Smith and Others v Executors Testamentary of Sayers [1880] ZASCCGH 17 (12 March 1880)

Community of property.-Mutual will of hiisband and wife.Subseqiient will by surviving spouse, how far valid.-Oril. 104, §§ 14 and 15.

In 1851 one S. and his wife, married in community of property,
by a joint notarial will appointed as their heirs the survivor of them jointly with the child of the testatrix by a former marriage and with the children of their existing marriage. The survivor was to keep the whole of the ioint estate under his or her sole direction and administration and to remain in the enfoyment of the usufruct of the foint estate during his or her natural life, and was nominated executor of the will and guardian of the minor heirs. The executor and guardian was not to be required to lodge an inventory of the estate with the Mastm of the Supreme Oourt. S. survived his wife, accepted the benefits conferred mi him by the will, and remained in possession of the estate, but did not marry again In 1877 S. ewecuted another will revoking the joint will and making a fresh disposition of the property, and in 1879 he died. There was no inventory of the joint estate as it stood at the time of the 'wife's death, nor was there any evidence as to the exact value of the property comprised in that estate. Held, that the second will was valid so far as it disposed of the testator's half of the joint estate and a child's portion of the wije' s half; that independently of Ord. 104, §§ 14 and 15, the testator's
comission to make an inventory threw upon his executors the burden of proving that any portion of his estate was acquired after his wife's death, and that, therefore, as there was no such proof the whole estate under there administration must be presumed to have formed part of the joint estate.