DE WET v DE WET AND OTHERS 1951 (4) SA 212 (C)

1951 (4) SA p212

Citation

1951 (4) SA 212 (C) Cape Provincial Division Steyn J, and Van Winsen J August 15, 1951 August 31, 1951 Link to Case Annotations

Court

Judge

Heard

Judgment

Annotations

A Flynote : Sleutelwoorde

Will - Variation of terms of - Testament directing manner and date when immovable property should be sold - Beneficiaries entering into an agreement of sale in conflict with terms of will Agreement B not valid - Not a case in which Court will interpose its sanction.
Headnote : Kopnota A legatee's interest under a will is limited to what has been given to him thereunder and an executor must administer and distribute the estate of a deceased person in strict accord with the terms and directions contained in such person's will, if any. Acts and agreements by and C between beneficiaries and executors which vary or modify the terms of a will are invalid and unenforceable unless sanctioned by the Court, which sanction is given only in certain excepted cases. In terms of a will the testators' daughters were individually given the right to purchase the testators' farm, failing which it was to be sold by public auction after the death of the survivor, the proceeds to be divided between such D daughters. In terms of a purported agreement between the applicant, the executors, and the beneficiaries who were all majors, the beneficiaries waived their rights to purchase the farm and agreed to an underhand sale to the applicant by the executors of the estate, for a specified sum subject to the usufruct of the surviving testator, transfer and payment of the purchase price to be effected on the death of the survivor. As a beneficiary thereafter repudiated the agreement applicant now applied E for an order declaring the agreement valid. Held, as the agreement was in conflict with the terms of the will it was not valid without the sanction of the Court. Held, further that it did not fall within the ambit of the excepted cases which would justify the Court in interposing its sanction. F Case Information Application for a declaratory order under sec. 102 of Act 46 of 1935 that a certain written agreement departing from the terms of a will was valid and enforceable. The facts appear from the reasons for judgment. G H. E. P. Watermeyer, K.C. (with him P. Charles), for the applicant: The real issue is: what is the legal effect of the contract? Is it valid although it departs from the terms of the will? It was signed by all interested parties, being sui iuris, but is attacked because (a) it provides for a sale out of hand and not by auction, (b) it substitutes a fixed date for 'after the death of the survivor'. It does not follow H that a contract is invalid or illegal per se because it is in conflict with a will. No such principle appears in any text-books on the Law of Contract. It is quite clear that in certain circumstances the Court will itself sanction a departure from the terms of a will. See Ex parte Visagie, 1940 CPD 42 at pp. 52 - 54. Further there is the fundamental principle that contracts made by persons sui iuris freely and voluntarily should be held sacred and carried out. See Wells v SA Alumenite Co., 1927 AD 69 at p. 73. There is a line of cases where the Court

1951 (4) SA p213

has said that, although it cannot authorise a departure from the terms of the will, the difficulty could be overcome by all interested parties agreeing; i.e. the Court implied that such a contract would not be invalid. See Ex parte Trustees Adam, 1927 NPD 314 at p. 318; Ex parte Watson's Heir, 1941 W.L.D. 100 at p. 105; Ex parte Knight, 1946 CPD A 800 at pp. 811, 818; Ex parte van der Riet, N.O., 1941 E.D.L. 220; Ex parte du Plessis, 1912 CPD 701; Ex parte Naude and Others, 23 S.C. 7; Ferreira v Otto, 3 S.C. at p. 197; Weyer v Estate Weyer, 1938 E.D.L. 242 at p. 267; Ex parte le Roux and le Roux, 1941 (2) P.H. G. 44; Ex B parte Dittman, N.O., 1919 OPD 103; Ex parte Potgieter, 1926 OPD 150. Ex parte le Roux, 16 C.T.R. 929, and Ex parte Rogers, 18 C.T.R. 458 are distinguishable because there minors were involved. In Ex parte Block, 1936 W.L.D. 48 and Ex parte Estate Macpherson, 18 C.T.R. 154 the Court did authorise a departure from the will. It seems that the C Courts have drawn a distinction between granting their approval to a scheme on behalf of minors and sanctioning what all interested parties being majors have agreed upon. Ex parte Burstein, 1941 CPD 87, is distinguishable, because the Court there held that it had no discretion; here we are not asking the Court to exercise any discretion. D Cf. Ex parte Devenish, 1931 CPD 280. Ex parte Trustees Estate Lowenthal, 1939 T.P.D. 250, might seem prima facie to be against me. But that case merely decided that, if it is quite clear that testator thought that the plan set out in the will was E a good one for the beneficiaries, the plan must be carried out. If it were taken to decide that there could be no departure from a scheme of investment then it would virtually be in conflict with Knight's case, supra. The Court can in general, save where testator's intention as above is clear, from the will's surrounding circumstances and the F Court's own knowledge, impute to the testator the intention that the estate should be distributed in the most convenient manner possible. A direction that a bequest shall not be paid till legatee is 21 or to invest in Government stock would show that testator intended it in the best interests of the beneficiary. Here there is no such deliberate G scheme. In any event the case is distinguishable since (1) it was held that the Court had no power to sanction family arrangements, and that is not sought here, and (2) thedictum is obiter and too wide; or (3) if not too wide but is correct then the principles applicable there do not apply in the present case. M. A. Diemont, K.C. (with him P. J. Wessels), for the respondents: Sec. 52 of Act 24 of 1913 provides that the Master's leave is required to sell estate property out of hand. Also a certificate by the Master under sec. 62 (3) is essential to the validity of the sale. See Pohl Bros v

Estate Hansen, 1930 CPD 339. The contract might be valid but it could not be enforceable until sec. 52 was complied with. In any event, the contract is not valid since the excutors had no legal capacity to enter into it. They are

1951 (4) SA p214

not able to act as private individuals being in a fiduciary capacity. They must look to the terms of their empowering instrument to discover A what powers they have. They are confined to giving effect to the terms of the will, when making contracts and investments. See Meyerowitz on Estates at p. 227. Here directions both as to time for and manner of sale have been given by testator; consequently, the executors cannot contract in any other manner. Thus, they have no capacity to enter into any such contract which is accordingly invalid. Nor can the Master B supplement their powers, at any rate where the will is clear. [VAN WINSEN, J.: If trustees and cestuis que trustent all agree why can they not conjointly take a particular line?] The Court has no power generally to add to executors' powers, and here C the applicant makes no effort to obtain the Court's assistance in this regard. All that was said in Adam's case, supra, was that the executors need not fear the consequences of having done something ultra vires because all interested parties consented. The Court did not say that the contract was valid; merely that the risk of their being sued D was very slight. See also Ex parte Estate Liberman, 1933 CPD 451 at p. 453, where the Judge refers to the responsibility for their decision. Where the will creates a scheme beneficiaries cannot waive rights and confer extra powers on the executors. See Steyn on Wills at p. 89, approved in Lowenthal's case, supra. In Ex parte Coetzer, 1942 CPD E205, the Court held that it had no power to approve the proposed arrangement because it was in conflict with the will. Hence the executors have not the necessary capacity; they cannot get it from the Court - nor is it here sought - and not from the beneficiaries; for if they could there would be no limit to the powers that could be F conferred upon them by beneficiaries. Lowenthal's case, supra, which is a full bench decision is on all fours and is indistinguishable. Watermeyer, K.C., in reply: Contract need not be enforceable at the moment; Master only called on to grant a certificate under sec. 62 (3) G of Act 24 of 1913 upon transfer out of the estate. Sec. 52 does not create a general rule to realise estate property by public auction. See Meyerowitz on Estates at p. 93; Howard (6th ed. at p. 113 and authorities there cited). Sec. 52 is merely a protection for executors. There is no requirement that a certificate under sec. 62 must be H obtained for sale to be valid. Pohl Bros.' case, supra, does not bear out respondent's contention. See pp. 345 - 346. In Williams v Williams; 13 S.C. 200, it was held that where an executor sold estate property it could not be followed into the hands of a bona fide purchaser; hence it is clear that an executor has some capacity even though acting outside of the will. If the contract a nullity that could be set up as against anybody including a bona fide purchaser. A fiduciary and a fideicommissary can together alter an arrangement. In Liberman's case, supra, there was no agreement for the Court to declare valid. Coetzer's case,

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STEYN J supra, is clearly distinguishable, for there the will prohibited transfer for five years. Cur. adv. vult. A Postea (August 31st). Judgment STEYN, J.: This is an application on notice of motion for an order declaring a certain written agreement entered into between the applicant and the respondents to be valid and enforceable. B The first two respondents are the executors testamentary in the estate of the late Elizabeth Christina Hermina de Wet (born Wessels), hereinafter referred to as the testatrix, who died on the 20th March, 1949. C In her lifetime the testatrix was married in community of property to Philippus Lodewicus de Wet, who survived her. With him, she executed a joint will, dated 19th February, 1948, wherein, by clause 2, they provided as follows: -

Dit is ons wil en begeerte dat ons plaas, Goeresoe, distrik Swellendam, sal verkoop word deur privaat ooreenkoms op die dood van die eerssterwende van ons aan enige een van ons kinders wat D die hoogste bod daarvoor sal maak, en sulke bedrag sal dan deur sulke kind betaal word op die dood van die langslewende van ons. Die koopsom sal verdeel word eweredig tussen ons ses kinders, naamlik: Cornelia Gertruida Willemse (gebore de Wet), Anna Dorothea Van Wyk (gebore de Wet), Elizabeth Hermina du Toit (gebore de Wet), Dorothea Johanna Swart (gebore de Wet), Johanna Christina de Wet, en Philippina du Plessis (gebore de Wet). E Ingeval niemand van ons gesegde ses kinders ons plaas wil koop nie, dan sal dit na die dood van die langslewende van ons op publieke vandisie verkoop word en die opbrengs verdeel word soos hierbo. Hierdie bemaking is onderworpe aan die kondisie dat die langslewende van ons die vruggebruik van die gesegde plaas gedurende sy of haar leeftyd sal geniet.'
F The remaining provisions of the will are not really matterial hereto, but it may be mentioned that it contains other bequests, that the surivor is appointed residuary heir, that in clause 5 it is expressly provided: G

'2.

'5.

Alle bemakings bevat in dit, ons testament aan ons gesegde ses kinders, sal gaan tot hul afstammelinge staaksgewyse ingeval enige van hul te sterwe kom voor die dood van die eerssterwende van ons,'

and that the survivor and the daughter Cornelia are the nominated as executors testamentary: as such, the latter are the first respondents. The remaining respondents are the aforesaid six daughters, the husbands H of those married in community of property being cited to represent them. The daughter Cornelia, being a respondent as one of the executors and also in her individual capacity, is hereafter referred to as the second respondent. On the 29th June, 1949, the applicant and the respondents purported to enter into a written agreement, wherein the aforementioned six children - duly assisted by the husbands of those who were married - waived their individual rights to purchase the

1951 (4) SA p216

STEYN J said farm Goeresoe in terms of clause 2 of the will, and agreed to an underhand sale of the said farm to the applicant by the first two respondents, as executors in the estate, for the sum of 8,533, subject to the usufruct of the surviving testator, the first respondent A transfer and payment of the purchase price to be effected on the death of the first respondent. The agreement was not, in express terms, made subject to the approval of the Master of the Supreme Court. Thereafter the second respondent purported to repudiate the agreement of B sale, and in the result, applicant is seeking a declaratory order under sec. 102 of Act 46 of 1935 that it is valid and enforceable. The grounds of second respondent's repudiation were twofold: the first was that her consent to the agreement was obtained by undue coercion, C and the second was that the agreement was in any event invalid as being ultra vires the will. At the hearing Mr. Watermeyer, who appeared for the applicant, and Mr. Diemont, who appeared for the second respondent, agreed that the first ground of second respondent's repudiation, involving as it did a D disputed of facts, could not be decided in these motion proceedings. Thereupon Mr. Diemontindicated that his client was prepared to abandon her first ground for repudiating the agreement, and both counsel then asked the Court to hear argument and to pronounce upon the validity of the agreement. This the Court undertook to do upon the basis that all E the parties had given their consent to the agreement. In the present enquiry, there appear to me to be two general propositions which cannot, I think, be disputed. The first is that a legatee's interest under a will is limited to what has been given to him F thereunder, and the second is that an executor must administer and distribute the estate of a deceased person in strict accord with the terms and directions contained in such person's will, if any. It is also, I think, implicit from the numerous cases which have been decided in our Courts upon applications for relief, whether by beneficiaries G under a will or by

executors, that acts and agreements by and between them which vary or modify the terms of a will are invalid and unenforceable unless sanctioned by the Court, which sanction is given only in certain excepted cases. In the will under consideration, the testator's daughters were H individually given the right to purchase the testator's farm Goeresoe, but this right they have now renounced. Having renounced it, they are merely left with the right entitling them to share equally, after the death of their father as survivor of the testators, in the proceeds of the farm upon its realisation. They have no right in or over the farm itself, nor have they any right of say in the manner, or as to the date, of its realisation. In regard to the latter, the testators gave express directions in the will, namely (i) that it must be sold by public auction, and (ii)

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STEYN J that such sale must be effected after the death of the survior of the testators. Prima facie, therefore, the agreement under consideration is invalid in that it anticipates the date and manner of the realisation of the farm; it is therefor in conflict with the terms of the will and, A accordingly, invalid without the Court's sanction thereto. But Mr. Watermeyer submitted that in a case such as this, where the beneficiaries under a will are all majors and agree with the executors to a departure from the terms of the will, then such agreement is per se B valid and binding upon the parties thereto. For this proposition he cited the cases of Ex parte Trustees M. H. Adam, 1927 NPD 314; Ex parte Watson's Heirs, 1941 W.L.D. 100; and Ex parte Knight and Others, 1946 CPD 800; and he drew attention to the form of order made in the last cited case. In Ex parte Trustees M. H. Adam, supra, the applicant trustees were C authorised by will to sell certain estate assets at not less than a fixed price, and to invest the proceeds in a particular manner, and their application to sell at a lesser figure and to invest the and their application to sell at a lesser figure and to invest the proceeds in a manner which was not strictly in accord with the will was refused by the Court on the grounds that; (i) the Court had no jurisdiction to make a D new will for the testator, (ii) it also had no jurisdiction to protect the executors should they act contrary to the will, and (iii) it had not been shown that the directions of the will were incapable of being carried out. In the course of his judgment, however, DOVE - WILSON, J.P., added: 'It is a different matter where there is an agreement by the E beneficiaries under the will. If all the beneficiaries,

being majors, agree to a departure from the terms of the will, then the executors may act upon that agreement without fear of being called to account, not because the will is altered, but because of the agreement that it may be disregarded.'
In the next case of Watson, supra, RAMSBOTTOM, J., also refused to F authorise administrators to depart from the specific directions of the deceased in his will as to the manner in which the funds in his estate were to be invested, but in his judgment gave the unsuccessful applicants the useful hint that

'the suggestion contained in the passage from the judgment of DOVE-WILSON, J.P., which I have just quoted may, however, solve the applicant's difficulties'.
G I referred to this same passage in my judgment in Knight's case, supra at p. 811 of the report, and it was in the light of that citation that the order therein made must be construed. Now the basis of the dictum of DOVE - WILSON, J.P., is not that the agreement to depart from the terms of the will is per se valid: if that H were so, all agreements between beneficiaries under a will with the executors would be valid, even though wholly in conflict with the provisions thereof. And this is not a sound proposition, because otherwise out Courts would have had the power and jurisdiction to sanction them, but they have consistently refrained from doing so. In my opinion, the learned Judge's dictum merely indicates a means of escape from the will, namely: 'do not come to Court for sanction, because such sanction cannot be given; if

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STEYN J you do not come, there is no one to bring you to account, regardless of the strict legality of your conduct.' Now, in the cases cited above, the applicants were trustees or A administrators and the dictum may avail them in special circumstances, but I can hardly see how it can be appliced by executors qua executors. In my opinion, the use of the word executors in the quoted dictum is perhaps unfortunate in that executors are always subject to the control and supervision of the Master, whose duty it is to see that the terms of B a will are complied with. In the case of trustees and administrators the position is, however, different in some cases, as where trusts are created and the control and administration of the trust moneys is vested in the appointed administrators. In many of these trusts the Master would have no effective control if departures from the terms of the trust were not reported, and no report would be made C because it would be in the interest of the interested parties not to report. For the above reasons, I am of the opinion that the agreement under consideration was not a valid agreement without the sanction of the Court, and I may add that, even if I were to hold that it is valid per D se, then such finding ought not to be of much or any assistance to the applicant, in that it will be the duty of the Master, in the exercise of the duties imposed upon him by virtue of his office under the Administration of Estates Act, to veto the agreement as being contrary to the terms of the will, when the executors render to him their account E in discharge of their duties in the administration and distribution of the estate. As an alternative to his main submission, Mr. Watermeyer asked the Court to hold that the agreement was one which falls within the ambit of the excepted cases which the Courts have heretofore sanctioned. F Now the Court has no general discretionary power to modify or supplement rights given under a will or to authorise the property of a testator to be dealt with otherwise than in terms of his will: see judgment of WATERMEYER, J.A., in Jewish Colonial Trust Ltd v Estate G Nathan, 1940 AD 163 at pp. 182 - 183. The Court has, however, in the past sanctioned a variation or modification in excepted cases: thus, by statute - Act 2 of 1916 - the Court is empowered to sanction dealings with estate property contrary to the terms of a will in circumstances detailed in the statute, and in passing I may mention that it may well be implied that the Legislature assumed that all departures H from the terms of a deceased's will in regard to his assets could only be effected under sanction of the Court, and, therefore, agreements without such sanction could not be recognised. Be this as it may, the Court has also in other cases, not covered by statute, sanctioned a modification or variation: thus, where the circumstances are such that it is impossible to give effect to the testator's wishes, or where the testator has imposed conditions upon the devolution of property which are deemed to be nude prohibitions, etc., and in other types

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STEYN J of cases or circumstances, all of which need not now be set out, the Court has exercised an inherent jurisdiction and given relief involving a modification of the will. Mr. Watermeyer, in asking the Court to sanction the agreement, relied upon a passage in the judgment of A SCHREINER, J., as he then was, in Ex parte Trustees Estate Lowenthal, 1939 W.L.D. 78 at p. 81 - confirmed on appeal, 1939 T.P.D. 250 - where the learned Judge said: -

'Moreover, a distinction should, in my opinion, be drawn between cases where the only issue relates to the respective shares or interests of beneficiaries and cases where the testator has made a plan regarding the investment of his estate moneys or the date of realisation or B distribution of the assets. In the former class of case, since the beneficiaries after receiving delivery of their shares could contract with each other in regard thereto, so they could, all being majors, concur before distribution in a re-arrangement of the benefits. Such an agreement would apparently be binding on all of them. In such cases it would be assumed that the testator intended the beneficiaries to be free to deal with their interests as they might please.'

C Here it may be pointed out that the legatees have not yet received their shares, but even if they had, I fail to see how it can be assumed that the testators could ever have intended their children to have a right to vary their express directions that the farm was to be sold after the death of the survivor and by public auction, provisions which D may well have been inserted for a variety of motives influencing them and which it is not necessary to detail. Mr. Watermeyer did not cite any other circumstances justifying us in sanctioning the proposed variation or modification of the will so as to bring this case within the ambit of those justifying the Court in interposting its sanction. The Court is E always reluctant to sanction a clear breach of a testator's wishes, and in this connection I need only cite the case of Ex parte Coetzer, 1942 CPD 205, where a farm was bequeathed to the four sons of the testator in equal shares subject to the condition that no division of the farm or F transfer of the portions bequeathed to the sons, respectively, should take place or be given to them until five years from the date of death of the survivor and where, notwithstanding the consent of all the interested parties, the Court refused to grant an order authorising transfer prior to the date fixed in the will, the learned Judge, DE G VILLIERS, J., holding that he had no power to grant the order which was applied for. For the above reasons, I am of the opinion that the application must be refused, and it is so ordered. The applicant is also ordered to pay the costs of the proceedings. VAN WINSEN, J., concurred. H Applicant's Attorneys: Mostert & Bosman. Respondents' Attorneys: Proctor de Villiers & Co.