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In the Matter of Stanley W. Hayes to Obtain a Determination as to the Validity, Construction or Effect of the Dispositions of Property Contained in the Last Will and Testament of Ellen Hayes, and for Advice and Direction as to the Propriety, Price and Manner and Time of Sale of Certain Real Property Included Among the Assets of Ellen Hayes, Oliver Wolcott Hayes and David Winchell Hayes, Infants, G. D. B. Hasbrouck, as Special Guardian, and Others, Appellants Arthur Garfield Hays and Others
Decree modified by striking therefrom the provisions contained in paragraphs thereof numbered I, II and III, and inserting therein, in lieu thereof, the following paragraph: Under subdivision (d) of paragraph V of said will the testatrix intended to create a trust in Arthur Garfield Hays of the residue of the fund 745 consisting of the $18,251.19, plus the proceeds of the sale of the real property mentioned in paragraphs II and III of the will, less the bequests made under subdivisions a, b and c of paragraph V of the will, and that said intended trust failed and is illegal and void and that as to said residue of said fund and the residue of her estate the testatrix died intestate, with costs to all parties filing briefs, payable out of the estate.
Rhodes, Crapser, Bliss and Heffernan, JJ., concur; Hill, P. J., dissents and votes to affirm. [146 Misc. 660.]