The opinion
Quirico, J.
(dissenting). In this case a testator, by his will executed in 1963 and allowed in 1970, created a trust fund “to aid and assist worthy and ambitious young men to acquire a legal education.” The court by its opinion holds that the quoted language should be construed to have the same meaning which it would have if the testator had instead said that the trust was “to aid and assist worthy and ambitious young men and young women to acquire a legal education” (emphasis supplied). In so holding, this court affirms a judgment of the Probate Court to the same effect.
I respectfully dissent from this court’s holding. “The fundamental rule for the construction of wills is to ascertain the intention of the testator from the whole instrument, attributing due weight to all its language, considered in the light of the circumstances known to him at the time of its execution, and to give effect to that intent unless some positive rule of law forbids.” Hill v. Aldrich, 326 Mass. 630, 632 (1951). I know of no “positive rule of law [which] forbids” the construction of the testator’s will to mean exactly what he said he intended, viz., to create a trust “to aid and assist worthy and ambitious young men to acquire a legal education.”
The trial judge held in part: “To exclude females as possible recipients of financial assistance from a trust fund established for the purpose of assisting qualified students interested in the pursuit of a legal education would constitute an unreasonable and arbitrary exclusion.” The basic question for judicial determination here is what the testator intended by the language which he used. If he intended *213 the trust to be administered for the benefit of “young men” law students only, and not “young women” law students, it is not the function of the court to decide whether he was “unreasonable and arbitrary” in placing such a limitation on the expenditure of his own money. Surely it is not the law that a testator or donor may not bestow the benefit of his own funds on a class of persons of one sex to the exclusion of persons of a similar class but of the opposite sex, if that is his stated intention.
The judge further held: “A construction of the term ‘men’ in the testamentary trust to exclude females would raise the question whether State Courts may Constitutionally enforce a public charitable trust which discriminates against females unreasonably and arbitrarily. As set forth above, I have concluded that this question may and should be avoided by the construction I have placed upon the term ‘men’ which includes females as well as males.” I do not view the issue in this case as clouded by any constitutional question. Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974). Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972). Evans v. Abney, 396 U.S. 435 (1970). Evans v. Newton, 382 U.S. 296 (1966). Pennsylvania v. Directors of City Trusts of Philadelphia, 353 U.S. 230 (1957). Pennsylvania v. Brown, 392 F.2d 120 (3rd Cir.), cert. denied, 391 U.S. 921 (1968). Jackson v. Statler Foundation, 496 F.2d 623, 636-640 (2d Cir. 1973) (Friendly, J., dissenting from denial of rehearing), cert. denied, 420 U.S. 927 (1975). I therefore do not deem it necessary to engage in any attempt to review, rationalize, distinguish or apply any of the many decisions sometimes cited as justifying the construction of language in a particular manner on the basis that it is done for the primary purpose of avoiding possible constitutional questions. 1
*214 While this court reaches the same result as did the trial judge, it does so on different reasoning.
This court states in its opinion: “The term ‘young men’ is unambiguous unless, in the context of the entire instrument, an element of ambiguity is introduced.” The court then purports to find an element of ambiguity in that part of the will which suggests that the trustee “acquaint itself with the educational work of... [the Knights Templar] and use its program as a guide in the carrying out of the trust imposed on it under this portion of my will.” The court notes that the Knights Templar maintain a fund to assist worthy students by loans made to applicants “without regard to race, creed, color, sex or national origin” (emphasis supplied). Although the testator was thus aware of the fact that the Knights Templar loans were made without regard to “sex” (gender) when he referred to that program, in disposing of his own property he elected to state that the trust was “to aid and assist worthy and ambitious young men.” He used no language to the effect that the beneficiaries were to be selected “without regard to sex.” The very language on which the court relies to demonstrate an ambiguity in the will strengthens the view that the testator, knowing of the very broad scope of the Knights Templar program, carefully chose more restrictive language for the disposition of his own funds.
I would credit the testator, Leigh Sanford, with knowing exactly what he wanted to do with his trust fund, and with saying what he intended in clear and unambiguous language. I would not strain to attempt to find an ambiguity on which to justify the removal of restrictive language which he chose to use. Even though such a restriction may currently be in disfavor, it is not unlawful.
^The court states in its opinion that “[i]f some ambiguity should remain, we think the declared policy of the Commonwealth (art. 106 of the Amendments to the Massachusetts Constitution) regarding equal treatment of the sexes should lead us to resolve it in favor of the plaintiffs.” I do not agree that any ambiguity existed or remains. If any ambiguity remains, I do not believe that the 1976 constitu *215 tional amendment declaring the policy of the Commonwealth regarding equal treatment of the sexes is in any way relevant to the 1977 interpretation of the words “young men” either as of 1963, when Leigh Sanford executed his will, or as of 1970, when the will was allowed for probate. Furthermore, it is at least arguable, and perhaps quite probable, that the mandate of the 1976 constitutional amendment that “[e] quality under the law shall not be denied or abridged because of sex” (art. 106), was not intended to deprive, and does not deprive Leigh Sanford or any other testator of the right to make a testamentary disposition of his own property in trust for the benefit of persons of one sex to the total exclusion of the other. See Res. 1975, c. 26; Special Study Commission of the Equal Rights Amendments, First Interim Report par. 1 D (1976).
The court’s decision may have effects far beyond the single instrument being construed today. It is difficult to imagine language less ambiguous than that used by Leigh Sanford. If “young men” means “young women” in this case, it will be exceedingly difficult to distinguish other instruments where similar language is used. Need countless individuals who have spoken of “young men” or “young women” in wills not yet probated seek further to clarify their already clear intent? If such clarification is necessary, what further action will suffice? Must those administering trusts and estates seek court interpretation of gifts to “young men” or “young women” to determine whether they have misconstrued a settlor’s or testator’s intent? Are the many scholarship funds to be distributed to “young men” or “young women” students suddenly vague, ambiguous, or against public policy? It is regrettable that these uncertainties are being introduced into settled law.
This case brings to mind the following statement by Mr. Justice Harlan in his dissent in Evans v. Newton, 382 U.S. 296, 315 (1966): “This decision, in my opinion, is more the product of human impulses, which I fully share, than of solid constitutional thinking. It is made at the sacrifice of long-established and still wise procedural and substan *216 tive constitutional principle.” With appropriate paraphrasing, the same may be true of the decision of the present case. If the court’s decision is “the product of human impulses,” I share those impulses, but I subordinate them to Leigh Sanford’s right to impose the restriction limiting the beneficiaries of his trust fund to “young men.”
“This rule of constitutional adjudication is normally invoked to narrow what would otherwise be the natural but constitutionally dubious scope of the language.” Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 477 (1957) (Frankfurter, J., dissenting). See School Comm. of Springfield v. Board of Educ., 366 Mass. 315, 338 (1974), and cases cited (Quirico, J., concurring); First Nat’l Bank v. Attorney Gen., 362 Mass. 570, 594-597 (1972), and cases cited (Quirico, J., concurring).