dissenting. — I dissent from the opinion of the majority of the court with very great regret, as my sympathy is with the Pennsylvania Hospital, one of our noblest charities, but I should not allow my sympathy to control my legal judgment. In my opinion, this is not a case where we can apply the recent Act of April 14, 1931, P. L. 29.
When the case came before the court for the first time over fifty years ago, the hospital asked that the sum of $125,000 be set aside to secure the payment of the annuities then existing, amounting to $5400 per annum, and that the remainder of the personal estate, said in the report to be $95,547.49 (which seems to be an error for a much larger amount), be awarded to the hospital, and this court so decreed in an opinion by Ashman, J. [38 L. I. 270, 11 W. N. C. 22.] The executors took an appeal to the Supreme Court, and on October 5, 1882, that court, Sharswood being then Chief Justice, reversed this court in an opinion by Mr. Justice Mercur, in which it was said (Biddle’s Appeal, 99 Pa. 525, 533): “The portions of the will to which we have referred, show the whole estate, present and prospective, to be given to the executors upon trusts clearly defined. They are to hold and manage the whole estate existing at the death of the testator, and also the subsequent accumulations. They are to collect the rents and profits; sell lands; invest proceeds of lands and all unexpended funds coming to their hands: pay the taxes and insurance on the buildings devised to Algemine D. Smith, for her life, keep the same in repair, and in case of destruction by fire, rebuild them. The specific direction to invest the accumulations clearly assumes a probable increase of the estate, during the life of annuitants: yet there is no intimation either expressed or implied that prior to their death, any portion thereof shall be given to the hospital.
“The transfer or payment to the hospital is not to be made in installments or at different times: but all at one time. It is not to be made until ‘after’ the decease of the annuitants, and not until ‘after’ payment of all charges, taxes, repairs and insurance: and not until ‘after’ payment of all charges and expenses incident to the sale, management and ‘settlement’ of the whole estate. ‘After’ every other purpose of the trust has been fulfilled and satisfied — then, and not till then, the testator directs a transfer be made to the hospital. The trust is active during the life of the annuitants.”
The twelfth account of the trustees was filed in April, 1912. All of the annuitants had died, except one, who was Mrs. Caroline Schelling. She had *206agreed with the hospital to release her annuity upon payment to her of $25,000, and the joint petition of Mrs. Schelling and the hospital was presented, asking that the trustees, upon the execution of her release, assign and transfer the whole of the trust estate to the hospital. It was there said in the adjudication of the Auditing Judge:
“The real question in the case is whether the testator postponed the final distribution of the estate until a definite, fixed time, to wit, the death of all the annuitants, for their protection or whether he intended that his estate should accumulate for the benefit of the hospital until the happening of that event.”
It was further said:
“There is no tangible distinction, so far as the present question is concerned, between the facts as they existed when Biddle’s Appeal was decided and those that are now presented.”
Exceptions were dismissed by the court in banc [22 Dist. R. 153], and an appeal therefrom was taken to the Supreme Court. The personnel of the Supreme Court had entirely changed in the meantime, and the court, as then constituted, filed a per curiam, opinion, 239 Pa. 389, reiterating its former views.
The present account is filed by Provident Trust Company, as substituted trustee, and the estate has grown to $3,000,000. Caroline Schelling, being now, as she was in 1912, the only surviving annuitant, has executed a deed by which, for an adequate consideration by her received, she released and discharged the trustee from all claims and demands by reason of her annuity of $800.
This case has been tried by fire and twice refined in the crucible of the Supreme Court, which, in its decisions above cited, has clearly and emphatically construed the will of this testator. According to this construction, the testator directed his trustees “to hold and manage the whole estate existing at his death, and also the subsequent accumulations” until the death of all of Algemine D. Smith, Caroline Derbyshire and Eliza Ann Henszey, who are mentioned nominatim, and it was further said that there is no intimation, either express or implied, that prior to their deaths any portion of the estate shall be given to the hospital. For over fifty years this has been the settled construction of the testator’s will.
The situation now is precisely the same in legal effect as it always has been, for we do not agree with the argument of the learned counsel for the hospital that the death of all the original trustees makes any difference.
Has this court now the right, under the recent Act of April 14, 1931, P. L. 29, to exercise any discretion in the matter and terminate the trust?
In my opinion we have not. It may be granted that the legislature has, in general, power to pass retroactive legislation, although Chief Justice Gibson said in Greenough v. Greenough, 11 Pa. 489: “All ex post facto laws are arbitrary; and it is to be regretted that the constitutional prohibition of them has been restricted to laws for penalties and prohibitions,” and Judge Sharswood said in Taylor v. Mitchell, 57 Pa. 209: “Retrospective laws generally if not universally work injustice, and ought to be so construed only when the mandate of the legislature is imperative.”
The Acts of May 9, 1889, P. L. 173, and May 23, 1895, P. L. 114, relative to charitable gifts and the cy pres doctrine, were intended to carry out the charitable purposes of a testator, and not to defeat them. Such retroactive statutes may, therefore, properly be sustained. None of the cases cited in the opinion of the majority of the court approve of retroactive legislation at all resembling that involved in the present case.
*207My objections in the present case are twofold. First, as is said in Cooley on Constitutional Limitations, 190: “Legislative action cannot be made retroactive upon past controversies and to reverse decisions which the courts in the exercise of their undoubted authority have made,” and, as is stated in Black, Constitutional Law, 88: “When litigation has proceeded to a judgment which determines the controversy on its merits, it is beyond the power of the legislature to alter or control it, hence that body cannot vacate or annul a final judgment, nor in any way invalidate or set it aside, nor empower the court to do so,” citing, among other cases, De Chastellux v. Fairchild, 15 Pa. 18. This, to be sure, concerned a special act of assembly, granting a new trial in a case decided by the Supreme Court, but, as was said by Gibson, C. J., in Greenough v. Greenough, 11 Pa. 489, a general law may impinge on particular rights. Baggs’s Appeal, 43 Pa. 512, is another similar case. And in McCabe v. Emerson, 18 Pa. 111, after a judgment had been affirmed by the Supreme Court, the Act of March 22, 1850, P. L. 230, general in its terms, authorized another writ of error to be taken by the other party to the litigation. The Supreme Court held that the statute was beyond the power of the legislature, and in my opinion, the Act of April 14, 1931, in its application to the present case, is likewise.
Secondly: It is claimed by the learned counsel for the exceptant in his able and eloquent argument — and I quote the language of his paper book: “The Pennsylvania Hospital is now alone interested in the estate. The trustee joins with the remainderman [the hospital] in requesting the termination of the trust.” And again: “Since the release of her legacy by Caroline Derby-shire' Schelling, The Pennsylvania Hospital alone has any property rights under the will.” This argument ignores the important fact that in the prior decisions of this case the estate was awarded to the trustee under the will, who holds the title thereto for the uses and purposes of the trust, as that trust has been construed by the court. The trustee’s right to hold the estate implies a correlative duty to do so, that is, to hold and accumulate the estate until the death of the survivor of the four persons named in the will. This is a duty, and an imperative duty, which the trustee cannot avoid by agreeing to the termination of the trust. Were this not so, no trust would be safe. See Mead v. Sherwin, 275 Pa. 146, 156. In Snyder’s Estate, 274 Pa. 574, where the executor and trustee did not defend the trust, but stated “we have nothing to offer in defense,” the court below appointed, suo motu, a trustee ad litem, and this was approved by the Supreme Court. Stoffel’s Estate, 295 Pa. 248, is a recent and cogent authority, where the Supreme Court said that a testator in Pennsylvania “may die with the justifiable conviction that the courts will see to it that his dispositions, legally made, are not departed from by those charged with the duty of performance, or improperly defeated by agreement between those upon whom he bestowed his bounty.”
Aside from what has been said above, and assuming that all the provisions of the Act of April 14, 1931, are applicable to this case, it will be observed that it provides: “Said court may . . . decree that the trust be settled and ended,” etc. The power of this court at most is purely discretionary, and, in my opinion, this court should not exercise such discretion unless the Supreme Court, whose prior decisions will be set aside, should decide in the appeal, which should certainly be taken in this case, that we have the right to do so.
I would dismiss the exceptions to the adjudication.
Lamorelle, P. J., concurs in this opinion.