It occurs to me that the affirmance of this decree may turn out to be an empty victory for the appellee, or it may destroy or circumvent the clear intention of the testators as expressed in the so-called "dire extremity" clauses of their wills. It appears from the record that the trustees, appellants, have already impaired the corpus of the trust by advancements to Mrs. Locher, under said clause. Appellee cannot collect any of the income from the trust until said impairment has been repaired. The taking of all the income from the trust by appellee would appear to create a "dire extremity" in Mrs. Locher's condition at once, absent, of course, other sufficient income to maintain her and her family, and, perhaps, an "imperious necessity affecting a beneficiary or his family," all of which is left to the judgment of the trustees. As to what is a "dire extremity" or "imperious necessity," and "what amount of the capital is necessary to be used," the will says "the trustees shall exercise their best discretion." So, the probability is that the corpus or capital will have to be further impaired which "shall be repaired out of the future income of the trust fund." Otherwise the trust fund might all be consumed in the support of the life tenant and nothing left for remaindermen. If this should result, appellee has won an empty victory.
My further view is that the result reached by the majority creates a condition which is contrary to the clear purpose and intent of the testators as expressed in their wills. The purpose was to give Mrs. Locher the income from the trust fund for life with remainder to the heirs of her body, and she has living children. The total of the corpus of the fund is small. As of August 9, 1943, it amounts to $22,303.64 under both wills, and the total income for the fiscal years ending in 1943, was $1,085.70. The income has not been sufficient in the past to meet *Page 329 Mrs. Locher's requirements and the trustees have, on three separate occasions, acting under the "dire extremity" clause, made impairments of the corpus, all of which has been repaid from income, except $100. If appellee is permitted to take all the income, after the impairment is repaid, she will, no doubt, then be in "dire extremity" which could only be met by an impairment of the corpus, which, in time, might reasonably take all the principal and leave nothing from which income could arise, and nothing for the "heirs of her body." It seems to me that by force of necessity, in order not to nullify the wills in this respect, the income from the trust fund was intended to be inalienable, and that the corpus of the trust was to be held unimpaired, except in case of "dire extremity" of Mrs. Locher or her family, which would be in addition to the income. In other words, if all the income was insufficient to meet her necessities, then only could the trustees invade the corpus for her benefit, and it was not contemplated that she could sell or alienate the income, or that it would be subject to be taken away from her by creditors. To permit this suit to succeed nullifies and destroys the clear purpose of the testators, which may not be done. Under all the decisions of this court a will should be construed to effectuate the purpose of the testator, if not contrary to some rule of law.
I, therefore, respectfully dissent and am authorized to say that Mr. Justice HOLT concurs in the views here expressed.