Public Trustee of Fiji v Sanday [1921] FijiLawRp 2; [1908-1925] 2 FLR 83 (6 June 1921)

[1921] 2 FLR 83

SUPREME COURT OF FIJI

Civil Jurisdiction

Action No. 53, 1920

THIS PUBLIC TRUSTEE OF FIJI

v

EDWARD SANDAY, CHARLES HENRY SANDAY, LILY ALAMEDA PEARSON, JONATHAN BYRNES AND STEPHEN SANDAY.

1921, June 6.

Will construction of - person intended - error of demonstration.

Sir CHARLES DAVSON, C.J. Testator named, as a beneficiary under his will, "my son Charles Henry Sanday of Ebenezar, Hawkesbury, New South Wales," and the question is whether the person intended was his son Stephen Sanday of Hornsby, New South Wales or his brother Charles Henry Sanday of Ebenezar, Hawkesbury.

We have here a demonstration, a name and an address. The demonstration points to the son and not to the brother, the name and the address both point to the brother and not to the son.

The maxim that a name shall prevail against an error of demonstration (veritas nominis tollit errorem demonstrationis) will apply, but I can only give effect to it if I find that there has been an error of demonstration. (Drake v. Drake, S H.T.C. 172, 11 Eng. Rep. 392).

The evidence contained in the affidavits and the diary leads me, after some hesitation, to the conclusion that there has been an error of demonstration, and I order the share of the estate in question to be paid to testator's brother Charles Henry Sanday.