{dissenting). I respectfully dissent in this case for the following reasons briefly stated: It is a general rule that restrictions and prohibitions as to' the use of real estate by the grantee should be resolved in favor of the free use of the property. Hutchinson v. Ulrich (1893), 145 Ill. 336, 34 N. E. 556, 21 L. R. A. 391.
I concur with the court in the statement that the intent of the parties is controlling. However, that intent is to be determined from the instrument. Resort is to be had to surrounding circumstances only in case of ambiguity. In the event that surrounding circumstances are considered they relate to circumstances of the parties at the time of the exe*630cution and delivery of the instrument. Farmers’ Loan & Trust Co. v. Commercial Bank of Racine (1862), 15 Wis. *424; Schuhknecht v. Robers (1927), 192 Wis. 275, 212 N. W. 657.
The question for determination is, Was it the intent of the parties that the restriction contained in clause 5 of the deed should be for the benefit of all purchasers of lots in the tract in question? I concur in the view of the trial court that the terms of the instrument itself conclusively rebut any such intention on the part of the parties. The reservation of a right to dispense with the condition is inconsistent with an intention that the restriction should be for the benefit oí subsequent grantees. In my opinion the restriction was solely for the benefit of the grantors and the following authorities so hold: Laverack v. Allen (1924), 2 N. J. Misc. 637, 130 Atl. 615; Safe-Deposit & Trust Co. v. Flaherty (1900), 91 Md. 489, 46 Atl. 1099. See also Stevenson v. Spivey (1922), 132 Va. 115, 110 S. E. 367; Green v. Gerner (Tex. Com. App. 1927), 289 S. W. 999.
In Rose v. Jasima Realty Corp. (1926) 218 App. Div. 646, 650, 219 N. Y. Supp. 222, the court said:
“A covenant which the grantor may cancel at will cannot be for the benefit of any one but him.”
The fact that the grantor corporation was subsequently dissolved and that as a result there is now no one who can dispense with the restriction does not in my opinion work a different result.
I am authorized to say that Mr. Justice Wickhem concurs in this dissent.
A motion for a rehearing was denied, without costs, on September 13, 1938,