Bolger, J.,
The question is whether the auditing judge erred in refusing the demand of the remaining trustee and of Mrs. Jackson, the co-beneficiary of the spendthrift trust, to authorize the trustee to deduct from Mrs. Peace’s income items of taxes, interest, etc., allegedly due under Mrs. Peace’s agreement of 1930, and which have accrued since her repudiation of the agreement on December 3, 1942, on the ground that the 1930 transaction was revocable at will. Mrs. Peace does not object to sharing the loss of income.
Additional salient facts not appearing in the adjudication are that both life tenants of this trust are competent adult daughters of testator; and that although Mrs. Jackson at the audit of this account insisted that she has always disapproved the transaction the corporate trustee denied her assertion. It further appears that this investment was set forth in a prior account which was audited by this court on February 5, 1936, of which audit Mrs. Jackson received notice and she [359] has received and accepted the income from the investment for 12 years. The prior account was adjudicated May 14,1936, later reopened and readjudicated March 27, 1937, and appeal taken to the Supreme Court: Heyl’s Estate, 331 Pa. 202. It is repeated for the purpose of emphasis that both life tenants have expressly disclaimed any attempt to surcharge the trustee for loss on this investment.
Spendthrift trusts have long been the favorite of the law. In Riverside Trust Co. v. Twitchell et al., 342 Pa. 558, 561, Justice Drew quoted from Morgan’s Estate (No. 1), 223 Pa. 228, 230:
“The law rests its protection of what is known as a spendthrift trust fundamentally on the principle of cujus est dare, ejus est disponere. It allows the donor to condition his bounty as suits, himself, so long as he violates no law in so doing. When a trust of this kind has been created, the law holds that the donor has an individual right of property in the execution of the trust; and to deprive him of it would be a fraud on his generosity. For the law to appropriate a gift to a person not intended would be an invasion of the donor’s private dominion: Holdship v. Patterson, 7 Watts, 547.”
In Harrison’s Estate, 322 Pa. 532, it is stated (p. 534):
“The recognition of a testator’s right to protect his heirs from a presumed incapacity to manage inheritances is ... a definite policy of the common law. It can only be abrogated, if at all, by nothing less than express, definite and positive enactment.” See 2 Hunter’s Pennsylvania Orphans’ Court Commonplace Book, pp. 1282, 1283, para. 5(r) and (s).
We take it, therefore, that any attempt to vary the purposes of the trust or to divert the funds, principal or income, to other than the declared purposes set forth in the will must be most steadfastly resisted. The [360] primary consideration is the estate of the testator; the interests of the beneficiary are secondary: Siegwarth’s Estate, 226 Pa. 591, 594.
The extent to which the law will protect this fundamental interest of the testator depends upon the phraseology of the particular instrument: Keeler’s Estate, 334 Pa. 225. The terms of the instant will are very strict, not only as they inhibit the anticipation of or assignment of income or its subjection to any judgment, decree, attachment execution, or other process, but it is required that “all payments of income to each and every of the beneficiaries herein named shall be made to them directly” and that “the same shall only become and be 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”. Practically identical language was employed in Hays’ Estate, 201 Pa. 391, 396, and Nixon’s Estate, 101 Pa. Superior Ct. 152 (aff., 306 Pa. 261). In the Hays case the court observed:
“The principal of the fund was not hers and by the plain language of the will, the income could only become hers when it was paid by the trustee into her own hands, and her receipt was given therefor. The instrument creating the trust which is the law of the case, shields and protects the fund from the time it is produced until it is delivered to and accepted by the beneficiary. . . . While it is his [trustee’s] duty to make the corpus of the estate productive, yet the obligations of the trust also require him to pay it to the cestui que trust. This is the consummation of his duties, and until that act is performed, he has not executed the trust.”
In the Nixon case, the court refused to award accrued income to the estate of a deceased beneficiary because it was contrary to the provision “be payable to her only”; the quoted phrase was literally construed.
[361] Our first problem, therefore, is whether Mrs. Peace’s contract violates testator’s property rights. Mrs. Jackson maintains that the agreement of 1930 “is nothing more than a partial receipt for her benefit” and that payment is being “actually received” by her in connection with a rental contract and, therefore, it does not violate the terms of the trust. She also contends that Mrs. Peace is estopped from asserting the terms of the trust in defense of her own wrong.
We are definitely satisfied that the engagement of Mrs. Peace breaches the provisions of the trust and cannot be enforced. It offends all three provisions previously mentioned. To hold that it is not an assignment is to ignore the presence of the word “anticipation”. The interdictions forbid any distribution of income before it ,is actually earned and placed in her hands. Further, any decree or adjudication this court might enter charging the share with any sum as a result of this contract would be within the clause exempting the income from any judgment, decree, attachment execution, or other process of any court. Finally, we cannot subscribe to the suggestion that the 1930 letter was a receipt for money “actually received” by Mrs. Peace. - Mrs. Jackson’s thought patently would require us to hold that the trustees can now pay out Mrs. Peace’s income for which she receipted 14 years ago, and continue to do so hereafter. We cannot accept this view. Mrs. Peace is, therefore, clearly within her rights in revoking her contract: Keeler’s Estate, supra, where it was held that contracts of beneficiaries of spendthrift trusts that violate the provisions of the trust are revocable at will and are binding upon the cestui que trust only so long as he permits the trustee to honor them.
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Bolger, J.,
The question is whether the auditing judge erred in refusing the demand of the remaining trustee and of Mrs. Jackson, the co-beneficiary of the spendthrift trust, to authorize the trustee to deduct from Mrs. Peace’s income items of taxes, interest, etc., allegedly due under Mrs. Peace’s agreement of 1930, and which have accrued since her repudiation of the agreement on December 3, 1942, on the ground that the 1930 transaction was revocable at will. Mrs. Peace does not object to sharing the loss of income.
Additional salient facts not appearing in the adjudication are that both life tenants of this trust are competent adult daughters of testator; and that although Mrs. Jackson at the audit of this account insisted that she has always disapproved the transaction the corporate trustee denied her assertion. It further appears that this investment was set forth in a prior account which was audited by this court on February 5, 1936, of which audit Mrs. Jackson received notice and she [359] has received and accepted the income from the investment for 12 years. The prior account was adjudicated May 14,1936, later reopened and readjudicated March 27, 1937, and appeal taken to the Supreme Court: Heyl’s Estate, 331 Pa. 202. It is repeated for the purpose of emphasis that both life tenants have expressly disclaimed any attempt to surcharge the trustee for loss on this investment.
Spendthrift trusts have long been the favorite of the law. In Riverside Trust Co. v. Twitchell et al., 342 Pa. 558, 561, Justice Drew quoted from Morgan’s Estate (No. 1), 223 Pa. 228, 230:
“The law rests its protection of what is known as a spendthrift trust fundamentally on the principle of cujus est dare, ejus est disponere. It allows the donor to condition his bounty as suits, himself, so long as he violates no law in so doing. When a trust of this kind has been created, the law holds that the donor has an individual right of property in the execution of the trust; and to deprive him of it would be a fraud on his generosity. For the law to appropriate a gift to a person not intended would be an invasion of the donor’s private dominion: Holdship v. Patterson, 7 Watts, 547.”
In Harrison’s Estate, 322 Pa. 532, it is stated (p. 534):
“The recognition of a testator’s right to protect his heirs from a presumed incapacity to manage inheritances is ... a definite policy of the common law. It can only be abrogated, if at all, by nothing less than express, definite and positive enactment.” See 2 Hunter’s Pennsylvania Orphans’ Court Commonplace Book, pp. 1282, 1283, para. 5(r) and (s).
We take it, therefore, that any attempt to vary the purposes of the trust or to divert the funds, principal or income, to other than the declared purposes set forth in the will must be most steadfastly resisted. The [360] primary consideration is the estate of the testator; the interests of the beneficiary are secondary: Siegwarth’s Estate, 226 Pa. 591, 594.
The extent to which the law will protect this fundamental interest of the testator depends upon the phraseology of the particular instrument: Keeler’s Estate, 334 Pa. 225. The terms of the instant will are very strict, not only as they inhibit the anticipation of or assignment of income or its subjection to any judgment, decree, attachment execution, or other process, but it is required that “all payments of income to each and every of the beneficiaries herein named shall be made to them directly” and that “the same shall only become and be 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”. Practically identical language was employed in Hays’ Estate, 201 Pa. 391, 396, and Nixon’s Estate, 101 Pa. Superior Ct. 152 (aff., 306 Pa. 261). In the Hays case the court observed:
“The principal of the fund was not hers and by the plain language of the will, the income could only become hers when it was paid by the trustee into her own hands, and her receipt was given therefor. The instrument creating the trust which is the law of the case, shields and protects the fund from the time it is produced until it is delivered to and accepted by the beneficiary. . . . While it is his [trustee’s] duty to make the corpus of the estate productive, yet the obligations of the trust also require him to pay it to the cestui que trust. This is the consummation of his duties, and until that act is performed, he has not executed the trust.”
In the Nixon case, the court refused to award accrued income to the estate of a deceased beneficiary because it was contrary to the provision “be payable to her only”; the quoted phrase was literally construed.
[361] Our first problem, therefore, is whether Mrs. Peace’s contract violates testator’s property rights. Mrs. Jackson maintains that the agreement of 1930 “is nothing more than a partial receipt for her benefit” and that payment is being “actually received” by her in connection with a rental contract and, therefore, it does not violate the terms of the trust. She also contends that Mrs. Peace is estopped from asserting the terms of the trust in defense of her own wrong.
We are definitely satisfied that the engagement of Mrs. Peace breaches the provisions of the trust and cannot be enforced. It offends all three provisions previously mentioned. To hold that it is not an assignment is to ignore the presence of the word “anticipation”. The interdictions forbid any distribution of income before it ,is actually earned and placed in her hands. Further, any decree or adjudication this court might enter charging the share with any sum as a result of this contract would be within the clause exempting the income from any judgment, decree, attachment execution, or other process of any court. Finally, we cannot subscribe to the suggestion that the 1930 letter was a receipt for money “actually received” by Mrs. Peace. - Mrs. Jackson’s thought patently would require us to hold that the trustees can now pay out Mrs. Peace’s income for which she receipted 14 years ago, and continue to do so hereafter. We cannot accept this view. Mrs. Peace is, therefore, clearly within her rights in revoking her contract: Keeler’s Estate, supra, where it was held that contracts of beneficiaries of spendthrift trusts that violate the provisions of the trust are revocable at will and are binding upon the cestui que trust only so long as he permits the trustee to honor them.
Pennsylvania appears to be the only State among those which recognize the doctrine of spendthrift trusts that permits any departure, except by statutory enact[362] ment, from the otherwise rigid safeguards which the law throws around this type of trust. That departure is embodied in the line of cases including Miller’s Estate, 333 Pa. 116, Thaw’s Estate, 252 Pa. 99, King’s Estate, 147 Pa. 410, and other cases cited in the adjudication and in the dissenting opinion. They all employ the equitable doctrine of estoppel and hold that where an adult competent beneficiary of a spendthrift trust, with full knowledge of the facts, consents to or affirms an investment made in violation of the terms of the trust the trustee cannot be surcharged at the instance of such beneficiary for any resulting loss of income. The clear objective of these cases is to protect innocent trustees personally from surcharge. We are now asked to extend this doctrine in favor of a co-beneficiary. Before proceeding to a discussion of this problem, which is the more difficult one, we momentarily advert to the question of the contract.
The 1930 contract is dual in character. It is an investment which includes a rental contract. Since none of the parties, including the parties litigant, has questioned the prudence of the investment, how does this affect this rental contract in the light of its repudiation? Were it not for the possibility of extending the rule of estoppel, there is no doubt that the obligation would be effectually canceled. In our opinion in the light of present conditions and of the law of the decisions cited, it constitutes no more than a guaranty or an agreement of indemnity protecting the trustee against surcharge. Consequently, there having been no request for our award of surcharge, Mrs. Peace’s obligation on her contract comes to an end. Indeed it is an open question whether Mrs. Peace’s interest would have been liable over to the trustee had the latter been surcharged at Mrs. Jackson’s instance, because the loss claimed by her would be her loss only, whereas in the cited cases the loss sought to be recouped was that of [363] the complaisant beneficiary, the one who induced the transaction.
We refuse to extend the estoppel as requested for three reasons: First, because the rule of law protecting testator’s property rights in the trust shuts off consideration of the equities between the co-beneficiaries — the will “is the law of the ease”. Whenever the fight of a party is established by law, equity does not have power to change it: Abrahams, Admx., v. Wilson et al., 134 Pa. Superior Ct. 297; Albright v. Albright, 228 Pa. 552. Second, Mrs. Jackson, the co-beneficiary, is guilty of acquiescence; and, third, even though she were entirely innocent, there is authority contrary to her contention.
Treating the latter two reasons in their inverse order, we -affirm the analogy drawn by the auditing judge between this case and Overman’s Appeal, 88 Pa. 276. There the beneficiary of a spendthrift trust was also the trustee and as such negligently administered the estate to its loss. However, the court refused the request to apply his share of income to cover the loss. While it is true that the action of the trustee-cestui que trust in the cited ease was involuntary and there was no contract involved, nevertheless the loss in the instant case was just as involuntarily incurred and the degree of liability to repay was at least equal to that of the trustee-cestui que trust. Therefore, the auditing judge’s conclusion properly follows that, if Overman’s Estate, supra, forbids application of the cestui que trust’s income for something he did as trustee, all the more in this case should Mrs. Peace be not estopped because of something she did purely as cestui que trust.
What Mrs. Jackson and the trustee seek is specific performance of the 1930 contract. Such equitable relief calls for the exercise of the court’s grace rather than for the application of any principle of law: Blue [364] Ridge Metal Manufacturing Co. v. Northern Pennsylvania Power Co., 327 Pa. 424. In reviewing-the investment and Mrs. Peace’s promise to pay, there is grave danger in exercising hindsight rather than viewing the affair in the light of the then-existing conditions. It seems now to have been a clear violation of the trust and Mrs. Peace is bitterly condemned for changing her mind. While not entirely clear of doubt, nevertheless there are circumstances present in this record from which a finding could readily have been made, had it been required, that the investment was a proper one. The codicil of June 3, 1919, authorizes investment in real estate: “. . . and now give my executors and trustees power to invest in mortgages and real estate . . .” Mrs. Peace’s share of income was adequate. The trustees also obtained the agreement of Mrs. Peace’s son, Edward C. Peace, a remainderman, to take the property in distribution at a fair market value. Furthermore, the contract was kept faithfully for more than 12 years, and according to the letter of repudiation Mrs. Peace was compelled to give it up for a reason over which neither she nor anyone else had any control, and which is the chief mischief of the case, viz, the depletion of income, which might have happened to any tenant. That is not denied and it constitutes a natural reason for Mrs. Peace to terminate, the contract. The trustees are as much, if not more, open to criticism than Mrs. Peace, since they were directed not to do the very thing that they did — engaging to invade Mrs. Peace’s income in violation of the trust and thereby involve Mrs. Jackson’s interest. If they did wrong they should not be heard in its defense. On the other hand, Mrs. Jackson has contributed to her loss by her inaction. She admits she knew of the venture when it was made, but says she protested it. The corporate trustee denies this protest. It then appears that at the audit of the 1936 accounting, of which Mrs. Jackson had notice, she made no objection, although certain [365] remaindermen objected to other items, and when overruled carried their-case to the Supreme Court. In failing to render any objection to the investment in 1936, Mrs. Jackson, being an adult competent person in possession of all of the facts, must be presumed to have approved the transaction in all of its aspects, both in matters of fact and of law, including the right always reposing in Mrs. Peace to revoke her contract at will. Had she registered a complaint at that time, it is quite possible a change in the investment might have been made to the present advantage of everybody concerned. By sitting idly by she has permitted the situation to go on, in a sense speculating on the result, knowingly accepting the fruits of the transaction for all these years, and must be held therefore to have acquiesced in it. She has had her day in court and her claim now is too late: Rambo’s Estate, 327 Pa. 258. She is in no better position actually than the cestui que trust in Thaw’s Estate, supra, where the latter, by permitting psychiatrists employed by the trustees to examine him to determine his sanity, was held to have acquiesced in their employment, thereby subjecting his income to payment of the bill for their services.
The exceptions are dismissed and the adjudication is confirmed absolutely.
Judges Sinkler, Klein, and Ladner dissent in an opinion by Klein, J.