Source:
South African Law Reports, The (1947 to date) / CHRONOLOGICAL LISTING OF CASES - January 1947 to April 2021/1962 / Volume 3: 669 995 (September) / EX PARTE
BOEDEL STEENKAMP 1962 (3) SA 954 (O)
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EX PARTE BOEDEL STEENKAMP 1962 (3) SA 954 (O)
1962 (3) SA p954
Citation
1962 (3) SA 954 (O)
Court
Orange Free State Provincial Division
Judge
De Villiers R
Heard
June 21, 1962
Judgment
July 5, 1962
Annotations Link to Case Annotations
Flynotes: Keywords
Testament Kind in ventre matrix When entitled to inherit on an equal footing with other children already born at the death of the testator.
Headnote: Kopnota
The testator bequeathed the remainder of his estate in equal parts to his daughter and her children of the first generation 'who are alive at the date of death'.
Definitely, that for the purposes of inheritance a child in ventre matrix shall be presumed to be alive, and entitled to inherit equally with his mother, the testator's daughter, and
her other children already born at the death of the testator.
Flynotes: Keywords
Will Child in ventre matrix When entitled to inherit in equal shares with other children born before the death of the testator.
Headnote: Kopnota
The testator had bequeathed the residue of his estate in equal shares to his daughter and her children of the first generation 'living at his death'.
Hero, that a child in ventre matrix had to be presumed to be alive for the purpose of inheritance, and was entitled to inherit equally with his mother, the testator's daughter,
and her other children already born at the death of the testator. C
Case Information
Application for the interpretation of a will. The facts are clear from the verdict.
HJO van Heerden, curatoradlitem for the minor children Gerda and Daniel Johannes: If para. 6 of the will D that the remainder be left 'to my daughter. . . and her children ', without
the addition of the words' who are alive at the date of death' there would have been no doubt that the son Paul should also inherit John. See In re Estate van Velden, 18 SC 31; Lewis'
Estate v Jackson's Estate, 22 SC 73; Hopkins v Estate Smith, 1920 CPD 558; Estate Delponte v de Fillippo and Others, 1910 CPD 334. In such E case would
even future children of the daughter are likely to be considered. See Ex parte van Zyl, 1938 OPD 144; Ex parte Louwrens and Others, 1941 OPD 249. According to the cited
citations, the reason why children born after the death of the testators, regardless of when they were conceived, would be involved in the postulated case, F because it is
suspected that this was the intention of the testator. However, this presumption must give way if the words of the will give evidence of another intention. See Foot, 28.5.12 and 13.
It is true that the common law sources teach that in so far as it is to his advantage, a child is deemed to have been born at the time when he was conceived, but when this
statement is applied to a testamentary provision become, can G it obviously does not have stronger power than a mere suspicion. After all, it is inconceivable that a testator could
not expressly or by implication determine that only children who were actually born before his death should inherit. See Foot 1.5.5; de Groot, 1.3.4. In the present case, the H words
'which at the date of death in life' undoubtedly indicate that children conceived after the death of the testator, can not inherit, and
1962 (3) SA p955
DE VILLIERS R
therefore, the presumption stated in the decisions cited above lapses. And if the said presumption lapses, there can be no reason why the presumption mentioned in the verses
first quoted would remain standing. It is apparently accepted in English law that a testamentary provision A as the present would also apply to a child born to but conceived before
the death of the testator, although it is acknowledged that such a construction is contrary to the normal meaning of the words 'in life'. Apparently it is argued that the testator
intended to benefit such children as well. However, it is difficult to understand why a testator who uses the quoted words would intend to use a B child born after but conceived
before his death, but not conceive a child and born after his death. See Elliot v Joicey, 1935 AC 209; Villas in Gilbey, 1907 AC 139. It is therefore argued that the son Paul Johannes is
not entitled to a portion of the remainder of the estate.
C PE Linde, curatoradlitem for the minor child Paul Johannes de Villiers: A child in ventre matrix, is, for the purposes of an inheritance, presumed to be alive on the ground that
it is to his advantage. See Foot, 1.5.5; Elliot v Joicey, 1935 AER (reprint) on p. 584; Botha and Others v Thompson, NO, 1936 CPD 1. The use of the words' children. . . which at the
date of my death in the D life is. . . ' can make no difference, ie, since a child in ventre matrix considered alive if it is to his advantage, the use of the words 'in life' makes no
difference. See Elliot 's case, ibid. on p. 589. In any case, in the words of this will no
indicia found indicating an intention to have a child in ventre matrix to exclude. What the testator E apparently meant by the words' what. . . in life 'is' what. . .. is still alive ', ie
children who have already been born and who have not yet died. This is in line with the scheme of the rest of its provisions. The emphasis is not on 'life' but actually on 'not yet
dead'. If the emphasis is perceived in this way then the use of the words 'in life' is not an indication of an exclusion of a child a F vetre se mére.
Cur. adv. vult.
Postea ( July 5).
Judgment
G DE VILLIERS, R .: Paul Johannes Steenkamp, hereinafter referred to as the testator, made a will on the 22nd of February 1960 in terms of which he, inter alia, the remainder of
his estate as follows in para. 6 of them bequeathed:
H ' I bequeath the remainder of my estate in equal parts to my daughter Magdalena Susanna de Villiers (born Steenkamp) and her children of the first generation who are alive at the date of death, i.e.
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In the event that my daughter dies before me, the whole of the remainder of my purpose will be given in equal parts to her children of the first generation who were alive at my death. '
Judgment
G DE VILLIERS, R .: Paul Johannes Steenkamp, hereinafter referred to as the testator, made a will on the 22nd of February 1960 in terms of which he, inter alia, the remainder of
his estate as follows in para. 6 of them bequeathed:
H ' I bequeath the remainder of my estate in equal parts to my daughter Magdalena Susanna de Villiers (born Steenkamp) and her children of the first generation who are alive at the date of death, i.e.
my daughter and her children must each have a received an equal share.
In the event that my daughter dies before me, the whole of the remainder of my purpose will be given in equal parts to her children of the first generation who were alive at my death. '
The testator died on the 15th of December 1960. On the latter date, Magdalena Susanna de Villiers (born Steenkamp) had two
1962 (3) SA p956
DE VILLIERS R
had children, namely a son Daniel Johannes and a daughter Gerda, born on 18 February 1960 and 16 March 1958, respectively. On the 15th of December 1960 she was pregnant
and on the 13th of July 1961 she gave birth to a son Paul Johannes.
A Applicant, the executor testator in the estate of the testator, after proper notice to all interested parties, now applies in terms of art. 19 (1) ( c) of Act 59 of 1959 that the Court
must determine whether Daniel Johannes and Gerda, the grandchildren already B
was born with the death of the testator, inherits only the remainder of the estate and or Paul Johannes who was born after the testator's death but who in ventre matrix was also
part of the inheritance before his death.
It is common for a child to in ventre matrix for the purposes of inheritance is presumed to be alive provided that it is born later and provided that it is to the advantage of such
child. Foot, 1.5.5, is as follows by Gane translate:
C ' Still by a fiction of law they (children in ventre matrix) are regarded as already born whenever it is a question of their advantage. '
See also South African Law Journal, full. 69, p. 77, for further Roman-Dutch authorities and In re Estate van Velden, 18 SC 31; Estate Lewis v Estate Jackson, 22 SC 73; Hopkins v
Estate Smith and D Others, 1920 CPD 558; Estate Delponte v de Fillippo and Others, 1910 CPD
334, en Botha and Others v Thompson, NO, 1936 CPD 1.
If in the present case the testator has therefore determined that the remainder of his estate bequeathed to his said daughter and her children E
be, there would have been no doubt that Paul John must also share in the inheritance because it is clear in his favor that he should be regarded as already born on the date of
death of the testator. In fact, based on Foot, 5/28/12 and 13, and Ex parte van Zyl, NO, 1938 OPD
144, en Ex parte Lourens and Others, 1941 OPD 249 (but look Botha and Others v Thompson, NO, supra), he would probably have inherited even if F he does not in ventre matrix with
the death of the testator because, as VAN DEN HEEVER, R., puts it Ex parte van Zyl, supra, and indeed on p. 152:
'but in the absence of indices of another intention on the part of the testator, it can safely be said that there is a general acceptance of the presumption that a testator who left a bequest to a class
of descendants did not intend to confine the succession to descendants born before his death '.
G However, it is clear from all the evidence that the suspicions created in Foot, 1.5.5 and 28.5.12 and 13, must depart if it appears from the will as a whole that the testator has a
different intention.
Mr. van Heerden, who acted as curatoradlitem on behalf of Gerda and Daniel Johannes, argued that the words used by the H
testature, namely 'what is at the date of death in life' the suspicion created in Foot, 1.5.5, refutes and indicates that the testator only wanted to benefit the children of his
daughter who were already born and alive at the time of his death. Mr. Linde what if curatoradlitem acted for Paul Johannes, argued on the other hand that the quoted words are
not sufficient in the light of the provisions of the will as a whole, to create the presumption in Foot, 1.5.5, to refute.
In my opinion, Mr. Linde given equally. Even if it
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accept that Mr. van Heerden should be given equal that the testator by the use of the words 'who is alive at the date of death' means that grandchildren born after his death do
not share in the inheritance, it does not mean that he also by it mean that A
grandchildren who were conceived before his death but were born after his death will not inherit.
Similar problems have arisen several times in the English and Scottish Courts and the question has recently been reconsidered by the House of Lords in the case of Elliot v Lord
Joicey and Others, 1935 B AC 209. Both legal systems, as far as this question is concerned, also maintain a presumption equivalent to that mentioned in Foot, 1.5.5, and derived
from Roman law (see p. 238 9 of the judgment of LORD MACMILLAN). In fact Foot, 1.5.5, is based on Digesta, 1.5.7 and 26. In the said case English and Scottish law is summarized
as follows by LORD RUSSELL on p. 233:
'First, words referring to children or issue' born 'before, or' living ' C at, or (as I think we must add) 'surviving', a particular point of time or event, will not in their ordinary or natural meaning include a
child in front of his mother at the relevant date. Secondly, the ordinary or natural meaning of the words may be departed from, and a fictional construction applied to them so as to include therein a
child in front of his mother at the relevant date and subsequently born alive if, but only if, that fictional construction will secure to the child a benefit to which it would have been entitled if it had been
actually born at the relevant date. Thirdly, the only reason and the only justification for D applying such a fictional construction is that where a person makes a gift to a class of children or issue described
as 'born' before or 'living' at or 'surviving' a particular point of time or event, a child in front of his mother must necessarily be within the reason and motive of the gift. '
It is also appropriate to use the words of LORD MACMILLAN on p. 239 of the said case:
'Your Lordships were indeed referred to one recent Scottish decision E where the Second Division of the Court of Session declined to apply the fiction, even though it was to the interest of the
posthumous child to do so, because in the will there under consideration the testator had indicated with reiterated emphasis that only those children of his son who were born prior to the date of the
testator's death were to participate in his bequest: Burns's Trustees v Burns, 1917 SC
117. I confess that for myself I should not be disposed to approve this decision were it before your Lordships for review; I can not see why the F operation of the fiction should be excluded to the
detriment of the posthumous child by the fact that the testator has several times and emphatically used the very language which brings the fiction into operation. '
See also Jarman on Wills, 8th edition, vol. 3, p. 1698, and cases cited there; Villas in Gilbey, 1907 AC 139 en Re Stern's Will Trusts, 1961 (3) AER 1129.
G It would seem to me, if I understand correctly, that the decision ratio of the above authorities is that, even if it is remembered that a reference to children 'alive' or 'born' at a
particular time in normal language use a child in ventre matrix exclude, the use of such words in the present circumstances and in the absence H of any other indication that
makes the testator's intention completely clear is not sufficient to refute the very strong natural presumption that the testator intended a child in ventre matrix if already born or
to be considered alive.
I am willing to decision ratio of the English and Scottish wise men because on the face of it, it is in line with the rules of interpretation applied in our law. It has been said many
times
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DE VILLIERS R
that all rules of interpretation are only aids to get behind the true intention of the testator from the words used by him in the will as a whole (see Cuming v Cuming and Others, 1945
AD 201).
A In the present case, in view of the very strong presumption contained in Foot, 1.5.5 (and what is described by him as a fiction) it is assumed that the testator would have had
the natural urge to have a grandchild in ventre matrix to benefit just like grandchildren who were already born at his death. The use of the words 'in life' must B is not taken too
literally and is regarded as a necessary indication that the testator thereby intends to refute the presumption, but rather, as it is to the advantage of Paul John, that he
emphasizes the presumption. Take, for example, the case of Ex parte Odendaal, 1957 (2) SA 15 (O), where the Court does not have the words' at the
C death 'literally and also to the case of In re Estate van Velden, supra, where a testator inherited the value of two-thirds of his estate to the 'children born of our marriage'. In the
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latter case, the Court ruled that a child of the testator's marriage in ventre matrix at his death was entitled to inherit with the children already born at his death. The word 'born'
did not prevent D the court
the natural urge to have a grandchild in ventre matrix to benefit just like grandchildren who were already born at his death. The use of the words 'in life' must B is not taken too
literally and is regarded as a necessary indication that the testator thereby intends to refute the presumption, but rather, as it is to the advantage of Paul John, that he
emphasizes the presumption. Take, for example, the case of Ex parte Odendaal, 1957 (2) SA 15 (O), where the Court does not have the words' at the
'literally and also to the case of In re Estate van Velden, supra, where a testator inherited the value of two-thirds of his estate to the 'children born of our marriage'. In the
latter case, the Court ruled that a child of the testator's marriage in ventre matrix at his death was entitled to inherit with the children already born at his death. The word 'born'
did not prevent D the court
give effect to the suspicion of Foot, 1.5.5, no.
C death
It is ordered that as far as the remainder of the testator's estate is concerned, Paul Johannes should be considered alive at the death of the testator and entitled to inherit equally
with his mother Magdalena Susanna de E Villiers, born Steenkamp, and with his sister and brother Gerda and Daniel Johannes.
It is further recommended that the cost of this application including the cost of the curatoresadlitem on the scale of attorney and client is paid from the estate of the testator.
Applicant's Attorneys: McIntyre & van der Post.
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