Attorney-General (NSW) v Perpetual Trustee Co (Ltd)

The Attorney-General for New South Wales appealed to the High Court against a decision of the Supreme Court of New South Wales. The dispute concerned the interpretation of a charitable bequest in the will of Annie Reid McDonell, who left her property, known as Milly Milly, to be held by the Perpetual Trustee Co. as a training farm for orphan lads. The Supreme Court had found that it was impracticable to use the property for this purpose and, crucially, that the testatrix had not expressed a general charitable intention, meaning the property would pass as on an intestacy.

The legal issue before the High Court was whether the testatrix had demonstrated a general charitable intention that transcended the specific instruction to use the Milly Milly property as a training farm. If such a general intention was found, the court could apply the cy-près doctrine to direct the property's application to a similar charitable purpose, even if the original plan was impossible to execute. Conversely, if the intention was solely tied to the specific use of Milly Milly, and that use was impracticable, the gift would fail.

A majority of the High Court (Rich, Dixon, Evatt, and McTiernan JJ.) held that the testatrix's paramount intention was the general charitable purpose of training Australian orphan lads in farming pursuits. They reasoned that the specific property, Milly Milly, was a means to achieve this end, not an indispensable condition of the gift. Therefore, as the property was found to be unsuitable for the intended training farm, the cy-près doctrine should be applied. Latham C.J. and Starke J. dissented, finding that the testatrix's intention was specifically tied to the Milly Milly property and that no broader charitable intent could be discerned from the will.

The High Court allowed the appeal, declaring the devise a valid charitable bequest and referring the matter to the Master in Equity to settle a scheme for the cy-près application of the property, such as selling it and using the proceeds to support orphan lads at agricultural colleges. The court also made orders regarding the costs of the appeal.