Benson Estate

¶1Dissenting Opinion by

¶2I respectfully dissent, and would affirm upon the adjudication of the Orphans’ Court Division and its opinion dismissing appellant’s exceptions to the adjudication.

¶3I add the following observations.

¶4(1) It seems incontrovertible to me that paragraph 3., creating the trust of Sun Oil Company shares involved in this appeal, is flatly conditioned upon the death of the settlor’s wife, Alberta H. Pew. Until that occurs, there is to be no division into shares for children, including this decedent, and all the language of that paragraph, spelling out what happens to each share for children, is so far inoperative. The instru*74uient nowhere expressly gives this decedent any interest of any kind in the trust estate, even a right to any portion of income, until the death of her mother; I cannot see the justification for construing it as if it does. In my view, the reading of the majority effectively extirpates the words “Upon the death of my said wife, Alberta H. Pew”, which introduce the third paragraph and constitute a precondition to all of its provisions.

¶5The appellees properly cite Bostwick’s Will, 236 N.Y. 242, 140 N.E. 576 (1923), in support of this construction. Upon closely similar facts, Judge Cardozo for the New York Court of Appeals held, “Whatever right he [testator’s son, in the position of the decedent in this case] had, whether it be classified as vested or contingent, was subject to be divested by his death before his mother.”

¶6(2) In seeking to determine the settlor’s intent, I am particularly impressed with the strong and unequivocal language of the spendthrift clause, reproduced in the margin.1 It is to be noted that the shares of settlor’s children “shall only become the property of the beneficiary and/or beneficiaries when actually received by him or her as the case may be.” Moreover, the prohibition in the clause against anticipation or encum*75brance of a payment, or share, makes it impossible for a beneficiary to sell or assign part of his or her share to raise the funds wherewith to pay the taxes which are imposed upon the share by the majority’s reading, a result hardly consistent with a vested interest.