Borsch Estate , 362 Pa. 581 ( 1949 )

The Act of 1945, here in question, was enacted for the sole purpose of securing to citizens of Pennsylvania certain advantages afforded by the Federal tax laws, andespecially in the case of then existing powers and interests. Accordingly the Act expressly stated that it was to apply to releases "heretofore and hereafter delivered". I agree, therefore, with the majority opinion that the Act is retroactive in its scope. I cannot agree, however, that that makes it unconstitutional as far as spendthrift trusts are concerned. It could be unconstitutional in that regard only if it impaired someone's property right. Whose property right does it impair? The majority opinion says that it infringes upon the right of a donor or testator to have his property disposed of exactly as he directed; reliance is placed upon the ancient maxim: "Cujus est dare, ejus est disponere," — the bestower of a gift has the right to regulate its disposal. With the validity of that principle there certainly can be no quarrel, for the rights of an owner of property undoubtedly include the right to give it to another under such conditions and subject to such restrictions, not incompatible with the law, as he may see fit to impose. But the Act of 1945 does not impair that right which, indeed, the testator hereactually exercised when he made his will and provided therein that his bequests to the life tenants should be subject to spendthrift trust provisions. By reason of that right on his part the life tenants could take and enjoy his bequests to them only "cum onere," that is, subject to those spendthrift provisions. But the testator's conceded right thus to dispose of his property as he saw fit is not incompatible with, and certainly does not destroy, the right of a beneficiary torefuse the gift altogether. That a beneficiary may renounce his legacy, and not be compelled to accept it against his will, was the very thing this Court expressly decided in Bute's Estate,355 Pa. 170, 49 A.2d 339, and, indeed, would seem so obvious as to preclude the need of discussion.

What seems to me to be the confusion in the majority opinion is its failure to distinguish between the right of a life tenant under such a spendthrift trust to accept and enjoy the bequest free from the spendthrift trust provisions, and his right to renounce or disclaim the gift altogether. The cases cited and relied upon in the majority opinion — Holdship v.Patterson, 7 Watts 547; Harrison's Estate, 322 Pa. 532,185 A. 766; Riverside Trust Co. v. Twitchell, 342 Pa. 558,20 A.2d 768; Heyl Estate, 352 Pa. 407, 43 A.2d 130 — all dealt with the former, not the latter right; they were cases in which the life tenant was attempting to retain the benefits of the bequest in some form or other but freed, wholly or in part, of the spendthrift trust provisions. In the present instance the life tenant is making a complete surrender of the gift, and I know of no power of a court or any other tribunal that can compel her to accept it.

The Act provides that the release of the interest must be in favor of the remainderman, and the interest of the remainderman in the trust property is accordingly accelerated by the elimination of the life tenant's interest. The situation is wholly analogous to that in which a widow who is bequeathed a life estate by her husband elects to take against his will, in which event the interest of the remainderman is automatically accelerated with the same force and effect as if the widow life tenant had died: Kern's Estate, 296 Pa. 348, 145 A. 824;Schmick Estate, 349 Pa. 65, 36 A.2d 305.

I would hold that the trust was terminated by reason of the life tenant's release to her son of all her right, title and interest in and to her father's estate.

Mr. Chief Justice MAXEY and Mr. Justice LINN join in this dissent.