Emily Maria Edwards v Alice Maud Edwards [1918] HCA 2

name was the brother of the grantor, and he had a son named John E Edwards, who was then eight years of age. The word " nephew " was over a careful erasure, but the alteration was not initialed by the pa the witness. The presence of the word " nephew" in the deed was not covered until the death of John Ernest Edwards in 1915.

Held, that there was an ambiguity on the face of the deed as to the to whom the life estate was given, that extrinsic evidence was admissible explain the ambiguity, and that on the evidence that person was the brot of the grantor.

Decision of the Supreme Court of Tasmania reversed,

s taken out by Charles Edwards, the trustee of an indenture of weyance and declaration of trust dated 4th October 1886, regis- in the Registry of Deeds at Hobart on 29th October 1886, the determination of the question: Who is presently entitled o the benefit of the trusts by the said deed declared of and con- the lands and hereditaments thereby assured ?

e indenture, so far as is material, was as follows : - '' This denture made 4th October 1886 between Maria Edwards of Head in Tasmania spinster of the one part and John rds of the same place gentleman of the other part witnesseth in consideration of the natural love and affection which the said Edwards hath and beareth to and for her nephew the said John Edwards and for other good causes and considerations her eunto moving and in consideration of the sum of five shillings

he the said Maria Edwards doth grant bargain sell release and nfirm unto the said John Edwards and his heirs all that allotment piece of land" (the land was then described) "to have and o hold the said land hereditaments and premises hereby granted d released or intended so to be unto the said John Edwards and eirs to the use of the said John Edwards and his assigns for the of the natural life of the said John Edwards without impeach- of waste And subject thereto to the use of Charles Edwards ar Head in Tasmania storeman his heirs executors adminis-

s and assigns upon trust for the widow (if any) of the said 1 Edwards during widowhood and subject thereto and upon the e or marriage of such widow (if any) which shall first happen upon trust for all the children if more than one equally or only ild if only one of the said John Edwards who shall live to attain he age of twenty-one years and the heirs executors administrators nd assigns of each of such children or only child (as the case may ) . In witness whereof the said parties to these presents hereunto set their hands and seals the day and year first efore written. Maria Edwards. - Signed sealed and delivered

by the said Maria Edwards in the presence of Chs. Tho. Smith J.P. Circular Head. John Edwards Jnr. - Signed sealed and delivered by the said John Edwards in the presence of Chs. Tho. Smith J.P. Circular Head."

At the date of the execution of the indenture there were living the father of Maria Edwards, who was named John Edwards, his son, who was also named John Edwards, and a son of the latter who was named John Ernest Edwards and who was then about eight years of age. John Edwards, senior, died on 24th July 1891. Maria Edwards died on 17th February 1900. John Edwards, junior, died on 7th March 1907, leaving him surviving his widow, Emily Maria Edwards, and their son, John Ernest Edwards. John Ernest Edwards died on 3rd June 1915, leaving him surviving his widow, Alice Maud Edwards.

The defendants to the summons were Emily Maria Edwards and Alice Maud Edwards.

The other material facts are stated in the judgment hereunder.

The summons came on for hearing before Crisp J., who referred it to the Full Court, which made an order declaring that upon the true construction of the indenture by the words "her nephew the said John Edwards" the settlor meant to describe her nephew John Ernest Edwards.

From that decision Emily Maria Edwards now appealed to the High Court.

P. L. Griffiths, for the appellant. On the evidence the person to whom the life estate was intended to be given was John Edwards, the brother of the grantor, and not his son John Ernest Edwards. The fact that the alteration of the deed by the insertion of the word "nephew" is not authenticated indicates that it escaped the attention of the grantor and the witness. The execution of the deed by John Edwards, in the absence of any other evidence, must be taken to have been a solemn act in law, and by signing it he delivered it and must be taken to have been the party described as the party of the other part. The persons mentioned in the deed and concerned in its execution having been identified, an ambiguity at once appears on the face of the deed, and extrinsic evidence is admissible for the

vy. Henderson (1)). Under sec. 45 of the Trustee Act 1898

2 Vict. No. 34) this question may properly be determined on inating summons.

Tasman Shields, for the respondent. The question raised here not one for originating summons but the appellant's proper medy is to ask for rectification (Miller v. Travers (2)). There is ambiguity on the face of the deed. The description of the rson to whom the life estate is given sufficiently describes the ntor's nephew, and extrinsic evidence is not admissible to show he was not intended to be the beneficiary (In the Goods of ke (3) ). When there is a disputed question of fact the matter cannot properly be determined on originating summons (In re Johnson; Reed v. Reed (4); In re Brewster; Munro v. Brewster 6) 3 In re Bridge; Franks v. Worth (6); In re Davies: Davies v. I (7); Re Ellis; Kelson v. Ellis (8) ).

(Ricx J. The respondent did not object or demur ore tenus at

made between Maria Edwards of Circular Head, of the one part, id a party described as " John Edwards of the same place gentle- man," of the other part. The operative words purport to convey

e land in question, which is one rood of land at Stanley, to " the

se of solving the ambiguity and interpreting the deed (Hender- H.C. or A.

HIGH COURT (191 " the said John Edwards," who signed his name as " John Edwards 3 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

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

the proper inference is that the alteration was made in the

ticed by them. It may, perhaps, be accounted for as an ended but unauthorized emendation made by the solicitor or clerk owing to some mistake as to the true relationship of the On the execution of the deed it was delivered into the ody of the appellant's husband, who built a house upon the land lich he resided till his death in 1907. The fact that the word phew" was in the deed was not discovered until after the y's death in 1915. The result is that the description of the ser is applicable in part to two different persons but is not mmplete and accurate description of either of them. With the of the extrinsic evidence I come to the conclusion that the use of word "nephew" was inadvertent on the part of the settlor, id must be treated as falsa demonstratio. 1 think therefore that he appeal must be allowed, and that the judgment must be varied by 'substituting a declaration that upon the true interpretation the deed by the words "the said John Edwards" in the gift ihe settlor meant her brother of that name.

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

Appeal allowed. Order appealed from varied . by substituting a declaration that by the 3 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.

ed copy was also signed by the same two persons. I think H- ©. or A.

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

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

THE LICENSING COURT (SOUTH AUSTRALIA) - AppELtant;

ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.

Licensing - Local option - Adoption of resolution that number of licences be not

increased or reduced - Bffect of resolution - Jurisdiction of Licensing Bench - Objection to renewal of licence on ground that premises not required for accom- modation of publie - Licensing Act 1908 (S.A.) (8 Bdw. VIL. No. 970), secs. 44, 47, 59, 183, 199, 200, 203 - Licensing Acts Further Amendment Act (No. 2) 1915 (6 Geo. V. No. 1236).

Sec. 44 of the Licensing Act 1908 (S.A.) provides that a Licensing Bench "shall hear, inquire into, and determine" all applications for licences and for renewal of licences and also all objections which are made to any such applica- tions. Sec. 47 provides that one of the objections that may be taken to an appli- cation for a grant or a renewal of a publican's licence is " that the licensing of the premises is not required for the accommodation of the public." Sec. 59 provides that "(1) No licence shall be renewed nor shall any application be granted as a matter of course; and upon the hearing of any application for the grant, renewal, transfer, or removal of a licence, whether notice of objection has been delivered or not, and whether objection is taken at the hearing or not, the Bench shall hear, inquire into, and determine the application and all such objections (if any) on the merits, and shall grant or refuse the application