#certainties #equity #law
In contrast, a trust of an unidentified section of intangible property is valid: In Hunter v Moss, who owned 950 of the 1000 issued shares of a private company, orally declared himself a trustee of 5 per cent of the issued shares. This 5 per cent amounted to 50 shares. This was held to be sufficiently certain even though no particular 50 shares had been identified as subject to the trust, so it was unclear which 900 were retained by Moss. Colin Rimer QC, the judge at first instance, thought it significant that the subject-matter of the trust was intangible, since tangible assets, although apparently similar, may have distinguishing characteristics, for example some bottles of wine might have deteriorated. Intangible property, however, is all the same, provided the shares are of the same class, so there is no need to identify which 50 shares are being held on trust. Whilst Dillon LJ in the Court of Appeal stated that all the shares were identical, he held that the inter vivos trust was valid because there would have been a valid testamentary trust if Moss had died, by will leaving 50 shares for X and the remaining 900 for Y. This analogy is, however, erroneous because such a testator has clearly divested themself of all beneficial ownership in the 950 shares in favour of X and Y between them absolutely entitled to the 950 shares, but Moss was claiming he had not yet divested himself of any identifiable beneficial interest in the shares, To do this he would have had to send his certificate for 950 shares to the company secretary to issue two certificates to Moss, one for 900 and one for 50 so that the latter could then be held on trust for Hunter.
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