Hume v Perpetual Trustees Executors and Agency Company of Tasmania Limited [1939] HCA 10

Hume v Perpetual Trustees Executors and Agency Company of Tasmania Limited [1939] HCA 10

By majority (Starke, Dixon, and McTiernan JJ), the interests appointed to the sons vested in interest immediately at the testator’s death, with enjoyment postponed until the stipulated dates, and were thus not void for remoteness or for contravening the rule against perpetuities.

Parties
Appellants (defendants): Hume and Another; Respondents (plaintiffs and Defendants): Perpetual Trustees Executors and Agency Company of Tasmania Limited and Others
Jurisdiction
Australia
Procedural Posture
Appeal / High Court of Australia on Appeal From the Supreme Court of Tasmania
Outcome
Appeal dismissed, subject to variation
Legal Topics
Construction of Wills, Rule Against Perpetuities, Powers of Appointment, Vesting of Property, Testator’s Intention
Wills and Estates Construction of Wills Rule Against Perpetuities Powers of Appointment Vesting of Property Testator’s Intention

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Parties

Hume and Another

Appellants (defendants)

Perpetual Trustees Executors and Agency Company of Tasmania Limited and Others

Respondents (plaintiffs and Defendants)

Procedural Posture

Appeal / High Court of Australia on Appeal From the Supreme Court of Tasmania

Legal Issues

  1. 1 Whether interests appointed to the testator's sons in Arundel vested at his death or were contingent upon events occurring outside the perpetuity period
  2. 2 Whether the appointment was void for infringing the rule against perpetuities

Ratio Decidendi

By majority (Starke, Dixon, and McTiernan JJ), the interests appointed to the sons vested in interest immediately at the testator’s death, with enjoyment postponed until the stipulated dates, and were thus not void for remoteness or for contravening the rule against perpetuities.

Court Disposition

Appeal dismissed, subject to variation

Orders

  • The appointment in clause 11 of the will is not void for remoteness but operates to give an equitable estate in fee simple in Arundel to Frederick William Keith Hume and Donald Carmichael Hume as tenants in common in equal shares, vested in interest from the death of the deceased.
  • Costs of all parties of appeal to be taxed and paid out of the rents and profits of Arundel, trustees' costs as between solicitor and client, costs of Enid Hume as submitting party.