Dissenting opinion
Klein, J.,October 27, 1948. — I agree with Judge Hunter that the Act of June 1, 1945, P. L. 1337, 68 *272PS §581 et seq., is retroactive and I accordingly join in his concurring opinion to this extent. I am not, however, in agreement with the conclusion that the act is unconstitutional as to spendthrift interests created prior to the passage of the act.
There is nothing sacrosanct about a spendthrift trust. Testator has no interest in the property after his death, which is subject to constitutional protection. Whatever rights he had passed under his will to the remainderman, who is a party to these proceedings.
In Pennsylvania the income of a spendthrift trust can be attached by the beneficiary’s wife for support: Moorehead’s Estate, 289 Pa. 542 (1927). And in New York a statute permitting creditors of a beneficiary of a spendthrift trust to attach his interest to the extent of 10 percent of his income was held to be constitutional: Brearley School v. Ward, 201 N. Y. 358 (1911).
In discussing this case Griswold, in his scholarly book “Spendthrift Trusts” (2nded.) said at page 483:
“There seems to be little ground upon which the correctness of the decision in Brearley School v. Ward can be doubted. A statute restraining the alienation of the interest of the beneficiary of a trust is closely analogous to an exemption law, and it has been decided repeatedly that there is no vested right in statutory privileges and exemptions. One of the points which has been urged against the constitutionality of a statute affecting the alienation of prior created spendthrift trusts is that the obligation of some sort of a contract between the settlor and the state or the trustee or someone else may be impaired. This argument, of course, will not stand analysis- There is no contract; it certainly cannot be said that the enactment of legislation by a state through its legislature constitutes an offer for a contract which is accepted by the creation of a trust.”
*273And, further, at page 487, in discussing another New York statute which authorized the voluntary alienation by the beneficiary of his interest in a spendthrift trust, Griswold said:
“Why such a statute should be unconstitutional seems impossible to understand. Certainly the beneficiary is injured in no way; nor does he object. The trustee is not deprived of any interest by the assignment of the beneficiary. And the settlor cannot be invalidly deprived of property of which he is no longer owner, especially in the usual case where he is dead when the issue arises.”
The statute under consideration in the present case does not attempt to enable a beneficiary to alienate his interest to a stranger or to a creditor. It merely confers a right upon the beneficiary to give up prospective income in favor of a remainderman. Each time a trustee wishes to pay accrued income, the beneficiary, even without the benefit of a statute, can effectively refuse to accept the payment. He cannot be compelled to accept the income. The statute merely enables the beneficiary to refuse income once and for all time, without the necessity of repeating such refusal every time income is payable to him.
In my opinion, the majority are concerned too much with the so-called rights of dead testator, and unmindful of the rights of his living beneficiaries. With the advent of Federal statutes levying heavy estate and income taxes, a new burden has been placed upon beneficiaries of trust estates which, in many cases, was not contemplated by testator when he made his will, nor by the beneficiary when he originally accepted the benefits thereunder.
The present statute is primarily an effort on the part of the legislature of our State to enable our citizens to take advantage of provisions in the Federal tax laws *274which would inure to their benefit. I know of no valid reason why our legislature cannot give our citizens this privilege.
I would therefore sustain the exceptions.