Emily Maria Edwards v Alice Maud Edwards [1918] HCA 2; (1918) 24 CLR 312 (19 February 1918)

HIGH COURT OF AUSTRALIA

Emily Maria Edwards Defendant, Appellant; and Alice Maud Edwards Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Tasmania.

19 February 1918

Griffith C.J., Barton, Gavan Duffy and Rich JJ.

P. L. Griffiths, for the appellant.

Tasman Shields, for the respondent.

Griffiths, in reply.

Feb. 19

Griffith C.J.

The deed upon which the question for decision arises is a common law conveyance dated 4th October 1886 which was made between Maria Edwards of Circular Head, of the one part, and a party described as "John Edwards of the same place gentleman," of the other part. The operative words purport to convey the land in question, which is one rood of land at Stanley, to "the said John Edwards" for life with remainder for the benefit of his widow and children, if any. The deed is expressed to have been executed by "the parties to these presents," and to have been "signed sealed and delivered" by "the said Maria Edwards" and "the said John Edwards," who signed his name as "John Edwards Jnr.," in the presence of a witness who in an affidavit spoke of them in language indicating that they were both present. The person who signed his name as "John Edwards Jnr." was the brother of the settlor, and the appellant is his widow. His father, who was living, was also named John Edwards, which accounts for the use of the "Jnr." in the signature "John Edwards Jnr."

So far there appears to be no difficulty. But in the recital of the consideration for the deed it is described as "the natural love and affection which the said Maria Edwards hath and beareth to and for her nephew the said John Edwards" and of five shillings paid to her by "the said John Edwards." John Edwards who signed the deed as "John Edwards Jnr." had an infant son, then eight years of age, named John Ernest Edwards. The respondent is the widow of John Ernest Edwards. The question which we have to determine is to whom did the estate pass, which depends upon the intention of the settlor as expressed by the deed. Did she mean her brother, or her nephew? The appellant desires to call in aid extrinsic evidence. Whether such evidence is admissible or not depends upon whether an ambiguity appears upon the face of the deed interpreted by applying the evidence to identify the persons named in it. In my opinion the statement in the attestation clause that the deed was executed by "the said John Edwards" would, standing alone, be a sufficient designation of the person who actually executed the deed as the purchaser. Is, then, this result excluded by the circumstance that the purchaser is also described as "her nephew," which words also, if standing alone, would be a clear and sufficient description of a different person? In my opinion the conflict raised a case of ambiguity which permits of the admission of extrinsic evidence. I should say at this point that I regard the evidence of the identity of the person who signed the deed not as extrinsic but as ordinary evidence applicable to the interpretation of deeds. I turn then to this evidence as to the use of the word "nephew." It appears on inspection to have been written both in the deed and in the sworn copy for registration (under the then existing law) on a very careful and complete erasure, and in the same handwriting as the rest of those documents. The registered copy was also signed by the same two persons. I think that the proper inference is that the alteration was made in the solicitor's office in Hobart before the deed was sent to the country for execution. The alteration was not initialled by the parties or the witness, and I think it may fairly be inferred that it passed unnoticed by them. It may, perhaps, be accounted for as an intended but unauthorized emendation made by the solicitor or his clerk owing to some mistake as to the true relationship of the parties. On the execution of the deed it was delivered into the custody of the appellant's husband, who built a house upon the land in which he resided till his death in 1907. The fact that the word "nephew" was in the deed was not discovered until after the nephew's death in 1915. The result is that the description of the purchaser is applicable in part to two different persons but is not a complete and accurate description of either of them. With the aid of the extrinsic evidence I come to the conclusion that the use of the word "nephew" was inadvertent on the part of the settlor, and must be treated as falsa demonstratio. I think therefore that the appeal must be allowed, and that the judgment must be varied by substituting a declaration that upon the true interpretation of the deed by the words "the said John Edwards" in the gift the settlor meant her brother of that name.

As there is no question of credibility of witnesses or of conflict of evidence, I think that the question may properly be determined on originating summons.

Barton J.

I agree.

Gavan Duffy J.

I agree to the order proposed by the Chief Justice.

Rich J.

I agree with the conclusion arrived at.

Appeal allowed. Order appealed from varied by substituting a declaration that by the words "her nephew the said John Edwards" in the deed the settlor meant her brother John Edwards. Costs of appeal of both parties out of estate.

Solicitor for the appellant, K. Laughton, Stanley, by Griffiths & Crisp.

Solicitors for the respondent, Shields & Heritage, Launceston, by Page, Hodgman & Seager.