In Re Moss

2 Ch. 314 (1899)

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Nature of the Case

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Facts

Testator's will left his interest in a newspaper in trust to his wife and Fowler, his niece. Under the trust, the income from the paper was to be paid to his wife for her life and then to Fowler and the child or children of his sister who reached the age of 21, to be divided among them as tenants in common. Testator's wife was named as the residual taker of his estate. Testator died in 1893. Fowler predeceased him in 1891. Testator's widow died in 1897, leaving the residue of her estate to Kingsbury (P). At the time of the widow's death, all of the sister's five children were living and over the age of 21. P sued for an order declaring that the gift of the income from the paper to Fowler and the other nieces and nephews was not a class gift and that Fowler's share passed into the residue of Testator's estate. The lower court found that there was nothing in the will to show that Fowler was included in the class and that her share of the income from the paper, therefore, passed into the residue of testator's estate. The five children of Testator's sister (D) appeal.