Horowitz v Brock (168/85) [1987] ZASCA 126; [1988] 2 All SA 15 (A) (5 November 1987)

Horowitz v Brock (168/85) [1987] ZASCA 126; [1988] 2 All SA 15 (A) (5 November 1987)

The Supreme Court of Appeal held that the previous ruling of the Transvaal Provincial Division did not constitute res judicata or issue estoppel, as the issue of the proportions to which the beneficiaries were entitled was not made part of the order and was not fully canvassed as an issue between the parties. The court found sufficient indicia in the will to rebut the presumption that 'children' refers only to descendants of the first degree. The testators intended that Annie Brock's share in the trust corpus should devolve equally upon her surviving children and, by representation, upon the children of any predeceased child. Accordingly, Richard Brock and Elizabeth Horowitz, in place of...

Citation
[1987] ZASCA 126
Parties
Appellant: Elizabeth Rachel Horowitz; Respondent: Richard Brock; Respondent: Julian Brock; Respondent: Alexander Brock; Respondent: The Administrators
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
5 November 1987
Case Number
168/85
Procedural Posture
Civil Appeal / Appeal From a Dismissal of an Application for Declaratory Relief Regarding the Interpretation of a Testamentary Trust.
Outcome
Appeal allowed. The order of the court a quo is set aside and replaced with a declaration that the share of Annie Brock in the trust corpus devolves equally upon Richard Brock and Elizabeth Rachel Horowitz, provided Elizabeth survives to the age of twenty-five. Costs of all parties, including curator-ad-litem and...
Judges
Smalberger, Joubert, Grosskopf, Nicholas, Steyn
Legal Topics
Testamentary Trusts, Will Interpretation, Res Judicata, Issue Estoppel, Representation in Succession
Land and Property Civil Procedure Testamentary Trusts Will Interpretation Res Judicata Issue Estoppel Representation in Succession

Case Brief

Summary, issues, holding and outcome

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Parties

Elizabeth Rachel Horowitz

Appellant

Richard Brock

Respondent

Julian Brock

Respondent

Alexander Brock

Respondent

The Administrators

Respondent

Procedural Posture

Civil Appeal / Appeal From a Dismissal of an Application for Declaratory Relief Regarding the Interpretation of a Testamentary Trust.

Legal Issues

  1. 1 Whether the previous ruling of the Transvaal Provincial Division constituted res judicata or issue estoppel, precluding the relief sought.
  2. 2 Whether the interpretation of the will should allow Elizabeth Horowitz to inherit by representation in place of her predeceased mother.
  3. 3 Whether the term 'lawful children' in the will includes grandchildren by representation.

Ratio Decidendi

The Supreme Court of Appeal held that the previous ruling of the Transvaal Provincial Division did not constitute res judicata or issue estoppel, as the issue of the proportions to which the beneficiaries were entitled was not made part of the order and was not fully canvassed as an issue between the parties. The court found sufficient indicia in the will to rebut the presumption that 'children' refers only to descendants of the first degree. The testators intended that Annie Brock's share in the trust corpus should devolve equally upon her surviving children and, by representation, upon the children of any predeceased child. Accordingly, Richard Brock and Elizabeth Horowitz, in place of...

Court Disposition

Appeal allowed. The order of the court a quo is set aside and replaced with a declaration that the share of Annie Brock in the trust corpus devolves equally upon Richard Brock and Elizabeth Rachel Horowitz, provided Elizabeth survives to the age of twenty-five. Costs of all parties, including curator-ad-litem and...

Orders

  • The appeal is allowed.
  • The order of the court a quo dismissing the appellant's application, including its order as to costs, is set aside.