(dissenting) : I do not agree with the majority of the Court. Since, in my mind, the proper construction of Sections G and H of the trust instrument imposes conditions upon any remainder to the issue of Eve (whether implied or not) of such a nature that under the factual development any ultimate gift of corpus to her issue has now failed, I think it unnecessary for us to decide whether the clause of Section H(3) emphasized in the first part of the majority opinion requires the conclusion that an implied remainder to Eve’s issue was intended. In order to decide this appeal, it may be assumed that it was so intended without specifically so deciding.
As the majority of the Court has pointed out, the dispositive provisions of the trust instrument are divided into two parts, conditioned upon the remarriage or non-remarriage of Elizabeth following her divorce from Hallock. Since, in fact, Elizabeth did remarry, we are concerned with the meaning of those provisions intended to take effect upon the happening of that contingency. Those provisions are contained in Sections G and H of the instrument. In my opinion, the provisions of Sections G and H contain conditions attached to any ultimate gift of corpus to Eve’s issue which are now impossible of fulfillment, with the result that at the present time Hallock and Eve, as the only persons having any possible interest *534in the trust, may, under the rule of Weymouth v. Delaware Trust Co., 29 Del.Ch. 1, 45 A.2d 427, unite to terminate it.
Sections G and H constitute a single paragraph of the instrument and provide for the disposition of income and corpus upon the event of the remarriage of Elizabeth following her divorce. By Section G the income support of Elizabeth for her life is reduced from $36,000 per year to $12,000; the income support of $12,000 per year for the life of Eve is continued; and the balance of the income is directed to be paid to Hallock “during his life” and upon his death to Eve “for her life”, and in case of her death to her issue “until the death of the said Elizabeth”.
Certain obvious results flow from Section G: Elizabeth is a life beneficiary of income; Eve is a life beneficiary of income; Hallock is a life beneficiary of income; and finally Eve’s issue are income beneficiaries only upon the condition that both Eve and Hallock predecease Elizabeth. This final conclusion is forced by the provision that Eve’s issue shall take the balance of income only until the death of Elizabeth, and since Hallock had reserved the entire balance for his life it necessarily follows that he must predecease Elizabeth in order for Eve’s issue to take any of the residual income. As far, therefore, as the provisions of Section G are concerned, any gift to the issue of Eve is conditioned upon both Hallock and Eve having predeceased Elizabeth.
Section H(l) directs that if Eve predeceases Elizabeth and leaves issue the $12,000 annual payment to Elizabeth shall be continued, and that the $12,000 annual payment for Eve’s -benefit shall be paid to Eve’s issue until the death of Elizabeth, and that the remainder of income shall be paid to Hallock, if he is living, and if he be dead, or if he dies before Elizabeth, then the remainder shall be paid to Eve’s issue.
Under the provisions of Section H(l) all income benefits from the trust end with the death of Elizabeth. Thus, by Section H(l), Eve’s issue receives income only until the death of Elizabeth, which necessitates the conclusion that Section H(l) contemplated the termination of the trust upon the death of Elizabeth if Eve had prede*535ceased her but Hallock survived. This is so whether or not Eve died with or without leaving issue surviving.
Section H(2) directs that the corpus of the trust be transferred to the issue of Eve upon certain conditions. Expressly stated is the condition that Eve shall have predeceased Elizabeth and left lawful issue, in which event, upon the death of Elizabeth, the trustee is directed to pay over the corpus to Eve’s issue. Section H(2) contains no provision for the postponement of the distribution of the corpus upon the death of Elizabeth. The direction to the trustee is mandatory. This being so, it is apparent that there is a further implied condition attached to the gift of the corpus to the issue of Eve upon the death of Elizabeth, Eve having predeceased her. This implied condition is that Hallock, too, must have predeceased Elizabeth.
The conclusion that such a condition necessarily must be implicit in Section H(2) is forced by the prior reservation by Hallock in Section G and Section H (1) of all of the excess income from the trust not required to meet the income payments to Elizabeth and Eve’s issue, if she has predeceased Elizabeth, both of which specifically end upon the death of Elizabeth. Unless, therefore, the condition of Hal-lock’s death prior to that of Elizabeth is implicit in Section H(2) the result would be that upon the death of Elizabeth the issue of Eve, while entitled to the corpus, would have their enjoyment of it postponed during the life of Hallock, and in the interim would receive nothing whatsoever for their support. Such a result would be wholly unreasonable, for what possible motive would lead a grandfather to provide support for his grandchildren until the death of their grandmother and then strip them of any support whatsoever as long as he himself lived.
Section H(2), therefore, must be construed as contemplating the termination of the trust upon the death of Elizabeth, Eve having predeceased her. If Hallock survives Elizabeth, the gift to Eve’s issue fails and Hallock takes the corpus by way of a resulting trust. Of course, however, under the facts Eve did not predecease Elizabeth so the gift to her issue under Section H(2) has failed in any event.
*536Section H(3) contains the dispositive provisions with which we are concerned specifically, for it is the only part of Sections G and H which provide for the contingency of Eve surviving Elizabeth. It must be remembered that Section H(l), (2) and (3) is in fact one sentence of a single paragraph made up of both Section H and Section G. As such, sub-paragraphs (1), (2) and (3) must be read together and in harmony with the general dispositive scheme disclosed by the whole of Sections G and H. As has been pointed out, Section G and Section H(l), (2) clearly contemplate the termination of the trust upon the death of Elizabeth, if Eve has predeceased her. Upon that event, the corpus is given outright to Eve’s issue by Section H(2), if Hallock is also dead at that time; but if he is living, then the gift to Eve’s issue by Section H(2) fails forever.
Section H(3) was apparently intended to take care of the precise situation which has occurred, vis., the survival of Elizabeth by Eve. The manner of doing so was to provide specifically for the contingency of the survival of Eve. However, it seems apparent that this provision implicitly incorporated the other condition attached to the gift of corpus to the issue of Eve, vis., that Hallock must predecease Elizabeth.
Section H(3) opens with the clause “if there be no such lawful issue then surviving”. This is an obvious reference to the time of termination set up by the preceding Section H(2), vis., the death of Elizabeth, having been predeceased by Hallock and Eve. The next succeeding clause then proceeds to eliminate the death of Eve prior to that of Elizabeth as a condition precedent to the vesting of the ultimate gift of corpus, but it goes no further than that. Untouched is the condition that Hallock must have predeceased Elizabeth for the gift of corpus to Eve’s issue ultimately to take effect. If this be the correct construction of Section H(3) then obviously the conditions laid down for the vesting of the gift of corpus to the issue of Eve cannot now be fulfilled because Hallock has survived Elizabeth, and Eve and Hallock are now the only persons having any interest in the trust —Eve a life interest in income, and Hallock a life interest in income and a reversionary interest in the corpus.
*537There is another provision in Section H(3) which strengthens the construction just set forth. The provision for the disposition of corpus in default of surviving issue of Eve directs the transfer of the corpus to those persons “as are entitled” to Hallock’s residuary estate, or to such persons “as may be” his next of kin. The use of this language clearly indicates that it was contemplated that Hallock would be dead at the two alternative times for the transfer of the corpus. The first of these alteratives is the death of Elizabeth, having been predeceased by both Hallock and Eve, (the condition of Section H(2)), and the second of these is the death of Eve, having survived Elizabeth. What justification can there be for distorting the paragraph into requiring the death of Hallock prior to Elizabeth as to one of the alternatives, and not as to the second, particularly in view of the method of draftsmanship which on its face does nothing except to eliminate the death of Eve prior to Elizabeth as one of the conditions ?
This construction of Section H makes it a consistent whole without omissions. It results in a consistent dispositive scheme for both income and corpus in the event of the remarriage of Elizabeth following her divorce from Hallock. If the only provisions of the instrument were those of Sections G and H there could be no doubt but that this is the proper meaning. But it is argued that Sections A through F, conditoned upon the non-remarriage of Elizabeth, compel a different result because of the supposed necessity to harmonize not only Sections G and H with themselves, but with Sections A through F as well. The argument is that the dispositive provisions conditioned upon remarriage or non-remarriage must parallel each other.
Generally speaking, it is true that the dispositive provisions conditioned upon the non-remarriage of Elizabeth parallel the comparable provisions conditioned upon the remarriage of Elizabeth, until the contingency of Eve surviving Elizabeth is reached. In the event of the remarriage of Elizabeth these provisions are found in Section H(3) ; in the event of the non-remarriage of Elizabeth they are found in Section F.
Section F contains one material and important difference from Section H(3). It provides, in the event Eve shall have predeceased *538Elizabeth without leaving issue surviving, or if she shall survive Elizabeth but die without leaving lawful issue surviving, that then the corpus shall be transferred to Hallock “if he be then living”, or if he is dead to his issue, or next of kin in default of issue. No such language appears in Section H(3). It thus appears that Section F contains a provision clearly contemplating the possibility that Hallock might survive Elizabeth, since express provision is made for a transfer to him, if living at the death of Eve, she having survived Elizabeth. The same is not true, however, with respect to Section H(3).
In view of this significant difference in language, it is to be asked how an argument of parallelism can justify writing into one the conditions of the other. Indeed, it might be suggested that the argument is double-edged. It could be urged to justify construing Section F to be parallel with Section H(3), particularly since that construction would be of the most benefit to Hallock, who at the time this agreement was prepared was not consulted about its terms, was denied access to anyone other than his mother, and whose sole act in connection with it was to sign it as an accomplished fact. His sole intention, if he can be said to have formed any intention, was to provide for the lifetime support of his estranged wife and two-year old daughter.
It is said that to malee the gift of corpus to Eve’s issue dependent upon the remarriage, or non-remarriage, of Elizabeth is unreasonable and capricious. This may be the fact, but is unreasonableness, or even capriciousness, in dispositive provisions of an inter vivos instrument sufficient ground for rewriting it to make it accord with the views of the Court as to what would have been a more reasonable dispositive scheme? As long as the provisions themselves do not run afoul of a prohibition of law or public policy, a settlor may be as capricious as his fancy or whim dictates. There can be no justification for a court, while purporting through construction to ascertain the meaning, in effect to rewrite it so as to make it, in its opinion, more reasonable and logical. What to the Court will appear reasonable might, and indeed probably would, appear wholly unreasonable to the settlor. Such action by the Court — that is, writing into a subsequent provision conditions not appearing therein because they appear in a prior provi*539sion conditioned upon an entirely different circumstance, is to speculate as to what was intended and is to incorporate into the rules of construction an uncertainty not formerly there.
I think the judgment below should have been reversed.