In re MOSS (Eng 1899),: Main point – unlike many probate cases, the court tried to step into testator’s shoes and effectuate the intent of testator.
a. Facts – will left a “trust, income to my wife for life, remainder to E.J. Fowler and the children of Emily, residue to my wife.” E.J. Fowler predeceased testator. The lower court held that, as a gift to individuals, Fowler’s share lapsed, went to wife.
b. Held – Rev’d: Since E.J. and Emily’s kids are all nieces and nephews, the gift was to a class. Therefore, under class gift rule, Emily’s kids take all. J. Lindley relied on a semantic argument to say that shares should go to the living over the dead. So, Emily’s kids take all of the stock. This class closes on the testator’s death, not on life tenant’s. The kids have a vested remainder subject to partial divestment.
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