(concurring in part and dissenting in part, with whom Hennessey, C.J., and Nolan, J., join). I join in the court’s decision to announce the new rule of construction which defines “issue” to include all biological descendants regardless of the marital status of the parents, overruling the rule of construction of Fiduciary Trust Co. v. Mishou, 321 Mass. 615 (1947). I cannot agree, however, with the court’s determination that the new rule not apply in this case.1 There are two compelling reasons to apply the rule announced in a decision to the litigants involved.
First, by merely announcing the new rule without applying it, the court’s action amounts to no more than dictum. Myers v. Drozda, 180 Neb. 183 (1966). Kojis v. Doctors Hosp., 12 Wis. 2d 367, 373-374 (1961). Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill. 2d 11, 28 (1959), cert. denied, 362 *664U.S. 968 (1960). Note, The Retroactivity of Minnesota Supreme Court Personal Injury Decisions, 6 Wm. Mitchell L. Rev. 179, 184 (1980); Schaefer, The Control of “Sunbursts”: Techniques of Prospective Overruling, 42 N.Y.U.L. Rev. 631, 638 (1967). The court is commenting on an issue which is irrelevant to the disposition of the case. Currie, Suitcase Divorce in the Conflict of Laws: Simons, Rosenstiel, and Borax, 34 U. Chi. L. Rev. 26, 61 (1966).
Second, and more importantly, prospective overruling results in excluding the particular plaintiff and has the potential to remove any incentive to bring challenges to existing precedent because the appellant is deprived of the benefit for the work and expense involved in challenging the old rule, which is admittedly erroneous. See Molitor, supra at 28; Myers, supra at 187; Kojis, supra at 373. To encourage parties in future cases to raise issues which reform and rid the law of antiquated legal doctrines, they should be given the benefit of the new rule. Schaefer, supra.
Courts in other States have applied a new rule or a change in the law to the plaintiff challenging the rule. See, e.g., Nga Li v. Yellow Cab Co., 13 Cal. 3d 804 (1975); Dawson v. Olson, 94 Idaho 636, 639-640 (1972); Barker v. St. Louis County, 340 Mo. 986 (1937); Myers v. Drozda, 180 Neb. 183 (1966).2 Moreover, where the issue has arisen either explicitly or implicitly in the various contexts, from negligence and charitable immunity3 to estate and family law to the property *665rules dealing with the problem of surface water, courts have applied the new rule to the appellant. See In re Marriage of Brown, 15 Cal. 3d 838 (1976) (community property); Nga Li, supra (negligence); Matter of Hoffman, 53 A.D.2d 55 (N.Y. 1976) (wills’ construction); State v. Deetz, 66 Wis. 2d 1 (1974) (common enemy rule of property); Kojis, supra (charitable immunity). Courts apply the new rule to the case at issue, in part because of the public policy consideration of encouraging litigants to initiate challenges which bring about needed changes in the law.4 See Nga Li, supra at 829-380; Molitor, supra; Barker, supra at 1003.
The court’s primary concern in declining to apply the rule announced today to the parties here appears to be the reliance interest of the Bar.51 agree with the court that in the areas of contract and property law “retroactive invalidation of an established principle is to be undertaken with great caution.” Sullivan v. Burkin, 390 Mass. 864, 871 (1984). But, by applying the decision retroactively to the parties before the court, the court does not sacrifice the caution so important in the development of new rules in this area of the law.
The court relies on Sullivan, supra, to conclude that the new rule of construction is not determinative of this case. In Sullivan, *666a widow sought a determination that the assets held in an inter vivos trust were part of her husband’s estate for purposes of establishing her statutory share. The old rule did not permit the surviving spouse to reach assets in an inter vivos trust. It is clear that the husband in Sullivan, through the organization of his affairs and the contents of his will, seemed to be fully aware of this old rule and explicitly sought its protection to prevent his wife from obtaining any of his assets. Therefore, due to the reliance on this old rule, the court denied the widow relief, although the rule was altered prospectively to permit a surviving spouse to reach assets in an inter vivos trust. Id.
Unlike the situation in Sullivan, the intent of this donor in 1959 when she established this trust is far from clear. In fact, it is likely that the donor did not have any “intention at all with respect to the question facing us in this case.”6 Boston Safe Deposit & Trust Co. v. Fleming, 361 Mass. 172, 186 (Braucher, J., dissenting), appeal dismissed, 409 U.S. 813 (1972). Similarly, the New York Appellate Division, in facing an analogous question, noted that it cannot “be said with any degree of assurance that at the time [the testatrix] executed her will she was provided with an explanation of the word ‘issue’ which appeared on the typewritten pages of that document.” Matter of Hoffman, 53 A.D.2d 55, 63 (N.Y. 1976). See Matter of the Estate of Best, 66 N.Y.2d 151, 153 (1985) (accepting Hoffman definition of issue to include legitimate and illegitimate children), cert. denied sub nom. McCollum v. Reid, 475 U.S. 1083 (1986).
Similarly, the Wisconsin court, in carving out an exception to the traditional rule of construction if the illegitimate child is a member of the family circle, noted that once statutes and legal presumption are put aside, there is nothing in the record to indicate that the donor would not have intended to include this particular child.7 In re Trust of Parsons, 56 Wis. 2d 613, *667617 (1973). Because the donor’s intent cannot be discerned from the trust instrument and the court today seeks to “unburden[ ] children from the stigma and the disadvantages heretofore attendant upon the status of illegitimacy,” ante at 661, I would not perpetuate the harshness of the traditional rule of construction to deny this nonmarital child8 participation in the donor’s trust.
By giving relief in this case, the court does not harm the reliance interest of the Bar.9
It is hard to understand why the Bar’s reliance should come before the interests of the child, and the reason articulated by the court does not compel such an unjust result. In fact, the court, by not granting relief in this case removes the incentive of the Bar to change rules which are no longer useful or relevant. The potential negative ramifications which flow from the court’s decision today on the incentive of attorneys to challenge outmoded legal doctrine may be avoided by granting relief in this case. Although the court criticizes the injustice of the law’s treatment of nonmarital children in the past, claiming that “[o]urs is an era in which logic and compassion” dictate that nonmarital children should no longer be stigmatized, ante, it imposes punitive treatment on this particular nonmarital child. The cruel irony of the court’s decision is that not only does this child not receive the benefit of the change she brought about in the law, but, prior to this decision, she was receiving payment from the trust and now, as a result of the decision, she can no longer receive these payments. I respectfully dissent on the failure of the court to apply the new rule to this case.
There is no constitutional problem in applying the new rule to the child in this case. Great N. Ry. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 364 (1932). See, e.g., Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill. 2d 11, 28 (1959). cert. denied, 362 U.S. 968 (1960); Parker v. Port Huron Hasp., 361 Mich. 1, 26-27 (1960); Case Comment, Prospective — Retroactive Overruling: Remanding Cases Pending Legislative Determinations of Law, 58 B.U.L. Rev. 818 (1978).
Many courts apply the new rule to the parties without extended discussions. See, e.g., In re Estate of Mertes, 34 Ill. App. 3d 557 (1975) (trust construction); Farmers Bank & Capital Trust Co. v. Hulette, 293 S.W.2d 458 (Ky. 1956) (wills’ construction); Cooper v. Government Employees Ins. Co., 51 N.J. 86 (1968) (contracts); Pendergrast v. Aiken, 293 N.C. 201 (1977) (property); Pickering v. American Employers Ins. Co., 109 R.I. 143 (1971) (contracts).
In Payton v. Abbott Labs, 386 Mass. 540, 565 (1982), we noted that the reliance interest plays a much smaller part in tort law than in property or contract law. But, at least as to tort decisions involving the abolition of immunities, courts have noted that the reliance interest is fairly great. See, e.g., Myers, supra; Terracciona v. Magee, 53 N.J. Super. 557 (1959). Due to this reliance, courts have adopted innovative solutions to the question of retroactivity, see Myers, supra (decision partially retroactive as to all insured charities), while still applying the new rule to the instant case.
Uneven treatment arguably results if only the litigant is benefited by the new mle and similarly situated individuals are not benefited, having to proceed instead under the old rule. But, as the Supreme Court stated, “the fact that the parties involved are chance beneficiaries [is] an insignificant cost for adherence to sound principles of decision-making.” Stovall v. Denno, 388 U.S. 293, 301 (1967). One commentator has explained this inequity in treatment by suggesting that the individual “who successfully challenges existing legal doctrine can be, and has been, regarded as having thereby set himself apart.” Schaefer, supra at 638.
There is some indication that this reliance interest has been overemphasized by courts. One commentator quotes Justice Cardozo as saying that “[m]y impression is that the instances of honest reliance and genuine disappointment are rarer than they are commonly supposed to be by those who exalt the virtues of stability and certainty.” Note, Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale L.J. 907, 946 n.194 (1962), quoting Cardozo, Address Before tire New York State Bar Association, 55 Rep. N.Y. State Bar Ass’n 263, 295 (Jan. 22, 1932). See Levy, Realist Jurisprudence and Prospective Overruling, 109 U. Pa. L. Rev. 1, 28-29 (1960).
While the attorney perhaps understood the legal significance of the terms he selected, it is not clear on" this record that the donor had any such understanding.
Moreover, all of the living beneficiaries of this trust have been notified of this action, and the record before us indicates that those beneficiaries have not objected to. the inclusion of this child as a beneficiary.
It is of no consequence that this suit was initiated by the trustee instead of the child. As has happened in the past, the trustee may bring an action to resolve a question concerning the distribution of a trust. See Boston Safe Deposit & Trust Co. v. Fleming, 361 Mass. 172 (1972).
In fact, the court itself questions whether the attitudes expressed in Cooley v. Dewey, 4 Pick. 93, 94 (1827), were representative of that era. If that case were not a reflection of the attitude at the time it was written and it surely is not representative of current views, it is difficult to understand why this reliance interest should control the outcome in this case. The stated reason for this result, the reliance of the Bar, is more than adequately protected by allowing the Bar to adhere to the old rule for trusts executed prior to the date of this decision, while applying the new rule to the person making a successful challenge.