## Facts

- Walter Moss’s will placed certain shares in trust, paying income to his widow for life.
- After the widow’s death, the will directed the trustees to hold the capital “for Elizabeth Jane Fowler and the child or children of my sister Emily Walter who shall attain the age of twenty-one years equally to be divided between them as tenants in common.”
- Elizabeth Jane Fowler (the named niece) died before Moss.
- When the widow later died, Emily Walter had five children, all of whom had attained age 21.
- A devisee under the widow’s will (Kingsbury) claimed Fowler’s supposed share lapsed into Moss’s residue, passed to the widow, and then passed to Kingsbury.
- Emily Walter’s children claimed the remainder was a class gift, so Fowler’s death did not create a lapsed share and the whole remainder should be divided among them.

## Issues

1. Whether a testamentary gift “to A and the children of B who attain 21, equally to be divided between them” creates separate gifts to individuals or a single class gift.
2. If the gift is a class gift, whether a named person’s death before the testator prevents any lapse to the residuary estate.

## Decision

- The Court of Appeal reversed the Chancery Division.
- The remainder was construed as a class gift to a composite group consisting of Fowler and such of Emily Walter’s children as attained 21.
- Because Fowler predeceased the testator, she was not a member of the class when the gift took effect; no share vested in her and no portion lapsed to residue.
- On the widow’s death, the entire capital was divisible among Emily Walter’s children who had attained age 21.
- Kingsbury took nothing from this remainder interest.

## Legal Principles

- A gift phrased to a named individual and a described group “equally to be divided between them” may be construed as a class gift when the language indicates a single fund to be shared by the group as a whole.
- The fact that one potential taker is specifically named does not, by itself, require construction as separate gifts if the will’s wording and structure indicate collective treatment.
- Where class membership is determined at a future distribution date (e.g., after a life estate) and depends on conditions (e.g., attaining a specified age), that structure supports class-gift construction.
- If the disposition is a class gift, a potential member who dies before the testator (or before the relevant distribution time, depending on the terms) takes nothing; the fund is divided among the qualifying class members, rather than producing a partial lapse to residue.

## Conclusion

The Court of Appeal held that the remainder after the widow’s life estate was a class gift, so the named niece’s predeceasing the testator did not create a lapsed share; instead, the entire remainder passed to the sister’s children who satisfied the age condition at distribution.


In re Moss, (1899) 2 Ch. 314 (Ct. App.)