Dissenting Opinion by
Mb. Justice Roberts:The majority has proceeded to reverse the decree below under a view of the principles of law which is excessively strict. Neither the facts of the instant case nor the equitable nature of the proceeding justify such strictness in my view.
It seems to me clear enough from the circumstances surrounding the adoption of the second amendment to the trust that a mistake on the part of both the scrivener and the testator has been shown. To begin with, it seems highly probable from a comparison of the trust as it stood before and after the second amendment, that the amendment’s primary purpose was to avoid a possible violation of the Rule Against Perpetuities which originally appeared in the trust. The presence of this purpose suggests to me the absence of any other purpose which settlor and her advisers intended the amendment to have. Secondly the majority has suggested no reason, nor is it reasonably possible to imagine one, why the settlor would have changed *295the terms of her trust to exclude children born between the date of the amendment and the date of her death, when she included children born after her death. Such an exclusion would be so entirely capricious and frivolous that I believe it constitutes, in the absence of any explanation, strong evidence of a mistake. Thirdly, the high probability of this mistake is made conclusive in my mind by the clear evidence on this record that the scrivener recognized a mistake when he learned of the birth of Walter Weimer in December of 1942. And, as the majority itself points out the record contains no evidence that the settlor was ever apprised of the scrivener’s recognition of this gap. To hold a ninety year old lay-woman to have been aware of such a gap on her own, as the majority does, seems to me quite unrealistic.
Finally I would like to observe that the majority falls into error when it assumes that “clear, precise, and convincing” standard is not met because a witness expresses himself with equivocal rather than declarative statements. Given the fact that the scrivener was being put in a position where he was admitting a serious mistake, it seems to me that such equivocal expressions need not necessarily indicate a lack of clarity or conviction by the witness. In any event, it seems to me that the majority infringes the province of the trier of fact when it insists on its interpretation of such expressions which are equally susceptible of the different interpretation put upon them by the trier of fact.
Accordingly, I dissent and would affirm the decree below.