Helena Susanna Elizabeth Haupt

Helena Susanna Elizabeth Haupt (de Villiers)daughter of Abraham de Villiers Birth: May 26, 1845 Groot Drakenstein, South Africa Death: February 1, 1887 (41) of Typhoid Rhone Estate, Groot Drakenstein, Cape, South Africa Mother of Carel Albrecht Haupt; Helena Haupt; Maria Johanna Haupt; Johannes Jacobus Haupt; Susanna Maria Haupt; Anna Carolina Haupt and Johanna Cornelia Van der Byl (Haupt ) She Remarried to Willem Adolph Scholtz 8 Feb 1886 the year after she was widowed. JM Hoffman spoke to attending the late Mrs. Scholtz towards the end of the year 1886 She died of typhoid on February 1, 1887.

At the time of hIs wife'a death there was a bond on the estate for 4,000 pounds , and that he had cleared of    He had kept the interest belonging to two of the children. In the will,  His wife gave him every thing, and did not  give a legacy to the children.  Scholtz married again four years after his flrst wife's death.   Witness at the court was the aunt of the present Mrs. Scholts.•	The fact that the will was not properly executed was only discovered by Attorney Van E)k on the 14th or 15lh April 1897, and it was found out by mere chance. Plaintiffs did not know that the law required two witnesses to a will, nor did they know the manner of due execution of the same. No legal adviser was consulted before Mr. Van Eyk was seen by Mrs Van der Byl on the question whether a parent could disinherit children, when Mr. Van Evk dis covered that the will was not properly executed.

• The Court found that the Will had not been properly executed in accordance with Ordinance 15 of 1845.

• Searl Q.C. (vt plaintiffs, was not called upon. Schreiner Q.C. (with him McGregor), for defendant.

Ten years later the will came before the  the supreme court.   483 Van der Byl and Haupt vs. Scholtz. APA:   Hope, Cape Of Good. (2013). pp. 486-7. Supreme Court Reports, 1899: Decisions of the Supreme Court of the Cape of Good (Vol. 14). London: Forgotten Books. (Original work published 1899) MLA:   Hope, Cape Of Good. Supreme Court Reports, 1899: Decisions of the Supreme Court of the Cape of Good. Vol. 14. 1899. Reprint. London: Forgotten Books, 2013. 486-7. Print DECIDED  IN THE SUPREME COURT OF THE CAPE OF GOO D HOPE,    DURING THE YEAR 1897 Plaintiffs' declaration was as follows: "  1.	The plaintiffs are Johanna Cornelia Haupt (married without community of property to Andries Christoffel van der Byl, and assisted by him in so far as need be) and Johnnnes Jacobus Haupt. The plaintiffs reside at the Paarl.  The plaintifis are children of the said late Helena Susanna Elizabeth Haupt (bom De Villiers), widow of the late Carl Albrecht Haupt, and subsequently married to the defendant, and hereinafter called the testatrix; there are five other children of the testatrix, four of whom are minors.

2. The defendant is Willem Adolf Scholtz, J. son, residing at the Paarl, and he is sued both personally and in his capacity as executor under the will of his late wife, Helena Susauna Elizabeth Scholtz, formerly Haupt (bom De Villiers). The Court will exercise great caution in declaring null and void, by reason of undue execution a Will which has been duly registered and acted upon, but will not refuse relief to the heirs of the deceased if there has been no acquescence on their part.The fact that they have not instituted their action until ten years after the registration of the will, is not sufficient proof of such acquiescence if they were minors at the time of such registration, and instituted proceedings within a reasonable time after they became of age. Action brought by plaintiffs against defendant for an order declaring the will of plaintiffs' mother to be null and void on the ground that it was not executed in accordance with law, and making the defendant account for the value of the testatrix's estate, and ordering him to pay over the portion to which plaintiffs were entitled as heirs ab intestate to their mother's estate. Plaintiffs' declaration was as follows: " 1. The plaintiffs are Johanna Cornelia Haupt (married without community of property to Andries Christoffel van der Byl, and assisted by him in so far as need be) and Johnnnes Jacobus Haupt. The plaintiffs reside at the Paarl. The defendant is Willem Adolf Scholtz, J. son, residing at the Paarl, and he is sued both personally and in his capacity as executor under the will of his late wife, Helena Susauna Elizabeth Scholtz, formerly Haupt (bom De Villiers). 2. The plaintifis are children of the said late Helena Susanna Elizabeth Haupt (bom De Villiers), widow of the late Carl Albrecht Haupt, and subsequently married to the defendant, and hereinafter called the testatrix; there are five other children of the testatrix, four of whom are minors. 3. On the 1st February, 1887, the testatrix died at her farm called Rhone, situated at 6 root Drakenstem, in the district of the Paarl 4. On tbe 28th January, 1887, a mutual will, purporting van der Byl, executed by the testatrix and defendant, was signed at Rhone, and the witnesses purport to be one scho Charles Hanpt and one H. D. Schwartz. A translation of the said will is hereunto annexe , marked " A," from which it appears that the said will purports to have been signed on the 7th January, 1887. 5. The defendant has taken out letters of administration as executor under the said will . The said H. D. Schwartz, who purports to be a witness to the testatrix's signature to the said will, and whose full name is Hendrik Daniel Schwartz, did not see her sign the said document, nor was he present at the execution of the said will, and the said will is therefore null and void, as not having been executed in conformity with the provisions of Ordinance 15 of 1845. 6. Under the said will the survivor was appointed sole heir of all the estate of the first dying. The said estate of the testatrix was at the date of her death of considerable value, and the chief assets therein have recently been sold for about "8000 or "9000. 7. The defendant has realised the said estate, and had in his possession the whole of the funds thereof. Wherefore the plaintiffs claim: (a) That the said will of their late mother (the testatrix) may be declared null and void, as not having been executed in accordance with law, and that their late mother has died intestate ; (b) that the defendant be ordered to account to such person as may be appointed executor dative in the testatrix's estate for the value of the estate, (c) and to pay over to him the portion to which the plaintiffs are entitled as heirs ab intestaio; (d) costs of suit. (e) alternative relief;• De Villiers, C.J.: I quite agree with Mr. Schreiner as to the extreme caution which the Court should exercise when asked to set aside a will which has been duly registered with and accepted by the Master of the Supreme Court, and has been acted upon by those concerned in its provisions. The necessity for such caution becomes still more obvious when, as in the present case, a period of ten years has elapsed since the death of the testator. On the other hand it is impossible to lay down any rule as to what lapse of time should foreclose the heirs from objecting to the validity of a will. The lapse of ten years could afford strong proof of acquiescence on their part, but it is not conclusive where a reasonable and satisfiictory explanation of their silence is forthcoming. The explanation given by the plaintiff in the present case is that they were minors at the time of the death of their mother, that after their mother's death they continued to live with their stepfather, the present defendant, that they were wholly ignorant of the law as to the proper execution of wills, and that within a reasonable time after they became of age and were informed of their rights they instituted the present action The explanation is satisfactory so far as it goes, but it should not, under the circumstance, dispense with Van der Byl’s clearest proof as to the undue execution of the will. If for instance, the witnesses to the will were now dead, it would be difficult to induce the Court to accept the statement of other persons who were present at the signing of the document, that a will which had been acted upon for so many years had been unduly executed. In fact both the witnesses to the will in question are still alive and gave their evidence. One of them swears positively that the signature of the testatrix was neither made nor acknowledged in his presence, and that he did not attest the will in the presence of the testatrix On the whole I have come to the conclusion that the will was not duly executed, and judgment must be given accordingly, with costs out of the estate.

, and making the defendant account for the value of the testatrix's estate, and ordering him to pay over the portion to which plaintiffs were entitled as heirs ab intestato Mr. Justice Maasdorp and Mr. Justlcs Buchanan concurred. Plaintiff’s Attorneys, Messrs. Van 2yl k Defendant's Attorneys, Messrs. Walker k Jacobsohn. |