Dissenting opinion
Hunter, J.,November 26, 1948. — When a remainderman’s interest in the principal of a trust is subject to a spendthrift provision, the purpose of testator can be accomplished only by extending the protection of the trust until the property reaches the hands of the remainderman. If creditors whom testator has barred may come in with their attachments on the day the remainder vests or the trust terminates by the death of life tenant, there can be no payment of the estate to the beneficiary to whom testator has willed it. If the operation of the spendthrift clause is limited to the period during which the remainder is contingent, the remainderman in that period has no power to deal with it, but must await the inevitable day when his creditors will take it from him. Testator by the spendthrift clause of his will has accomplished exactly nothing except to delay the creditors in the collection of their claims.
No distinction can be made between voluntary and involuntary alienation. If it is conceded that the owner of a vested interest may deal with it as his own, then his creditors may reach it, including those whose claims arose before his ownership began: Morgan’s Estate (No. 1), 223 Pa. 228.
A vested remainder may be protected by a spendthrift trust: Barker’s Estate, 159 Pa. 518, 526; Rockhill’s Estate, 29 Pa. Superior Ct. 28; Schmidt’s Estate, 5 D. & C. 470; Jacob’s Estate, 45 York 17.
An absolute legacy, in which no one but the legatee has an interest, may be protected while in the hands of the executor: Beck’s Estate, 133 Pa. 51; Coe’s Estate, 146 Pa. 431; Holmesburg Assn. v. Badger, et ux., 144 Pa. Superior Ct. 65,
*196Testator recites that the remaindermen are not “to receive the principal of their share unless or until they attain a certain age”, and directs that they shall not anticipate principal “prior to the time when I intend they shall receive it”.
Two events had to occur before the remainderman came into the enjoyment of his estate. The first, mentioned event was the death of life tenant, and the second the attainment of age.
I do not believe that testator used the word “receive” as a reference merely to the time of vesting. Although vesting did take place at the required age, the remaindermen could not “receive” the property until life tenant’s subsequent death, and further until an account had been filed by the trustee and actual distribution made. “Receive” must refer to the time of possession and enjoyment; otherwise, the creditor could prevent the property from ever coming into the enjoyment of the legatee.
In my opinion a construction which would restrict the operation of the clause to the period when the remainder was contingent, would destroy the purpose of testator.
Hall’s Estate, 248 Pa. 218, is to be distinguished. There income and not principal was subject to the spendthrift provision. The court said (p. 222) :
“The spendthrift clause protecting the income, incidentally protected the corpus during the period of the trust from execution or passing by assignment, Siegwarth’s Est., 226 Pa. 591, as there could be no income without the trustee’s possession of the corpus. There is nothing in the will or in the codicil which indicates an intention to subject the principal to spendthrift trust.”
It is suggested that the ease of Rowland v. Martin, 230 Pa. 518, is in point. I do not think so. George W. Moore had a contingent interest in remainder and the *197question was whether a spendthrift trust clause affected his interest. Life tenant, Helen Moore, was living. George was over 21 at the date of the deed of trust. It was held that the spendthrift trust “relates only to the estate to he held in trust for that class of issue referred to as being, ‘under the age of 21 years at the time of the decease of the said Helen Moore . . and that George’s interest in principal was never affected at any time (italics supplied) by the spendthrift provision. That is to say, the contingency upon which his share was to be affected by a spendthrift trust did not occur.
I would sustain the exceptions.
Van Dusen, P. J., joins in this dissent.