Ex parte Geldenhuys 1926 OPD 155

Ex parte Geldenhuys 1926 OPD 155

Facts

Geldenhuys, the executor of the estate of his deceased brother, applied to the Orange Free State Provincial Division of the Supreme Court for an order authorizing him to transfer two undivided shares in a farm to his brother's two minor children. The will of the deceased brother had stipulated that the farm was to be divided into three equal shares, with one share going to each of his three children.

The Master of the Supreme Court opposed the application, arguing that the transfer of undivided shares to minors was not permissible. The Master argued that such a transfer would create a pro indiviso, which is a joint ownership of property by two or more persons without the right of survivorship. The Master argued that pro indivisos were undesirable because they could lead to disputes between the joint owners.

Issue

The main issue in the case was whether the transfer of undivided shares to minors was permissible.

Reasons

The Orange Free State Provincial Division of the Supreme Court held that the transfer of undivided shares to minors was permissible. The court found that there was no law prohibiting the transfer of undivided shares to minors. The court also found that there was no reason why pro indivisos should be considered to be undesirable in all cases.

The court held that the Master's discretion to refuse to approve the transfer of undivided shares to minors should be exercised sparingly. The court also held that the Master should consider the specific circumstances of each case before making a decision.

Conclusion

The court granted Geldenhuys' application and authorized him to transfer two undivided shares in the farm to his brother's two minor children.

Summary

The case of Ex parte Geldenhuys 1926 OPD 155 is a landmark case in South African property law. The case is particularly important for its analysis of the following issues:

• The transfer of undivided shares;
• The concept of pro indiviso; and
• The Master's discretion to refuse to approve the transfer of undivided shares to minors.

Transfer of undivided shares

The transfer of undivided shares is the transfer of ownership of a portion of a property to two or more persons. Undivided shares can be transferred by way of donation, sale, or inheritance.

Concept of pro indiviso

A pro indiviso is a joint ownership of property by two or more persons without the right of survivorship. This means that when one of the joint owners dies, their share in the property passes to their heirs, rather than to the surviving joint owners.

Master's discretion to refuse to approve the transfer of undivided shares to minors

The Master of the Supreme Court has the discretion to refuse to approve the transfer of undivided shares to minors. This discretion is exercised to protect the interests of minors. The Master will consider the specific circumstances of each case before making a decision.

Impact of the Case

The case of Ex parte Geldenhuys 1926 OPD 155 has had a significant impact on the law of property in South Africa. The case has clarified the law on the transfer of undivided shares to minors. The case has also established that the Master's discretion to refuse to approve the transfer of undivided shares to minors should be exercised sparingly.