Dissenting Opinion
Bolger, J.,May 6, 1955. — Courts have recently been terminating trusts with such frequency that some danger signals should be raised in addition to those expressed in Bosler’s Estate, 378 Pa. 333. The zeal with which existing hardship of the beneficiaries, or the difficulty of administering the trust is utilized as the fundamental reason for termination, has led to courts seizing upon any possible basis of equity to accomplish the purposes. Reflection reveals that in some instances the grounds are really tenuous or are actually without foundation.
We should be more concerned with stare decisis. This trust arose long before the enactment of the Estates Act of 1947, 20 PS §301.1, which is not retroactive and, therefore, has no application to this case: Bosler’s Estate, supra. Will the instant case and the other related decisions, more particularly the several reasons assigned in support of them, rise to haunt this and other courts in the future? We might feel that this decision is sui generis, but how many other courts will so regard it?
Hearing judges must appreciate the danger involved in the ex parte aspects of these cases. The trustee is complacent and all of the parties who are sui juris agree with little deference being paid to contingent interests, real or unascertained. The proceeding is, therefore, not an adversary one. This situation offers a perfect opportunity for sympathy to play a major role in influencing the court’s action. In this case that *415element was largely eliminated for the court en banc by the appointment of an amicus curiae, who served without compensation.
No quarrel can be found with the principle that we have the equitable power to terminate small trusts where the intention of testator has been frustrated and the continuation of the trust will serve no useful purpose. However, that principle can only be applied when the appropriate legal principles involved in will construction result in the ascertainment of testator’s purpose in the first instance.
In Kelby Estate, 80 D. & C. 1, Judge Lefever in an adjudication stated, inter alia, that testator “had an intention to make adequate financial provision for the income beneficiary”. Whether or not that was actually testator’s intention in that case, there is no basis for such a legal conclusion here. Consideration of the hardship in which present life tenants find themselves cannot support a termination any more than does the meager amount of the res (Bosler Estate, supra) or of the longevity of the trust (since no serious consideration has been paid either in the adjudication or in the opinion to the allegation that the trust offends the rule against perpetuities). Any hardship here has not proceeded from testatrix’s benefaction; the estate was meager when she died. This is no valid reason for destroying this trust. The plain language of this will is unquestioned (Jury Estate, 381 Pa. 169) and it should be effectuated. The majority of the court, instead of putting themselves in the armchair of testator (Jackson Estate, 337 Pa. 561), take a purely pragmatic position and attempt to put testatrix in their armchairs and speculate that if she were alive today, she would want the trust terminated. This action partakes of an attempted cy pres, which doctrine has no application to private trusts: White’s Estate, 340 Pa. 92.
*416Whether a trust has failed or not is a question of fact, in the ascertainment of which all circumstances must be reviewed. Even when a testator’s purpose is to make “adequate” provision for life tenant, it is testator’s and not the court’s evaluation of what testator meant by thé term “adequate”. Many of the cases have employed the philosophy of the Estates Act of 1947, supra, which legalizes the termination of spendthrift trusts of $25,000, and under, as a basis for decision. That philosophy might be grossly misleading because a judge’s notion of “adequate” provision for a life tenant under the present rate of return might require principal of any sum up to $200,000. The donor might actually desire to honor life tenant and to be favorably remembered by him for so doing by providing small periodic sums of income, even pittances. We should not be so material-minded as to dishonor such or other like purposes. Are we to lay down a rule that would sustain a rich man’s trust but would destroy a poor man’s trust? Where is the line to be drawn and who is to draw it, if not testatrix?
The part of the majority opinion dealing with the extinction of the possibility of issue is particularly open to objection. It is pure dictum and, therefore, has no force. The hearing judge found the evidence on the subject insufficient and it was not pressed by the parties before the court en banc. The essential findings of fact cannot now be made because they must be based upon evidence which does not exist. The citation of Kelby Estate, supra, with approval is not only unnecessary to the decision, but its authority is objected to. The long line of binding precedents to the contrary, the last being Dickson’s Estate, 370 Pa. 48, 50 constitute the first reason. Another is that it finally ignores the impact of the conclusive presumption of law that a child born during wedlock is presumed to be legitimate. In McKee Estate, 378 Pa. 607, 108 A. 2d 214, *417the only parties to appeal to the Supreme Court were the offspring of a patently illegitimate child of John McKee. Our ruling was that the child having be'en born during wedlock was presumed legitimate and his offspring were, therefore, proper parties in the proceeding.
The contingent remainderman, the charity, has apparently been very obliging by renouncing its interest. Whether a charity can renounce a legacy, it is unnecessary to decide. However, that does not necessarily indicate that the contingent interest which it renounced disappears entirely from the consideration of the court. Whether or not it should be cy presed is a question which the auditing judge or the majority opinion-writer should pass upon. No such conclusion appearing, it is error to gloss over this interest so lightly.
For these reasons the trust should not be terminated and the petition praying for its termination should, therefore, be refused.