dissenting.
I dissent. Our duty in this case is to determine and apply the intent of the settlor as to when the’trust is to terminate. The issue is the meaning of the words used in the termination clause, providing the trust would terminate “at the decease of my last surviving child, and when both my daughters-in-law and my son-in-law shall have died or remarried . . . ” (Emphasis added.)
The majority claims that the testator’s intent cannot be discerned with reasonable certainty and, therefore, they “construe the termination clause to include Mary K. Frank, who, after execution of the trust, became a daughter-in-law of testator and stood in that relation to him.” (at 124) The fact of the matter is that Mary K. Frank never “stood in that relation” to Isaac Frank. How can one be considered a daughter-in-law of a man who had died 15 years prior to the marriage? I do not believe that Isaac Frank considered, in 1927, that a possible future spouse of one of his children, who might remarry after his (Isaac’s) death, would be construed as his “in-law”. As aptly stated by the dissenting opinion of Judge J. Frank McKenna, joined by Judge Paul Zavarella, in the court below, “[t]o construe the words ‘both’ as referring to daughters-in-law, known and unknown, on the one hand, and son-in-law on the other, would result in a strained and unnatural construction and one which we believe testator never intended.”
I find other portions of the trust instrument illuminating in the quest for Isaac Frank’s intent, which I find can be determined with reasonable certainty. First, a reading of the instrument reveals that, with respect to income interests, Isaac used the phrase “his [referring to his sons’] wife or her surviving husband,” which is significantly different terminology from “both my daughters-in-law and my son-in-law,” the phrase employed by Isaac to describe those persons whose death or remarriage would trigger the termination of *129the trust. Obviously, he was aware of the distinction. A logical explanation of the distinction is that the settlor intended his children’s spouses, whoever they might be, to share in the income of the trust until their death or remarriage, but not at the expense of unduly delaying the vesting in enjoyment and possession of the gifts over to his grandchildren. Thus, in the termination clause, he referred, albeit not by name, to six designated individuals — his two sons and “both of my daughters-in-law,” and his daughter and “my son-in-law.”
Second, other portions of the instrument indicate that Isaac was familiar with and sensitive to the limitations on future gifts to his grandchildren imposed by the rule against perpetuities.1 Historically, a well-known perpetuities problem is the classic case of the unborn-widow of a child of a settlor or testator. Leach, Perpetuities in a Nutshell, 51 Har.L.Rev. 638, 644 (1938). Thus, where the settlor makes a gift in trust “to my son A, for life, then to his wife if surviving, for her life, then to their children,” the son could marry a woman not in being at the time the trust is created; the gift to the children of A would, therefore, be void under the common law rule against perpetuities because of the possibility that their interests would not vest until more than 21 years after lives-in-being at the creation of the future interest (the son could predecease the “unborn widow” who could survive him by more than 21 years). Since Isaac Frank, concerned as he was with the rule against perpetuities, would not desire this result, his reference to “both his daughters-in-law and my son-in-law” was a reference to those daughters-in-law and the son-in-law existing at the time he created the trust.
The majority answers this argument by applying the “actual events” test, adopted by our legislature in 1948, to the gifts to the grandchildren, concluding that, because *130actual events have disclosed that Mary K. Frank was, in fact, a life-in-being when the trust was created, and because no interest could vest beyond 21 years after either her death or remarriage, “construction of the trust’s termination clause to include Mary K. Frank as a ‘daughter-in-law’ presents no violation of the rule against perpetuities.” (at 125) The difficulty with this analysis is that it treats the issue as solely a determination of the validity of the grandchildren’s remainder interest. This is not the issue. We are here concerned with Isaac Frank’s intent at the time he created the trust, in 1927.
At the time he executed the trust agreement, the settlor necessarily had to be concerned with possibilities, since it would require a fortune-teller to know, in 1927, events that would transpire in 1945. The use of a hindsight analysis to determine the present validity of the interests created is of no consequence in the search for Isaac’s intent, especially since, in 1927, the common law rule against perpetuities prevailed. Thus, the settlor would have had to be clairvoyant not only as regards his children’s future relationships, but also as regards the actions of the legislature in adopting the “actual events” test (alternatively referred to as the “second look” doctrine or the “wait. and see” approach).
Therefore, I find that Isaac Frank did not intend to create future interests in his grandchildren which, when the trust was created, were in violation of the rule against perpetuities as it was then applied in this Commonwealth. Consequently, he referred in the termination clause to six “lives-in-being,” his three children and his three in-laws then existing. Under this interpretation, Mary K. Frank is excluded from the termination clause and the trust, therefore, terminated when Bessie Frank Anathan, the last of those six individuals, died in 1976.
For the foregoing reasons, I would reverse the Order of the court below and remand for proceedings not inconsistent with this Opinion.
MANDERINO, J., joins in this dissenting opinion.. The trust agreement states, in relevant portion: “At the time when this trust would otherwise cease as herein directed, the majority of my surviving grandchildren may elect that it continue for any term as is not inconsistent with the law of Pennsylvania against perpetuities ...”