequest as her late father, J[…] B[…], would have
inherited were he still alive;
(ii)
The executor of the estate of the late B[…] C[…] B[…]
is to distribute the properties subject to the fideicommissa

established in terms of the said wills to J[…] A[…]
J[…] B[…] and J[...] B[…] as fideicommissaries

great-grandfather) and grandmother (the minor child’s
previously mentioned great-great-grandmother). The issue for
determination
in both the high court and this court was whether J[…]
could inherit, as a fideicommissary, when her father had predeceased

the deceased. In the judgment of the high court (De Vos J) on 23
February 2013 it was found that J[…] could not. On 4 March

2013 it granted the appellant leave to appeal to this court. The
appellant was N[…] E[…], the mother and surviving

natural guardian of J[…], who was born on 1[..] J[…]
2[…].
[3]
J[…] A[…] B[…] (the excecutor), who is the son
of the deceased and the duly appointed executor of the deceased’s

estate, brought an application before the high court for an order
declaring that the fideicommissum established in favour of J[…]

B[…], in terms of the wills of the late J[…] A[…]
J[…] B[…] (the first testator) dated 20 March
1969 and
the late J[…] H[…] B[…] (the testatrix or second
testator) dated 26 March 1969, terminated upon the
death of J[…].
J[…] died on 26 August 2001. J[…] was the son of the
deceased and the brother of the executor.
The deceased died on 22
February 2009. J[…] therefore predeceased his father, the
deceased. The deceased was the son of
the first testator and the
grandson of the testatrix. The testatrix was the mother of the first
testator. The executor has two
children. The elder is J[…]
A[…] J[…] B[…], born on 7 July 1998, who was
named after his paternal grandfather,
the first testator. The younger
is A[…] B[…], born on 8 January 2000. These two
children are still living. The first
testator is J[…]’s
great-grandfather to whom reference has already been made. The
testatrix is J[…]’s
aforesaid great-great-grandmother.
[4]
The executor brought the application ex parte
.
At the instance
of the executor, a rule nisi was issued and served on all interested
parties, including the appellant. Consequent
upon the issue of the
rule nisi, the appellant received notice of the application and
successfully applied to be joined as a party.
The appellant opposed
the application and brought a counter-application for an order that
J[…] should inherit that part
of the deceased’s estate
which her father, had he still been alive, would have inherited. An
advocate, Ms Elani Botha, was
appointed as curator-ad-litem for J[…]
on an interim basis. Ms Botha was, by agreement, discharged from her
duties before
the hearing of the application.
[5]
The will of the first testator dated 20 March 1969 was comprehensive.
The first testator provided in clause six thereof:
‘
Ek
bemaak my plaas G[…], 3[…] m[…] g[…], aan
my seun B[…] C[…] B[…] onderhewig
aan die
voorwaarde dat dit by sy dood sal gaan na sy kinders by wie se dood
die plaas weer sal oorgaan na my seun se kleinkinders.
Indien my seun
te sterwe sou kom, sonder om kinders na te laat óf indien sy
kinders geen kinders nalaat nie sal gemelde
plaas oorgaan na C[…]
M[…] B[…] (gebore D[…] J[…]), my
half-suster J[…] D[…] J[…]
se dogter, by wie se
dood die plaas na haar kinders sal oorgaan.
DIE
bemaking is onderhewig aan die verdere voorwaarde dat my moeder J[…]
H[…] B[…] ’n lewenslange
reg van habitatio
sal hê ten opsigte van die huidige woonhuis op die plaas.’
The
first testator therefore bequeathed the farm G[…] to the
deceased on condition that, upon the death of the deceased,
ownership
of the farm would pass to the deceased’s children, upon whose
death, in turn, ownership of the farm would pass
to the deceased’s
grandchildren. The will therefore envisages the passing of the
ownership of the farm to the deceased’s
grandchildren, of whom
J[...] was one, there being neither distinction nor discrimination
among them on account of the early demise
of a parent.
[6]
The relevant portion of the will of the testatrix dated 26 March 1969
is to be found in clause three thereof. The pertinent
parts of clause
three read as follows:
‘
Ek
bemaak my boedel, roerend en onroerend as volg:
A
My gedeelte van die plaas G[…], 100 morge groot, aan my
kleinseun B[…] C[…] B[…] onderhewig aan die

voorwaarde dat dit by sy dood sal gaan na sy kinders by wie se dood
die plaas weer sal oorgaan na my kleinseun se kleinkinders.
Indien my
kleinseun te sterwe sou kom sonder om kinders na te laat, sal gemelde
plaas oorgaan na C[…] M[…] B[...]
(gebore d[…]
J[…]), die dogter van J[…] D[…] J[…], by
wie se dood die plaas sal oorgaan na haar
kinders. Die bemaking is
onderhewig aan die verdere voorwaarde dat M J J[…] ‘n
lewenslange reg van
habitatio
sal hê ten opsigte van die
huis opgerig vir hom en tans deur hom bewoon op my deel van gemelde
plaas.’
Ex
facie the will of the testatrix, she left her portion of the farm to
the deceased but provided that, upon the death of the deceased,
that
portion would devolve on his grandchildren in the event that he died
having surviving children.
[7]
J[...] is the only surviving child of J[…] who, as we have
seen, predeceased the deceased. The appellant, N[…]
E[…],
was married to J[…] on 5 […]. J[...] was born of the
marriage between the appellant and J[…].
The appellant, as the
mother and natural guardian of J[...], opposed the executor’s
application and brought the counter-application
in the interests of
J[...]. The appellant and J[…] were divorced. Subsequent to
J[…]’s death, the appellant
remarried.
[8]
The provision in the will, stipulating the succession of the
ownership of the farm over several generations, is known in our
law
as a fideicommissum. In Corbett et al’s
The
Law of Succession in South Africa
[1]
it is said that:
‘
A
testamentary fideicommissum is a disposition of property by will to a
beneficiary (known as the “fiduciary”) subject
to a
provision requiring the fiduciary, either absolutely or upon the
fulfillment of a condition, to pass on the property either
wholly or
in part, to another beneficiary (known as the “fideicommissary”).’
[9]
Upon the death of the first and second testators, the properties in
question were duly transferred to the deceased in accordance
with the
testamentary dispositions of the deceased’s father (the first
testator) and grandmother (the testatrix or second
testator). There
are, in fact, three properties, subject to the fideicommissa in
contention, which the deceased inherited:
(i)
Portion 28 of the farm G[…] 86, Registration Division I S,
Province of Mpumalanga, in extent 85,8532 hectares, which
the
deceased inherited in terms of the will of testatrix;
(ii)
The Remaining Extent of the farm G[…], in extent 226,9096
hectares, inherited in terms of the first testator’s
will;
(iii)
The Remainder of Portion 9 of the farm G[…], in extent 98,4298
hectares, inherited in terms of the first testator’s
will.
Portion
28 of G[…] was transferred to the deceased on 4 August 1976.
The Remaining Extent of G[…] and the Remainder
of Portion 9
were transferred to him on 31 January 1997. These three farms have
been treated as a single unit, fenced as such and
known as ‘G[...]’.
[10]
The estate of the deceased had been sequestrated while he was still
living. The properties in question were sold by public
auction on 6
August 1993 to LCJ and JC Bezuidenhout Boerdery Beperk. These
properties were transferred to the purchaser on 31 January
1997. The
transfers took place subject to the fideicommissa provided for in the
wills of the first and second testator respectively.
[11]
There is a difference between the will of the first testator, on the
one hand, and that of the testatrix, on the other: the
first testator
stipulated that, upon the death of the deceased, the farm was to pass
to the deceased’s children whereas the
will of the testatrix
provides that, upon the death of the deceased, the portion of the
farm was to pass to the grandchildren of
the deceased. Nothing turns
on this.
[12]
The high court correctly found that:
‘
Die
tersaaklike gedeelte van beide testamente is dat die plase by B[…]
C[…] B[…] (the deceased) se dood sal
gaan aan al sy
kinders en dat by die kinders se dood die plase sal oorgaan na B[…]
C[…] B[…] se kleinkinders.’
This
may be translated as follows:
‘
The
relevant portion of both wills is that the farms shall be inherited
by all of the children of B[…] C[…] B[…]
and
that, upon the death of these children, the farms shall pass to B[…]
C[…] B[…]’s grandchildren.’
(My
translation.)
J[...]
is, as has already been mentioned, one of the deceased’s
grandchildren.
[13]
The high court relied strongly on the following passage in
Jewish
Colonial Trust Ltd v Estate Nathan
:
[2]
‘
In
the ordinary form of fideicommissum, created by will where the
fiduciary is a human being taking a beneficial interest and the

fideicommissary is a human being, there is implied in the bequest to
the fideicommissary a condition of survivorship (viz that
his
institution as heir is conditional on his surviving the
fiduciary).’
[3]
[14]
Referring to J[...], the high court found that:
‘
Op
die feite voor my het geen vestiging uit die fideicommissiêre
beskikking plaasgevind nie omdat die fideicommissarius voor
the die
fiduciarius gesterf het. Die testamente is duidelik en bepaal dat
vestiging sou plaasvind by die dood van die fiduciarius.
Tot daardie
gebeurtenis plaasgevind het, het die dominium gevestig in die
fiduciarius. By die nie-vervulling van die fideicommissiêre

voorwaarde, word die ontbindende voorwaarde, waaronder die
fideicommissarius se “reg” gebuk gaan, vervul en vind
dienooreenkomstige
uitwissing van die ius in personam plaas…’
This
may be translated as follows:
‘
On
the facts before me, no vesting of the fideicommissiary dispensation
took place because the fideicommissary died before the fiduciary.
The
wills are clear and stipulate that vesting takes place on the death
of the fiduciary. Until that event occurs, ownership vested
in the
fiduciary. Upon non-fulfillment of the fideicommissiary condition,
the resolutive condition, whereby the fideicommissary’s
“right”
had been burdened, is fulfilled and the corresponding termination of
the personal right occurs
.’
(My
translation.)
[15]
The high court dismissed the appellant’s counter-application
and ordered that the rule nisi issued on 6 July 2012, as
amended on
12 August 2012 be confirmed. In other words the high court issued an
order declaring that:
(i)
The fideicommissum established in terms of the wills of the
late J[…] A[…] J[…] B[…] (J[...]’s

great-grandfather) dated 20 March 1969 and the late J[…] H[…]
B[…] (J[...]’s great-great-grandmother)
dated 26 March
1969 terminated upon the death of J[…] B[…] (J[...]’s
father) on 26 August 2001; and
(ii)
J[...] was not entitled to inherit in terms of the aforementioned
wills of the late J[…] A[…] J[…] B[…]
and
the late J[…] H[…] B[…].
The
high court ordered that the costs of the application and
counter-application as well as the costs of J[...]’s
curator-ad-litem
be borne by the estate of the deceased.
[16]
In terms of s 6(1) of the Immovable Property (Removal or Modification
of Restrictions) Act 94 of 1965, any fideicommissum created
in
respect of immovable property after the commencement of that Act is
limited to two successive fideicommissaries. J[…]’s

father was the fiduciary of G[…]. J[…], having
predeceased his father, did not become a fideicommissary thereof.

Accordingly, if J[...] otherwise qualifies, she would be the first
fideicommissary in terms of the wills of both the first and
the
second testators.
[17]
Mr Muller, who appeared for the respondent, fairly and correctly
conceded that the respective wills had obviously been drawn
with this
Act in mind and that the clear intention of the testators had been to
pass down the farm G[…] to as many generations
as the Act
would allow. That, in itself, favours J[...].
[18]
Where a fideicommissum provides for the fideicommissary property to
be passed on to successive fideicommissaries, as in this
case, the
fideicommissum is termed a
fideicommissum
multiplex
.
[4]
This contrasts with the situation where the fideicommissum provides
for the property to be passed on once only, which is known
as a
fideicommissum
unicum
(or
simplex
).
[5]
[19]
The high court lost sight of the following qualification to that
which has been quoted earlier from
Jewish Colonial Trust
, viz:
‘
In
the ordinary form of fideicommissum, created by will where the
fiduciary is a human being taking a beneficial interest and the

fideicommissary is a human being, there is implied in the bequest to
the fideicommissary a condition of survivorship (viz. that
his
institution as heir is conditional on his surviving the
fiduciary)…
But this implication does not exist in every
form of
fideicommissum
…’(My emphasis.)
[20]
In Corbett et al’s
The
Law of Succession in South Africa
[6]
it is said that a
fideicommissum
multiplex
constitutes
an exception to the general rule stated in the aforsaid passage in
Jewish
Colonial Trust
and, referring with approval to
Ex
parte Swanepoel
,
[7]
the learned authors say that where a fideicommissum is
multiplex
,
the death of the fideicommissary prior to vesting does not result in
the termination of the fideicommissum but brings about the

acceleration of the interest of the substitute.
[8]
Effect has to be given the intention of a testator expressed by
creating a
fideicommissum
multiplex
.
[9]
[21]
Johannes Voet, in his
Commentarius Ad Pandectas
, says:
‘
Ac
proinde cum in Hollandia unius fratris filii et alterius fratris
nepotes simul ad intestato ad patrui defuncti hereditatem
non
in capita
,
sed
in
stirpes
veniant, etiam voluntas haec testatoris eam recepit interpretationem,
ut
in
stirpes potius, quam in capita
,
hereditas fratrum liberis ac nepotibus delata intelligatur
.’
[10]
(My emphasis.)
[22]
Sir Percival Gane’s translation of this passage by Voet is the
following:
‘
Since
therefore in Holland the sons of one brother and the grandsons of
another brother come together in intestacy into the inheritance
from
a deceased uncle not by heads’
[11]
but by stocks,
[12]
this wish
of the testator has also received the interpretation that the
inheritance is understood to have been conferred on the
children and
grandchildren of brothers by stocks rather than by heads.’
[13]
Voet
also records that, in a context such as this, where a clear intention
to the contrary is absent in a will, it is presumed that
that the
direction is that the succession of descendants follows the order
upon intestacy (i e
per
stirpes
rather than
per
capita
).
[14]
The relevant portions of the original text read as follows: ‘…
in
dubio
…
potius
successive secundum ordinem dilectionis et successionis
ab
intestato
.’
[15]
(My emphasis.)
[23]
The principle of representation
[16]
in our law of succession entails that, where an ancestor leaves
descendants, a presumption arises that the descendants should inherit
per
stirpes
(each stem of the family taking the same share).
[17]
This principle has the natural consequence that, in our law, in
circumstances where a grandchild’s parents predeceased that

grandchild’s grandparents, the grandchild will ordinarily
inherit from his or her grandparents. A grandchild is not
disqualified
from inheritance merely as a result of the fact that one
or both of the grandchild’s parents predeceased his or her
grandparents
.
[24]
The strength of J[...]’s claim to inheritance is compounded by
the presumption in our law against a testator having the
intention to
disinherit descendants.
[18]
[25]
The clear intention of both the first and second testators was that,
without distinction among them, the grandchildren of the
deceased
should inherit under the respective fideicommissa. As such a
grandchild, J[...] was entitled to inherit thereunder. She
inherits
per stirpes
. The appeal must succeed.
[26]
The following order is made:
1
The appeal is upheld;
2
The order of the high court is set aside;
3
The following order is substituted for that of the high court:
‘
(i)
The fideicommissa established in terms of the wills of the late J[…]
A[…] J[…] B[…], dated 20 March
1969 and the late
J[…] H[…] B[…], dated 26 March 1969 entitle
J[...] B[…] (Identity number 0[…])
to inherit
such bequest as her late father, J[…] B[…], would have
inherited were he still alive;
(ii)
The executor of the estate of the late B[…] C[…] B[…]
is to distribute the properties subject to the fideicommissa

established in terms of the said wills to J[…] A[…]
J[…] B[…] and J[...] B[…] as fideicommissaries

respectively, J[...] to inherit
per stirpes
;
(iii)
The fideicommissa established in terms of the aforesaid wills of the
late J[…] A[…] J[…] B[…]
and the late
J[…] H[…] B[…] will terminate in respect of the
fideicommissary bequest to J[...] such that she
receives ownership
unrestricted by the considerations of any generation succeeding her;
(iv)
The costs of the application and counter-application as well as the
costs of J[...]’s curator-ad-litem are to be borne
by the
estate of B[…] C[…] B[…].’
4
Any pending rule nisi in this matter is discharged.
5
The costs of this appeal are to be borne by the estate of B[…]
C[…] B[…].
N
P WILLIS
JUDGE
OF APPEAL
APPEARANCES
For
the Appellant: J G Bergenthuin SC
Instructed
by:
Els
Attorney, Pretoria
c/o
Phatshoane Henney Inc, Bloemfontein
For
the Respondent:G C Muller SC
Instructed
by:
Stopforth
Swanepoel & Brewis Inc, Pretoria
c/o
Webbers, Bloemfontein
[1]
M
M Corbett, G Hofmeyr and E Kahn 2
The
Law of Succession in South Africa
2 ed (2001) at 260.
[2]
Jewish
Colonial Trust Ltd v Estate Natha
n
1940 AD 163.
[3]
At
176.
[4]
See
Executors
Estate Fatha Mahomed v Moosa
1946 NPD 516
at 518; M M Corbett, G Hofmeyr and E Kahn
The
Law of Succession in South Africa
(supra) at 262-3.
[5]
See, for example, J Voet (1723)
Commentarius
Ad Pandectas
36.1.27 and 28;
Ex
Parte Dell
1957 (3) SA 416 (C).
[6]
M
M Corbett, G Hofmeyr and E Kahn
The
Law of Succession in South Africa
(supra).
[7]
Ex
parte Swanepoel
1960
(2) SA 357 (O).
[8]
At 296-7.
[9]
See
Jewish
Colonial Trust Ltd v Estate Natha
n
(supra) at 176;
M
M Corbett, G Hofmeyr and E Kahn
The
Law of Succession in South Africa
(supra) at 262-3.
[10]
J
Voet (1723)
Commentarius
Ad Pandectas
28.5.17.
[11]
‘
Capita
’,
in this context, refers to the phenomenon whereby only the survivors
in a particular generation inherit, but do so in
equal shares.
[12]
‘
Stem’
in my respectful opinion is a better translation for ‘
stirps
’
(plural: ‘
stirpes
’)
than ‘stock’. See, for example,
The
Oxford Latin Dictionary
.
Moreover, when genealogies are considered, we commonly use botanical
imagery (e g ‘roots’ and ‘branches’).
[13]
(1956)
Butterworth
& Co (Africa) Ltd: Durban.
[14]
J Voet (1723)
Commentarius
Ad Pandectas
28.5.20.
[15]
Ibid.
[16]
Parkin
& others v Estate Parkin & others
(1908)
25 SC 346
at 349;
Herold
v Visser
1937 CPD 67
at 75.
[17]
See,
for example,
J Voet
Commentarius
Ad Pandectas
28.5.17 read with 28.5.20.;
Human
v Human’s Executors
(1893) 10 SC 172
at 175-6;
Stegmann
v Board of Executors
(1894) 11 SC 421
at 427;
Wannenberg
v Le Roux
(1895) 12 SC 383
at 386;
Board
v Titterton
(1896) 13 SC 164
at 168;
Parkin
& others v Estate Parkin & others
(1908)
25 SC 346
at 349;
Jansen
NO v De Bruyn
(1909) 26 SC 266
at 270;
Hopkins
v Estate Smith
1920 CPD 558
at 566;
Tredgold
v Estate Arderne
1926 CPD 25
at 32;
In
Re Estate Swanepoel
1929
OPD 98
at 102;
Erasmus
v Van der Hoven
1935 OPD 194
at 195-6;
Herold
v Visser
1937 CPD 67
at 75;
Ex
parte Platt
1951 (4) SA 394
(N) at 400;
Coetzer
NO v Bester
1952 (4) SA 73
(O) at 78;
Ex
parte Swanepoel en Andere
1960
(2) SA 357
(O) at 360;
Reek
NO v Registrateur van Aktes
1969 (1) SA 589(T)
at 592F.
[18]
See, for example,
Michau
v Michau’s Executor
(1894)
11 SC 362
at 365;
Executor
of A Neveling v Executor of P Neveling & others
(1909) 26 SC 196
at 207;
Ex
parte Oakeshott
1910 TS 895
at 900;
Ex
parte Honikman
1943 CPD 98
at 102 and
Ex
Parte Schroder NO
1956 (2) SA 148
(E) at 153.

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