dissenting. — I do not concur in the opinion of the majority sustaining exceptions filed to the original adjudication.
The consideration relevant to the present disposition are:
The will of Mr. Wood gave the residue of his estate to Mrs. Wood, in trust to pay the net income to herself as long as she might live.
Upon the death of Mrs. Wood without issue, the principal was to be held in trust to establish on “Red Oaks” an institution for the benefit of a university.
The first codicil, making Mrs.-Wood sole executor and trustee, empowered her “to disregard and set aside as if non-existent the trust in my said Will created for the care or disposal or care of the said Red Oaks property, and to sell the same or dispose of it in any way or form she may see fit to do without accountability to the Trustees of the University of Pennsylvania or to any other person or persons.”
The third codicil, dated May 17,1929, contains the provision which raises the present doubt: “In the event of Mrs. Wood’s selling Red Oaks property and thus breaking the trust of the will my purpose is that she shall have the proceeds of the sale of Red Oaks (and some other real estate and shares of stock) the residue to my children and their issue, taking by stirpes”.
On October 19, 1933, Mrs. Wood did sell Red Oaks, pursuant to the power vested in her by the first codicil.
*99It is conceded that, upon her sale of “Red Oaks”, Mrs. Wood became absolutely entitled to the proceeds and the specified real estate and stock.
The uncertain question is as to the effect of the words in the third codicil, “the residue to my children and their issue”.
What residue? And when to be ascertained?
The construction approved by the majority is that the intention of the testator was that if Mrs. Wood, by the sale of “Red Oaks”, set aside the trust for the benefit of the university, thereby becoming entitled to the proceeds and the other things, she thereby also set aside the trust first expressed of the net income of the residue to her for life.
It does not seem to me that such a construction is correct or in accordance with the principles of the cases referred to in the majority opinion.
The manifest first purpose of the testator was to give nothing to his children, and to his wife the income from the whole estate during her life. Nothing in the codicils diminishes the first devise.
If Mrs. Wood broke the trust regarding “Red Oaks”, she was to be entitled to its proceeds and the other specified property absolutely, and would thereby be gainer. Also, testator’s children who otherwise would get nothing would be entitled to all the residue after the widow’s death.
It does not seem reasonable to conclude that by selling “Red Oaks” she broke the dominant first expressed provision of the net income of the whole estate during her life, and from now on will be entitled to nothing except what she receives absolutely under the third codicil.
I would dismiss all the exceptions.