In re Moss
[1899] 2 Ch. 314, aff’d [1901] A.C. 187 (H.L.)

  • Moss lived in England. He made his wife Elizabeth and his niece Fowler co-executors in his estate. His will created a trust that that would provide for Elizabeth for the rest of her life, and then go to “Fowler and the child or children of my sister Emily who shall attain the age of 21 equally to be distributed between them as tenants in common.”
    • At the time the will was executed, Elizabeth, Fowler (who was under 21), Emily, and Emily’s 5 children were all still alive.
      • Fowler then predeceased Moss.
  • A few years after Moss died, his wife Elizabeth died.
    • Elizabeth’s heirs argued that since Fowler predeceased Moss, her share of the trust had lapsed into Moss’s residual estate, which passed to Elizabeth which now passed to them.
    • Emily’s children argued that the trust was a class gift, and as the only remaining survivors of that class the entirety of the trust should pass to them.
  • The Trial Court found for Elizabeth’s heirs and decided that Fowler’s share had lapsed. Emily’s children appealed.
    • The Trial Court found that Fowler was not part of the class gift that went to Emily’s children. While Emily’s children represented a class that should get a share of the trust, Fowler was a separate named individual who got a share the trust.
  • The English Appellate Court overturned and found that Fowler was a member of the class.
    • The Appellate Court found that there was no good common law on this issue, so they’d have to come up with a rule de novo.
    • The Appellate Court found that a class gift can include both named and unnamed individuals. The important factor was determining the intent of the testator. In this case, it was clear to the Appellate Court that Moss wanted the entirety of the trust to go to the people he named as beneficiaries. To give part of the trust to someone who was not named as a beneficiary would frustrate the intent of the testator.