Gray v Gray [1932] WSLawRp 2; [1930-1949] WSLR 45 (30 May 1932)

[1930-1949] WSLR 45

HIGH COURT OF SAMOA

GRAY

v

GRAY

High Court, Apia
30 May 1932
Luxford CJ

WILLS (Interpretation) - Misdescription of land - Resulting conveyance to devisee of wrong parcel - Falsa demonstratio non nocet - Leading or dominant words of description prevail over erroneous inconsistent references.

EVIDENCE (Admissibility) - Letter from testator to his solicitor enclosing draft of proposed will admitted to show testator's mode of describing his real property.

ACTION

This was an action by the Executor of a Will for reconveyance by the devisee of certain land alleged to have been conveyed to him in error.

Andrews for plaintiff.
Klinkmueller for defendant.

Cur adv vult

LUXFORD CJ. The plaintiff and the defendant are the sons of the late George Gray who died on the 16th day of November, 1931 at Satupa'itea, in the Island of Savai'i, where for many years he had carried on the business of a trader. The last Will and Testament of the deceased was duly proved before this Court and on the 11th day of December, 1931 probate thereof was granted to the plaintiff. The deceased by his said Will gave devised and bequeathed to the defendant, "my two freehold properties situated at Foa in Savai'i (being Crown Grants Numbers 195 and 196) together with the sum of £5 in money". On the 7th day of January, 1932 the plaintiff executed to and in favour of the defendant a conveyance of two pieces of land in purported pursuance of this devise. The conveyance was duly registered. The two pieces of land are described in the Schedule to the conveyance thus:

All that piece or parcel of land situate in the village of Foaluga in Savai'i and called "Ofu" being all the land mentioned and described in Court Grant No. 195 and being all the land now registered in the Land Register of Western Samoa in Volume 3 Folio 25 together with all buildings thereon erected, and all rights, ways, easements, and appurtenances thereunto belonging.

All that piece or parcel of land situate in Faletoi in Savai'i and known as "Pugapuga" being all the land mentioned and described in Court Grant No. 196 and being all the land now registered in the Land Register of Western Samoa in Volume 3 Folio 26 together with all buildings thereon erected and all rights, ways, easements, and appurtenances thereunto belonging.

The description of the first piece of land refers to the village of "Foaluga", and the description of the two pieces refer to Court Grants, but the Will refers to the village of "Foa" and "Crown Grants". The variations are immaterial as both parties agree that the village of Foaluga is popularly spoken of as Foa, and that the titles to the lands which form the subject-matter of this action are founded on Court and not Crown Grants.

Shortly after the execution and registration of the conveyance the plaintiff discovered that the land secondly described in the conveyance is situated in Satupa'itea about 25 miles away from Foa. The Satupa'itea land apparently is a valuable asset in the Estate for on it is erected the buildings wherein the deceased carried on his trading business.

The plaintiff alleges that the Satupa'itea land was conveyed to the defendant erroneously, that he requested the defendant to reconvey the property to him and to accept a conveyance of another piece of land in Foa. The defendant refused to comply with this request, and now contends that the land conveyed to him on the 7^th day of January, 1932 is the land devised to him by and under his father's last Will and Testament.

The present difficulty has arisen through a mis-description in the Will of the land comprised in the devise. The deceased owned two pieces of land in Foa which have been identified by evidence as the lands in Court Grants 194 and 195. The land in Satupa'itea is the whole of the land in Court Grant 196.

The words describing and defining the devise are continuous. There are lands answering to one part of the description of "my two freehold properties at Foa in Savai'i", and to the other part as "being Crown Grants Numbers 195 and 196", but the two together are inconsistent, for the land in Court Grant No. 196 is at Satupa'itea and not at Foa. The evidence shows that the deceased owned only two pieces of freehold land at Foa, which I have already stated are the lands comprised and described in Court Grants Numbers 194 and 195.

The principle to be applied in cases of this kind is that the Court will ascertain and determine the leading or dominant words of description, and that those words shall prevail over any words of description which are inconsistent with them.

In my opinion the leading or dominant words of description of the devise, the subject-matter of this action, are, "my two freehold properties at Foa in Savai'i", therefore they prevail over the erroneous reference to Crown Grants.

In this case evidence was adduced and admitted of a letter written by the deceased to his solicitor containing instructions for the preparation of the Will of which probate was granted and which is now under review. This letter, indeed, forwarded to the solicitor a draft will on the lines of a former Will which was to be revoked. The letter and its annexure are admissible to show the name which the testator applied to the Satupa'itea land. After referring to his inability through infirmity to go to Apia to consult his solicitor, he proceeds:

I have done what I consider the next best thing - that is, to put my wishes in the form of a draft will on the lines of the old one, and which I will send to you. You will see the main alterations are the disposal of the Mauga farm of 60 acres which goes by direct request to J.W. Gray instead of in trust to his father. The other difference is in the disposal of the station at Vaega Satupa'itea which in the former Will was given to G.O. Gray absolutely. In the new Will it is given in trust for his son (Cockey), he only to retain a life interest.

In the draft will drawn by the deceased the devise to the defendant is described in the same words as in the subsequent formal Will, but the land at Vaega Satupa'itea is specifically mentioned in the disposal of the residuary estate.

This evidence is consistent only with the view that the lands devised to the defendant were the two pieces in Foa, and not one piece in Foa and one in Satupa'itea.

The defendant submitted to the Court a copy of a letter written by the deceased to him on the 21^st December, 1930 in which deceased stated that he had left him by his Will, "the two freehold lands at Foa, 1 freehold land at Faletoi (the Satupa'itea land) with all buildings thereon erected - being Crown Grants 194, 195, 196 - together with £50 in money."

This letter is inadmissible under our rules of evidence, but had it been admitted it would have been consistent only with the plaintiff's contention.

I therefore declare the lands to which the defendant is entitled under the Will of George Gray, deceased, are the two pieces of land in the village of Foa in Savai'i, being the whole of the lands in Court Grants Numbers 194 and 195.

And I order that:-

1. The defendant do forthwith execute to and in favour of the plaintiff a conveyance of the land secondly described in the Schedule to the conveyance bearing date the 7^th day of January, 1932. Such conveyance shall be prepared by and at the expense in all things of the plaintiff and shall be tendered to the defendant for execution.

2. (a) The plaintiff's costs as between solicitor and client shall be paid out of the residuary Estate.
   

(b) The defendant's costs, which I fix at £7.7.0 plus Court fees, witnesses' expenses, and disbursements shall also be paid out of the residuary Estate.

3. Leave is reserved to either party to apply for such further order as may be necessary for the purpose of giving effect to this Judgment.