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[1987] ZASCA 54
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Harris v Assumed Administrator Estate Late Leslie MacGregor (304/85) [1987] ZASCA 54; [1987] 2 All SA 321 (A) (27 May 1987)
CaseNo 304/85
1987-05-27 WHN
SHIRLEY J HARRIS
Appellant
and
ASSUMED ADMINISTRATOR ESTATE
LATE LESLIE MacGREGOR
Respondent
JOUBERT
, JA :
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE
DIVISION
In the matter between:
SHIRLEY J HARRIS
Appellant
and
ASSUMED ADMINISTRATOR ESTATE
LATE LESLIE MacGREGOR
Respondent
Coram
: RABIE ACJ et JANSEN, JOUBERT, GROSSKOPF JJ.A et KUMLEBEN
A.JA.
Date Heard
: 11 May 1987
Date Delivered
:27 May 1987
JUDGMENT
JOUBERT
, JA :
/The
2
The judgment of the Court
a quo
(delivered by TEBBUTT
J., and concurred in by BERMAN J.) is fully reported in 1985(4) SA 302 (C) under
the heading:
Ex Parte Harris : In re Estate MacGregor
. The essential
facts may be briefly stated as follows.
The appellant was married out of community of property to Leslie MacGregor
("the testator") who died on 18 December 1943, leaving
a will dated 18 September
1941 in which he created a trust in respect of the whole of his estate, in terms
of which the trust in=
come was to be paid to the appellant during her life=
time while on her death the trust capital was to devolve
/on
3
on the child or children born of his marriage to the appellant.
In the event of no issue of his marriage surviving the appellant the
trust
capital was to devolve on his brother Alexander Gordon MacGregor "subject to the
condition that in the event of the death of
my brother, ALEXANDER GORDON
MacGREGOR, before my wife, SHIRLEY JUNE MacGREGOR, leaving legal issue him sur=
viving, that the capital
of my Estate shall upon the death of my wife SHIRLEY
JUNE MacGREGOR, devolve upon and be payable to such issue in equal shares and
by
representation
per stirpes
." The will, however, made no provision for the
contingency should his
/brother
4
brother Alexander Gordon MacGregor predecease the
appel=
lant without lawful issue surviving him.
No children were born of the marriage of the
testator to the appellant.
The testator was survived
by the appellant, his mother Marie/Mary June
MacGregor
(born Oosthuizen), who died on 17 February 1960, and
his brother Alexander
Gordon MacGregor who died on 17
October 1979 leaving no lawful issue. The
position is
therefore that the contingency for which the will made
no
provision has occurred, viz. that Alexander Gordon
MacGregor predeceased the
appellant without lawful issue
surviving him. It follows that there is now an intes=
tacy as regards the devolution of the trust capital upon
the capital beneficiaries.
/The
5
The appellant and the respondent are the co-administrators of
the trust. While they agreed that the trust capital should devolve upon
the
intestate heirs of the testator, they disputed the date for determining them.
The appellant, who applied to the Court
a quo
contended that the correct
date was the date of the death of Alexander Gordon MacGregor as being the event
which gave rise to the
intestacy. The respondent's contention was that the
correct date was the death of the testator. After a comprehensive analysis of
our case law the Court
a quo
, with clearly expressed reluctance,upheld
the respondent's
/contention
6
contention. With leave of the Court
a quo
the appellant
now appeals to this Court.
The crisp point for decision is whether the intestate heirs of the trust
capital should be deter= mined with reference to the date
of the death of the
testator or to the date of the death of his brother Alexander Gordon MacGregor
when the valid and operative will
of the testator became inoperative as a result
of the occurrence of an unprovided for contingency, viz. the predecease of his
brother
Alexander Gordon MacGregor without leaving lawful issue.
/I
7
I start with an investigation of the position in our common
law, my approach being :
melius est petere fontem quam sectari rivulos
.
As early as the first half of the 3rd century A.D. several cele= brated Roman
jurists such as Gaius, Ulpian, Papinian
and Paul applied themselves to the question of the
date of vesting of an
intestate estate or inheritance in the nearest agnate or agnates of a testator
whose valid will became inoperative
or void after his death. The expressions
used to describe such a will were
testamentum ruptum
,
testamentum irritum
,
testamentum
infirmatum
,
testamentum destitutum
. Gaius Inst 3.13 concisely stated
the principle to be applied as follows:
/Ideo
8
Ideo autem non mortis tempore quis proximus fuerit requirimus,
sed eo tempore
,
quo certum fuerit aliquem intestatum decessisse
,
quia si quis testamento facto decesserit,
melius esse visum est tunc requiri
proximum
,
cum certum esse coeperit neminem ex eo testamento fore
heredem
.
(Poste's translation: The date for determining the nearest agnate is not the
moment of death,
but the moment when intestacy is certain, because it seemed
better, when a will is left
,
to take the nearest agnate at the moment
when it is ascertained that there will be no testamentary heir
.)
(My underlining.)
The other Roman jurists while agreeing with
Gaius expressed their views in
greater detail. See,
for example, D 28.2.9.2 (Paul) :
/Si
9
Si filium exheredavero nepotemque ex eo
praeteriero et alium heredem instituero et supervixerit filius post mortem
meam, licet ante aditam hereditatem decesserit, non tamen
nepotem rupturum
testamentum Iulianus et Pomponius et Marcellus aiunt. Diversumque est, si in
hostium potestate filius sit et decesserit
in eodem statu : rumpit enim his
casibus nepos testamentum, quod moriente avo filii ius pependerit, non abscisum
ut superiore casu
fuerit. Sed et si heres institutus omiserit hereditatem, erit
legitimus heres,
quoniam haec verba
'
si intestato moritur
'
ad
id tempus referuntur
,
quo testamentum destituitur
,
non quo
moritur
.
(Watson's translation: If I have dis= inherited my son and, passing over my
grandson by him, have instituted someone else as heir
and my son has survived my
death, Julian, Pomponius, and Marcellus say that although he died before the in=
heritance was accepted,
nevertheless, my grandson will not break the will.
And
/it
10
it is different if the son is in captivity and died in that
state; for in these cases, the grandson does break the will, because on
the
death of the grandfather, the right of the son is in suspense and not cut off as
it was in the previous case. But also if the
instituted heir should not accept
the inheritance he will be
legitimus heres
,
because the words 'if
there is a death intestate' are referred to at the time at which the will is
abandoned
,
not at the time of death
.)
( My underlining.)
See also D 28.3.6 pr (Ulpian), D 38.6.7 pr (Papinian), D 38.16.1.8 (Ulpian),
D 38.16.2.5 et 6 (Ulpian). In Inst 3.1.7 Justinian endorsed
the views of the
Roman jurists in the following manner:
/Cum
11
Cum autem quaeritur, an quis suus heres existere potest :
eo tempore
quaerendum est
,
quo certum est aliquem sine testamento decessisse
:
quod accidit et destituto testamento
. Hac ratione si filius exheredatus
fuerit et extraneus heres institutus est, filio mortuo postea certum fuerit
heredem institutum
ex testamento non fieri heredem, aut quia noluit esse heres
aut quia non potuit : nepos avo suus heres existet,
quia quo tempore certum
est intestatum decessisse patrem familias
,
solus invenitur nepos
. Et
hoc certum est.
(Moyle's translation : In ascertaining whether, in any particular case, so
and so is a family heir,
one ought to regard only that moment of time at
which it first was certain that the deceased died intestate
,
including
hereunder the case of no one's accepting under the will
. For instance, if a
son be disinherited and a stranger instituted heir, and the son die after the
decease of his father, but before
it
/is
12
is certain that the heir instituted in the will either will
not or cannot take the inheritance, a grandson will take as family heir
to his
grandfather,
because he is the only descendant in existence when first it is
certain that the ancestor died intestate
; and of this there can be no
doubt.)
(My underlining.)
The aforementioned texts postulate
the situation where a testator died leaving a valid will in which he instituted
a
heres extraneus
(i.e. an heir not subject to his
patria
potestas
) but where after his death the will was rendered inoperative or
void owing to any of the following circumstances, viz.:
/(i)
13
(i) the repudiation of the inheritance under the will by the instituted heir,
or
(ii) the death of the instituted heir who survived the
testator but died before he could adiate his inheritance or who died before
the fulfilment of his conditional institution as an heir,
or
(iii) the legal disqualification of the instituted heir to inherit since he
lacked
testamenti factio passiva
. In these instances the Roman jurists
maintained that the testator's supervening intestacy occurred
after his
death
. He did not die intestate since he died leaving a valid will which
ousted intestate succession. See
/D
14
D 29.2.39 (Ulpian), D 38.16.1 pr (Ulpian), Inst.
3.2.6.
When his valid will, however, became inoperative or
void after his
death for any of the abovementioned reasons
intestacy of the testator ensued
when it first became
certain
that there could be no testamentary succession
.
rt was at that stage, and not at the death of the tes=
tator, that the
identity of his intestate heirs had to
be determined. It could accordingly
happen that a
suus heres
who was not
proximus
to the testator at
his death
could be
proximus
at the time when it first
became certain that the
testator died intestate in
consequence of events occurring after his death which
rendered his will inoperative or void-
/Justinian
15
Justinian in Inst 3.2.6 clearly sets out the two different
stages at which intestacy could occur, depending on whether the deceased
died
without leaving a valid will or died leaving a valid will which sub= sequently
became inoperative or void :
Proximus autem, si quidem nullo testamento facto quis decesserit, per hoc
tempus requiritur, quo mortuus est is cuius de haereditate
quaeritur. Quod si
facto testamento quisquam decesserit, per hoc tempus requiritur, q
uo certum
esse coeperit nullum ex testamento heredem extaturum
: tum enim proprie
quisque intelligitur intestatus decessisse. Quod quidem aliquando longo tempore
declaratur : in quo spatio temporis
saepe accidit, ut proximiore mortuo proximus
esse incipiat, qui moriente testatore non erat proximus.
/(Moyle's
16.
(Moyle's translation : If a man dies without having made a
will at all, the agnate who takes is the one who was nearest at the time
of the
death of the deceased. But when a man dies, having made a will, the agnate who
takes (if one is to take at all) is the one
who is nearest
when first it
becomes certain that no one will accept the inheritance under the testament
;
for until that moment the deceased cannot properly be said to have died
intestate at all, and this period of uncertainty is sometimes
a long one, so
that it not unfrequently happens that through the death, during it, of a nearer
agnate, another becomes nearest who
was not so at the death of the
testator.)
(My underlining.)
Von Savigny (1779-1861), the great German
legal historian and jurist, in his
System des heutigen Romischen
Rechts
, 1849, vol 8, p 485-486 furnishes
/us
17
us with a very lucid exposition, based on Roman law, of the
aforementioned two stages at which intestacy could occur.
Donellus
(1527-1591), the well-known French jurist, in his
Commentarius de Jure
Civili
, 1941 Lib. 2 cap. 8, stresses, on the authority of the relevant texts
from the
Corpus Juris Civilis
, that supervening intestacy occurs at the
time when it first becomes certain that a testator's will has become inoperative
or void
after his death. See also the German jurist, Brunneman (1608-1672) ad D
28. 2.9.2 nr 2 and ad D 38.6.7 pr nr 1.
/Roman-Dutch
18
Roman-Dutch law adopted the abovementioned principles of Roman
law relating to the vesting of intestate inheritances. See the comprehensive
com= mentary of Vinnius (1588-1657) ad Inst. 3.1.7 and Inst. 3.2.6. See also
Paul Voet (1619-1667) ad Inst 3.1.7. Of the utmost importance
is the fact that
Van der Vorm, the leading Roman-Dutch authority on intestate succession, stated
unequivocally in his
Verhandeling van het Hollandsch
,
Zeelandsch en de
West
=
vrieslandsch Versterfrecht
, 1774, Tweede Deel van Erfenisse by
Versterf, p 7, para 4 the following:
Hier staat te noteren, dat, als een testament
eerst na dood van den Testateur zyne kracht
/verliest,
19
verliest, men dan niet moet inzien, wie de naaste is geweest
tot de successie ten tyde van 't overlyden,
maar wie de naaste is ten tyde
van 't verval van het testament
: D 38.16.1.8, 2.5 et .6, Inst. 3.1.7, 3.2.6
et ibi Vinnius, want de erfenis by versterf heeft niet plaats voor dat het zeker
is,
dat niemand erfgenaam uit het testament zyn zal D 29.2.39.
(My underlining).
The position according to our common law regarding the vesting of an
intestate estate and the determination of the intestate heirs
may therefore be
summarized as follows : 1. Where a deceased dies without having made a valid
will at all, or without leaving a valid
will, his intestate
/estate
20
estate vests on the date of his death when his in= testate
heirs have to be determined. 2. Where a testator died leaving a valid will
which
took effect on his death but which subsequently became in= operative, either
in toto
or
pro parte
, intestacy then occurs and his intestate
estate vests on the date when it first became certain that his will had become
inoperative.
His intestate heirs have to determined, not at his death, but when
intestacy occurred.
In
Union Government (Minister of Finance) v. Olivier
,
1916 AD 74
this
Court had to decide an issue concerning the exemption from paying transfer
/duty
21
duty in terms of sec. 4(1) of Act 30 of 1908 (OFS).
In the course of construing this section JUTA, AJA,
stated at p 90 :
"By the words 'a descendant who is also an heir
ab intestato
of such
deceased person' is meant one who,
if the deceased had died without a
will
would have been an heir ab
intestato
. In determining who are the
heirs
ab intestato
of a deceased person regard must be had to the date of
his death."
(My underlining).
It is clear from the first sentence of this
dictum
that JUTA, AJA,
confihed himself to intestacy which occurred where a deceased had died without a
valid will. As I have indicated
supra,
the vesting of
/the....
22
the intestate estate of such a deceased person will, according
to our common law, occur at the date of his death when his intestate
heirs have
to be determined. The second sentence of the
dictum
, read in conjunc=
tion with the first sentence thereof, is therefore correct in regard to a
deceased who died without a will or a
valid will. The second sentence of the
dictum
does not, and was not intended to, deal with the in= stance of
supervening intestacy where a testator died leaving a valid will which
took
effect on his death but which subsequently became inoperative. Unfortunately
there are some cases in which our courts, without
/having
23
having had regard to the principles of our common law, wrongly
assúmed that the second sentence of the
dictum
was a universal
principle of our law which was also applicable to instances of supervening
intestacy where a testator died leaving
a valid will which subsequently became
inoperative. Such cases were clearly wrongly decided and should therefore not be
followed.
When the testator in the present case died leaving a valid will which took
effect on his death, intestacy was ousted. Intestacy subsequently
occurred when
his will became inoperative to provide testamentary beneficiaries for his trust
capital. That occurred when his brother
/Alexander
24
Alexander Gordon MacGregor died on 17 October 1979 leaving no
lawful issue. On that date the appellant in terms of sec. 1(1)(d) of
the
Succession Act no 13 of 1934 became the testator's sole statutory intes= tate
heir of his trust capital.
The appellant is now the sole income be= neficiary
of the trust income while she also became the sole heir of the trust capital on
17 October 1979. That being so, the appellant is entitled to waive her right to
receive the income under the trust during her lifetime,
by claiming payment of
the trust capital, as she does, in her Amended Notice of Motion. The
/respondent
25
respohdent does not oppose her prayer for the distri= bution
to her of the trust capital. Compare
In re Estate Ansaldi
,
1950 (4) SA
417(C)
at p 420 A.
The result is that the appeal must succeed. The following order is made:
(a)
The appeal is upheld with
costs. The costs of the parties are to be paid out of the capital of the estate
of the late Leslie MacGregor.
(b)
The order of
the Court
a quo
is set aside and the following order is substituted
therefor:
/"An
26
"An order is granted in the following terms :
1. Shirley
June Harris (formerly MacGregor, born Oates)
is the sole intestate heir of the late Leslie MacGregor.
2.
The administrators in the
estate of the late Leslie MacGregor are authorised to pay forthwith to the said
Shirley June Harris the
capital of the said estate.
3.
The costsof the parties in this application are to be paid out of the
capital of the said estate."
C.P. JOUBERT J.A.
RABIE A CJ
JANSEN JA
Concur GROSSKOPF JA
KUMLEBEN A JA