Pew Trust , 411 Pa. 96 ( 1963 )

Dissenting Opinion by

Mr. Justice Cohen:

I. agree with Justice Jones and Judge Taxis of the court below, that the settlor did not “direct” the apportionment between principal and income so as to bring this trust within the proviso clause of section 2 of the Principal and Income Act.

I likewise-agree that our decision in Catherwood with respect to the retroactive application of the Act to ordinary stock dividends is entitled to as much weight as our decision with regard to extraordinary stock dividends—a determination which the majority apparently accepts. Moreover, no reason is advanced by the majority why our decision in Catherwood that ordinary stock dividends are subject to the Principal and Income Act should now be overruled.

I would go further, however, and hold that the retroactive application of the Act to ordinary stock dividends does not violate due process or constitute an impairment- of the obligation of contracts, as contended by appellant. . As we held in Catherwood, “[t]here is ho vested property right in a court-made rule of apportionment.” [405 Pa. at 77]. Instead of undermining the Act of 1947 and our decision, in Catherwood, as the majority does, I would give appellant the opportunity to question the constitutionality of Catherwood before the United States Supreme Court—the obvious purpose of this litigation.

Accordingly, I dissent.