Macpherson v Maund

The case of Macpherson and Another v Maund concerned a dispute over the distribution of a testator's estate, which was governed by both a will and a settlement executed around the same time. The primary issue before the High Court of Australia was the validity of an ultimate gift to the children of Peter Dunn, which followed prior limitations that had been declared void for remoteness by the Supreme Court of New South Wales. The appellants, the testator's daughters, argued that the ultimate gift was dependent on and ulterior to the void prior limitations, and therefore also invalid.

The legal question before the High Court was whether the ultimate gift for the children of Peter Dunn, who attained the age of twenty-one years, was rendered void by the rule against perpetuities due to its position following prior limitations that were themselves void for remoteness. Specifically, the court had to determine if the phrase "and subject as aforesaid" indicated that the ultimate gift was contingent upon the failure of the preceding void gifts, or if it was an independent or alternative disposition intended to take effect regardless of the validity of those prior limitations.

The High Court, affirming the decision of Nicholas J. in the Supreme Court of New South Wales, held that the ultimate gift was valid. The court reasoned that the phrase "and subject as aforesaid" should be interpreted as meaning "subject to the operation of preceding dispositions, so far as they do operate." This interpretation meant that the ultimate gift was intended to take effect upon the failure of the preceding dispositions for any reason, including invalidity due to remoteness. Therefore, the ultimate gift was not dependent on or expectant upon the void limitations and was not affected by their invalidity. The court noted that the gift to Peter Dunn's children, by its nature, would vest within the perpetuity period, and its validity did not hinge on the success of the earlier, void trusts. The court ordered variations to the Supreme Court's declarations to accurately reflect the effect of its decision.