Majority
p. 850Franklin Webster and Edward B. Webster, Appellants, v. Carl L. Gleizes, Jr., as Executor, etc., of Charles A. Webster, Deceased, Defendant, Impleaded with William Don, as Executor, etc., of Jane Don, Deceased, Respondent,[1]
Judgment and order affirmed, with costs. No opinion. Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ.; Merrell, J., dissents upon the ground that the testator by his will manifested no intention of leaving his entire estate
p. 851
to William Don, but, on the contrary, intended it to be devoted to charitable purposes; that failing to effectually carry out his clear intent, it is as though he died intestate, for the law ignores the illegal and unenforcible trust attempted to be created, and the will by operation of law passes the estate to the heirs and next of kin of the testator.