Denyssen (Secretary of The South African Association for the Administration and Settlement of Estates) v Mostert
| Jurisdiction | UK Non-devolved |
| Judgment Date | 23 April 1872 |
| Date | 23 April 1872 |
| Court | Privy Council |
English Reports Citation: 17 E.R. 400
ON APPEAL FROM THE SUPREME COURT OF THE CAPE OF GOOD HOPE.
Mews' Dig. tit. Colony, II. Particular Colonies, 5. Cape of Good Hope; tit. Will, II. Testamentary Instruments, etc., b. Foreign and Colonial, V. Revocation, a. Principles as to. S.C. L.R. 4 P.C. 236; 41 L.J. P.C. 41; 20 W.R. 1017. Approved, Dias v. De Livera, 1879, 5 App. Cas. 123.
[502] ON APPEAL FROM THE SUPREME COURT OF THE CAPE OF GOOD HOPE. ABRAHAM DENYSSEN, as Secretary of The South African Association for the Administration and Settlement of Estates,-Appellant; SYBRAND JACOBUS MOSTERT,-Respondent * [April 19, 20, 23, 1872]. Exposition and effect of the Roman-Dutch Law prevailing in the Cape of Good Hope, in respect to a mutual Will made by Husband and Wife. First, such mutual Will is to be construed as a separate Will; the disposition of each spouse being treated as applicable to his or her half of the joint property [8 Moo. P.C. (N.S.) 526]. * Present:-Sir James William Colvile, Sir Montague Edward Smith, and Sir Robert Porrett Collier. 400 DENYSSEN V. MOSTERT [1872] VIII MOOEE N.S., 503 Secondly, each spouse is at liberty to revoke his or her part of the Will during the co-Testator's lifetime, with or without communication with the co-Testator, or after the co-Testator's death [8 Moo. P.O. (N.S.) 526, 527]. The power which a surviving spouse lias to revoke a mutual Will, as far as affects half of the property, is taken away upon the concurrence of two conditions : (1) where the Will disposes of the joint property on the death of the survivor, the property being consolidated into one mass for the purpose of a joint disposition of it; and (2), if the survivor has accepted some benefit under the Will [8 Moo. P.O. (N.S.) 527]., A mutual Will made by Husband and Wife having community of goods, providing for payment of debts, with provision for Children and Grandchildren, and nominating sole and universal heirs:-Held, to be revocable by the surviving spouse, who had not adiated or accepted the provisions therein given, so far as affected her property, and that she was entitled to claim her half of the inheritance. This appeal was brought from a judgment of the Supreme Court of the Colony of the Cape of Good Hope, in an action wherein the Appellant, in ,his capacity of Secretary of the South African Association for the administration and settlement of estates, was Plaintiff, and the Respondent was Defendant. [503] The Appellant sued for and on behalf of the Association as the cessionaries of a Mortgage Bond or Deed of hypothecation, dated the llth of November, 1859, executed by the Respondent in favour of one Cornelis Mostert, sen. (since deceased), for securing payment of the sum of 3750 with interest. Cornelis Mostert, sen., the Mortgagee, was the Husband of Elizabeth Jacoba Mostert, nee Louw, to whom he was married in community of property. He was the Owner and cultivated a Farm near Cape Town called " Valkenberg." Becoming advanced in years he quitted agricultural pursuits, and sold his Farm " Valkenberg " by public sale to the Respondent, who was his Nephew and his Son-in-law, having married Isabella Petronella Hester, one of his Daughters. After the sale, the Respondent, in the year 1856, became insolvent, according to the Law of the Colony of the Cape of Good Hope; not having paid the purchase-money for the Farm " Valkenberg." Becoming certificated in the year 1859, the Respondent was enabled, by an arrangement between him and Cornelis Mostert, sen., and Sybrand Jacobus Mostert, sen., the Respondent's Father, to remain or become again the proprietor of the Farm. Under this arrangement, and for securing the purchase-money, the Respondent, by his Attorney, executed in favour of Cornelis Mostert, sen., the Mortgage Bond, or Deed of hypothecation, of the llth of November, 1859, sued upon by the Appellant. By this Bond the Respondent hypothecated the Farm " Valkenberg " for securing the sum of 3750 and for interest thereon at the rate of 6 per cent, per annum, with arrears of premiums of assurance which might be due by the Respondent on the premises hy-[504]-pothecated, and after engaging to keep the buildings thereon insured against Fire, the Respondent thereby authorized Cornelis Mostert sen., to pay the premiums of insurance, in the event of the Respondent not doing so. Sybrand Jacobus Mostert, sen., became by this Bond bound in solidwn as surety for and joint principal Debtor of the above capital sum, and interest as might become due thereon. On the 31st of August, 1860, Cornelis Mostert, sen., and Elizabeth Jacoba, his Wife, made together, in the manner customary in the Colony of the Cape of Good Hope, a mutual Will. This Will, made before a Notary Public, was in Dutch, the language spoken by the Testators and their family. It declared their Will to be:-First, to bequeath, as pre-legacy, to the survivor of them (with liberty to accept such legacy or not) the garden or estate then occupied by the Testators, called Welgedaan, with all fixtures thereon, and everything which might be brought under the denomination of move-able property, trinkets, and cattle, and which might be, at the death of the first dying of the Testators, upon or in any part of the garden or estate, and in any of the buildings erected thereon, and which belonged to the estate of the Testators, and all that together, for a sum of 3000 sterling, to be by the survivor of the Testators 401 VIII MOOEE N.S., 505 DENYSSEN V. MOSTERT [1872] brought into the estate of the first dying of the Testators for the same. Secondly, the Testators bequeathed (after the death of the survivor of them) to be paid out and satisfied: to their Grandchildren, John Bernard and Cornelis Mostert Bernard (being children of their then deceased Daughter, Elizabeth Christina Mostert, procreated in [505] marriage with Jan Fredrik Bernard), jointly the sum of 300 sterling; to their Daughter, Maria Carolina Mostert, married to Jan Fredrik van Keenen, the sum of 300 sterling; to their Son, Adriaan Sybrand Mostert, a sum of 300 sterling; to their Son, Tobias Cornelis Mostert, a sum of 300 sterling; to their Daughter, Isabella Petronella Hester Mostert, married to the Respondent, Sybrand Jacobus Mostert, jun., a sum of 300 sterling; to their Daughter, Jacoba Anna Mostert, married to Jacobus Johannes Meintjes, a sum of 300 sterling; and to their Son, Jan Fredrik Mostert, a sum of 300 sterling; with the stipulation, that in case one or more of the above-named Legatees (all of whom were likewise instituted as heirs under the Will) should offer any opposition to any one of the stipulations attached to their institution as heirs, and connected therewith, such Legatee or Legatees thus opposing the same as heir or heirs should forfeit all his, her, or their right or title to his, her, or their legacy; and every such legacy was, with regard to such Legatee or Legatees offering opposition as heir or heirs, revoked by the Will, with further stipulation, that every such forfeited and revoked legacy should be considered as belonging to and forming part of the estate, and should serve to increase the inheritance of the heirs generally. Proceeding to the appointment of heirs, the Testators appointed as their sole and universal heirs:-First, the survivor of the Testators; second, their Son, Cornelis Mostert; third, the' children of their Daughter, Elizabeth Christina Mostert, procreated in marriage with Jan Fredrik Bernard; fourth, the Daughter of the Testators, Maria Carolina Mostert, [506] married to Jan Fredrik van Reenen; fifth, the Son of the Testators, Adriaan Sybrand Mostert; sixth, their Son, Tobias Cornelis Mostert; seventh, their Son, Johannes Andreas Mostert; eighth, their Daughter, Isabella Petronella Hester Mostert, married to the Respondent, Sybrand Jacobus Mostert, jun.; ninth, the Daughter of the Testators, Jacoba Anna Mostert, married to Jacobus Johannes Meintjes; and tenth, the Son of the Testators, Jan Fredrik Mostert, in equal shares, and in case of predecease of one or more of them, their lawful descendants by representation per stirpes; and in all the goods and effects relinquished by the Testators' inheritances and successions, nothing in the world excepted; subject, however, to certain stipulations therein specified (set forth in extenso in the judgment, post, p. 518); and appointed as Executors, Testamentary Administrators of the estate, and Guardians of the Minor, and fidei commissary heirs, the Testator's Wife and the Appellant Association, reserving " to themselves the power and right thereafter to make such alterations or additions to that their Will as they might wish or desire, either at the foot thereof under their own signatures, or by separate Deed," a power which they exercised by executing a Codicil the year following regarding the share for excess of inheritance that should fall to their Daughter, Jacoba Anna Mostert, by reason of the stipulations in the. Will contained, which such Codicil declared, should remain burthened with the entail of fidei commissum with all the stipulations and conditions attached to the same. The Testator, Cornelis Mostert, died on the 15th of December, 1862. [507] His Widow, the surviving Testatrix, together with the Appellant Association, her co-executors, on the 23rd of December, 1862, deposited the joint Will and Codicil with the Master of the Supreme Court in the Colony, and obtained from him the usual certificate or Letters of Administration, certifying that she and the Appellant Association had been duly appointed Executors testamentary, and authorizing them as such to administer her Husband's estate. On the 21st of January, 1863, the Widow Mostert, in exercise of the option given to her by the joint Will of the 31st of August, 1860, wrote to her...
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Estate Gonsalves v Pataca and Others
...by the execution of further wills. It was found by the Privy Council in the case of Secretary, South African Association v Mostert, 8 Moo. P.C.N.S. 502; 1873 Buch. 31, to be a general rule of law that a mutual will, notwithstanding its form, C is to be read as the separate wills of the two ......
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Estate Gonsalves v Pataca and Others
...by the execution of further wills. It was found by the Privy Council in the case of Secretary, South African Association v Mostert, 8 Moo. P.C.N.S. 502; 1873 Buch. 31, to be a general rule of law that a mutual will, notwithstanding its form, C is to be read as the separate wills of the two ......