(dissenting): I am of the opinion that the complaint states a good cause of action. The surrogate could not have refused probate -óf thé will upon the ground that the testator, by the disposition of his property -therein made, violated his contract made for' the benefit .of the plaintiff.' In directing the distribution of the funds the surrogate merely followed- the provisions of - the will. The decree is conclusive as to the construction of' the will, but not as to equitable rights and interests in the property, which a court of equity only is competent to enforce. _ The funds are still intact in the hands of a trustee and have not passed into the hands of an innocent purchaser for value. !,*■ therefore, - see no objection to equity impressing a trust upon the funds in favor of the plaintiff, in accordance with his rights secured by the contract.
For these reasons I think the demurrer was'properly overruled. .
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below- .