Dissenting opinion
Klein, J.,dissenting. — Testator, who died in 1926, left his residuary estate of approximately $650,000 in trust, the net income to be paid in equal shares to his two daughters, Matilda Heyl Jackson and Kate Heyl Peace, for the period of their natural lives. Upon their deaths the income is payable to their issue, with further provisions not material to this discussion.
The will then provides, inter alia:
“Item — I direct that all payments of income to each and every of the beneficiaries hereinbefore named, shall *366be made to them directly,, without the power of anticipation or assignment by them and so that the same shall not be subject to any judgment, decree, attachment, execution, or other process of any court, but the same shall only become the property of the beneficiary when actually received by him or her and the trustees shall only be discharged of the same upon the own proper receipt of the beneficiary.”
On December 29, 1930, one of the daughters, Kate Heyl Peace, addressed a letter to the trustees in which she stated that she had been unable to find a house which was acceptable to her as a home and requested them to advance $35,000 for the purchase of a lot and the erection of a house thereon. In this letter she requested that her share of the income should be charged with interest at six percent on the total amount paid for the property, together with taxes, insurance, and repairs. She further agreed that if she should vacate the house these arrangements should continue “so that the income of this estate shall not suffer by reason of this investment”.
The trustees complied with her request and money was advanced for the purchase of the lot and the erection of the house. She moved into the house and the charges were made against her share of the income in accordance with her agreement. She remained in the house until September 1942, when she had a change of heart and moved out. On December 3,1942, she wrote to the trustees revoking the agreement and demanding that her share of the income be relieved from the charges for carrying the property.
The question presented to us is whether she can avail herself of the protection contained in the spendthrift provisions and saddle one half of the burden of carrying this unprofitable investment on her sister. The auditing judge held that she was within her rights. We do not agree with this conclusion.
*367We do not regard the purchase of the home for Kate Heyl Peace as a violation of the restrictions contained in the will. The transaction does not, in our opinion, constitute an anticipation. An anticipation, as we understand it, is any payment or transfer on account of distribution to a beneficiary, or to someone in his behalf, at any time before the date fixed for such distribution by the instrument creating the trust. The purchase of the house in the present case cannot be considered a distribution to the life tenant. It was merely an investment — and a proper one under the terms of the will — made at her request. Nor was the transaction an assignment in the sense usually contemplated by the creator of a trust. The contracting life tenant was no less entitled to her full share of the income from the estate as and when it became payable. All that was done in this case was to segregate a specific asset of the estate, acquired at the request of one of the life tenants, and to earmark the income-producing power of that asset to the exclusive credit or benefit of the life tenant who solicited the investment. The other income beneficiary might have been heard to object to the transaction as a preferential distribution. However, Mrs. Peace certainly cannot'disclaim it as an illegal anticipation or assignment.
But even if we assume that the arrangement made with the trustees was a breach of the restrictions contained in the will, we are firmly of the opinion that Kate Heyl Peace is estopped from evading the legal consequences of her agreement. The courts in this State have always been loath to permit a competent beneficiary to repudiate his voluntary act or agreement to the detriment of innocent persons, regardless of the fact that the beneficiary’s income was subject to. the protection of spendthrift provisions. Although our attention has not been directed to any reported case in which a beneficiary has attempted to unload a share of his burden on other income beneficiaries, the courts *368have consistently refused to permit the beneficiary to evade the consequences of his act or conduct at the expense of the trustee.
In King’s Estate, 147 Pa. 410 (1892), despite a prohibition against anticipation, the trustee was permitted to take credit for payments made to the cestui que trust on account of distribution of income before any income was actually received by the trustee. Justice Green, in the opinion of the Supreme Court, said at page 414:
“The cestui que trust had actually received the payments made in perfect good faith by the trustee, and she was as much in fault, in violating the clause against anticipation, as the trustee was in making the payments. She has, therefore, no equity to be heard against her own wrongdoing, and we regard her as estopped from saying she had no right to receive the money on account of the clause against anticipation. . . It would be strange, indeed, if she, having received it from the trustee in advance of the time when she could have compelled its payment, because it was not yet received by him, could be permitted to say she had no right to receive it, under the will, at the time when she did receive it, and thus assert her own wrong, not to prevent, but to perpetrate, a gross injustice. We will not permit it.”
In Thaw’s Estate, 252 Pa. 99 (1916), the trustee expended funds of a spendthrift trust estate for medical examinations to ascertain if the beneficiary’s mental condition was such as to warrant the trustee to pay the income directly to him. The beneficiary voluntarily submitted to the examination. The Supreme Court held that he was estopped from contesting the expenditures which he himself encouraged the trustee to make.
In Jones’ Estate, 199 Pa. 143 (1901), the cestui que trust of a spendthrift trust, in order to avoid prosecution for nonsupport of his wife, agreed to give her a *369portion of his income from the trust estate. The agreement provided that checks for the portion of the income payable to the wife should be drawn to the order of the cestui que trust, endorsed by him to the wife’s order, and then held by the trustee for delivery to the wife. The court dismissed the efforts of the beneficiary to collect this income a second time from the trustee. To the same effect, see Shuster’s Estate, 26 Dist. R. 232 (1917).
In Perkins’ Estate, 19 D. & C. 463, affirmed in 314 Pa. 49 (1934), an effort was made to surcharge a trustee for investing the funds of the trust estate at the request of the life tenant, whose income was subject to spendthrift provisions, for the purpose of erecting a home for the life tenant and for making other investments which proved to be improvident and which were in violation of the terms of the trust. Our former colleague, Judge Stearne, refused to surcharge the trustee and said (p. 466):
“It appeals to me as being most unfair and unjust to permit a person to induce the making of investments —however unwise — and then to permit him, or any person or persons claiming through or under him, to repudiate such investments and to benefit thereby.”
This language of Judge Stearne was adopted verbatim both by the court en banc and by the Supreme Court in affirming his decision.
The same situation existed in Miller’s Estate, 333 Pa. 116 (1939), in which the trustee made an improvident investment at the request of the beneficiary. Mr. Justice Stern, in refusing a request for surcharge, said (p. 118):
“It need scarcely be stated that such a claim is not only without sanction of law, but violates instinctive principles of morality and fair dealing. It apparently arises from appellee’s erroneous impression that, because the beneficiary of a spendthrift trust cannot terminate it (Harrison’s Estate, 322 Pa. 532), nor, by *370agreement with the trustee or otherwise, modify or ameliorate its restrictions, he is likewise excused from the legal consequences of requesting or acquiescing in the selection of investments to be made by the trustee. It is hornbook law, as expressed in Macfarlane’s Estate, 317 Pa. 377, 382, 383, that ‘A competent beneficiary who with full knowledge of the facts and of his rights expressly consents to or affirms an investment by the trustee cannot, in the absence of fraud, thereafter question its propriety.’ In this respect there is no difference between the beneficiary of a spendthrift trust and any other trust.”
Justice Stern stated, further, at page 119:
“In Griswold on ‘Spendthrift Trusts,’ section 305, it is stated: ‘Various questions may arise in the course of the administration of a spendthrift trust as to the effect of the consent of the beneficiary. May the beneficiary hold the trustee liable for an act or omission which was done at the beneficiary’s request or with his consent? . . . Where the beneficiary is an adult and sui juris, there would seem to be no reason why he should not be bound by his conduct here as much as in any other situation . . .’; and in section 307: ‘It is a rule of general application with respect to ordinary trusts that a beneficiary cannot hold the trustee liable for an act or omission as a breach of trust if the beneficiary consented to it. This principle is also generally held ,to be applicable to spendthrift trusts. Thus, if a trustee makes improper investments, or wrongfully disposes of a part of the trust property, or wrongfully delegates his authority, or commits other breaches of trust, the beneficiary may not hold him liable if he has given his consent to what was done.’ ”
If a beneficiary, who is sui juris, is estopped from repudiating, as between himself and his trustee, the legal consequences of an improvident and improper investment made by the trustee at his request, notwithstanding the existence of spendthrift provisions, how *371much stronger is the appeal to our consciences of a beneficiary whose income is in danger of being depleted by virtue of a transaction apparently made without her knowledge or consent? Trustees are chosen to administer spendthrift trusts for the express purpose of protecting the beneficiaries against their own folly and improvidence. They are paid for the responsibility they assume. No share of this responsibility should be shifted to an innocent beneficiary. Furthermore, we must not overlook the fact that the same spendthrift provisions, which are here relied upon to protect the life tenant who induced the making of the investment in question, were designed by the testator to give equal protection to the other life tenant. It would be a shocking state of affairs if Mrs. Peace were estopped from rescinding her agreement against the trustees, who were parties to it, but was free to unload half of the consequences on her sister, who was not a party to it. In our opinion, it would be more unfair and unjust to permit Kate Heyl Peace to repudiate the investment made at her request and to benefit by her repudiation at the expense of her sister, Matilda Heyl Jackson, than it would have been in Perkins’ Estate and Miller’s Estate, supra, to permit the beneficiaries to repudiate the legal consequences of their acts at the expense of the trustees, to whom the testators looked to protect the beneficiaries against their own improvidence.
The trustees in the present case acted in good faith within the authority conferred by the will and procured for Mrs. Peace a home which she wanted and said that she needed, and which was apparently within her financial means. It would clearly be a miscarriage of justice to permit her now to repudiate her voluntary act at the expense of her sister. The agreement made by her with the trustees must therefore be enforced.
We might add that the original agreement provided for the payment of interest at six percent on the funds of the estate invested in this property. The record dis*372closes that subsequently the rate of interest was reduced to five percent. We see no reason why the trustee could not, in its discretion, grant further relief to Mrs. Peace by reducing the rate of interest to four percent, which is approximately the current rate of income earned by trust estates in Pennsylvania.
I would therefore sustain the exceptions.
Sinkler and Ladner, JJ., join in this dissent.