Dissenting Opinion by
Me. Justice Baebieri:Most respectfully I must disagree with the result reached by the majority. By this result an estate such as that of the decedent in this case, with assets of $2,-519,657.35 at the time of death, and a distributable net of $1,801,629.21 at the audit, could be rendered almost fully depleted, or even gratuitously insolvent, by the imposition of additional taxes based upon property which, as in this case, is not part of the estate. Under the majority’s holding, the balance in this case of $1,-801,692.21 (to be further reduced by expenses and costs),1 would be hit by additional death taxes of at least $1,244,000.00. This means that, at best, out of an estate of $2,500,000.00, the children of this decedent would share roughly only $500,000.00.2 The majority reaches its decision to allow this result, contrary to the conclusions of the trial judge,3 on the basis that this is what decedent’s father intended when he established the trust in 1932, although admittedly he did this solely for the purpose of avoiding the kind of confiscatory taxation that the majority here approves.4
*76It is perfectly obvious that the provisions for settlor’s children prior to their ages of 32 years are substantively meaningless to them prior to the death of their mother (who yet lives). This is so because the settlor specifically provided that his childrens’ shares would be determined upon the death of his wife, decedent’s mother, at which time the assets would be allocated in equal “parts or shares, one such equal part or share to be held for my daughter, Mary Caven Pew [the decedent, Mary Pew Benson], one such equal part or share. . . .” [for each of his other three children]. Since the trust was established when decedent was only 15 years of age, and her brothers and sisters were 14, 9 and 4 years of age, decedent made clear and familiar provision for them should their mother die during their early years. If she did so die a carefully drawn program was spelled out so that the children would receive their shares in instalments at their ages of 24, 28 and 32. But they would get nothing out of the trust at any of these ages if their mother still lived. The settlor’s wife did survive her daughter, decedent herein, who was 47 when she died on November 28, 1964. Nowhere in the trust instrument is there any statement or expressed intent that any of settlor’s children would have any interest after 32 or at any time before their mother died. I am convinced that the lower court.properly concluded that, under all of the circumstances, it could not be construed that the settlor in this case intended a technical vesting in his children that would be worthless to them.
The majority quotes as the basis for its determination of settlor’s intent from Pew Trust, 411 Pa. 96, 107, 191 A. 2d 399, 405 (1963), as follows: “In order to ascertain the actual intent of the settlor or testator, the Court must place itself in his armchair and consider not only the language and scheme of the instru*77ment but also the facts and circumstances with which he was surrounded; and these surrounding facts and circumstances include the condition of his family, the natural objects of his bounty and the amount and character of his property. . . .”
I cannot agree with the majority’s view that the settlor, “in his armchair” in 1932, when signing a document the purpose of which was to avoid decimation of his assets by Federal taxes on estates, could possibly have had the “actual intent” to provide the devastating taxation against his daughter’s estate that the majority thinks he intended.
I dissent and would affirm upon the opinions of the lower court.
I have not attempted to compute the actual effect of the new federal and state death tax assessments, but it is clear that insolvency even of a substantial estate could result from a ruling like that of the majority in this case.
Some testimony was taken before the court below.
One of the incidents to such confiscatory taxation is the required sale of Sun Oil Company stock with a reduction in family control which the settlor sought to avoid.