Hume v Perpetual Trustees Executors and Agency Company of Tasmania Limited

The case of *Hume v Perpetual Trustees Executors and Agency Company of Tasmania Limited* concerned the interpretation of a testator's will and its exercise of a special power of appointment over a property known as Arundel. The testator, Frederick William Keith Amos Hume, had received this power under a deed of settlement. He died leaving four infant children, and by his will, he appointed Arundel to his trustees upon trust for his two sons, to be enjoyed when his youngest daughter attained the age of twenty-seven, or, if she did not reach that age, when his youngest son attained the age of twenty-eight. The daughters of the testator appealed from the Supreme Court of Tasmania to the High Court of Australia.

The central legal issues before the High Court were: first, whether the testator's appointment of Arundel to his sons was valid, or if it infringed the rule against perpetuities; and second, the proper construction of the words "as and when" in the context of the gift to the sons, and whether these words indicated a contingent or vested interest. The daughters argued that the interests appointed to the sons were contingent and would vest outside the perpetuity period, rendering the appointment void. If the appointment were void, the property would devolve according to the default provisions of the settlement, which would benefit the daughters.

A majority of the High Court (Starke, Dixon, and McTiernan JJ.) held that the sons took vested interests in Arundel at the death of the testator, and therefore, the appointment did not infringe the rule against perpetuities. Their Honours reasoned that while the words "as and when" might prima facie suggest contingency, the overall scheme of the will, including provisions for the management of the properties and the application of income for the maintenance and education of the sons, indicated an intention for the interests to be vested, with possession postponed. The court distinguished the case from authorities where similar wording led to a finding of contingency, finding sufficient context within the will to support immediate vesting. Latham C.J. dissented, finding the interests to be contingent and thus void for remoteness. The decision of the Supreme Court of Tasmania was affirmed.