I am in thorough accord with the opinion of the majority as to the law governing this case, but I disagree sharply with them on the application of the law to the *Page 10 facts. In my judgment, the view expressed by the majority is too narrow as to the intention of testator regarding the charity he attempted to establish in his will. In construing that instrument, the majority look at one small brick and lose sight of the building testator sought to erect.

Perhaps, the most difficult task a court must perform is to arrive at the intention of a testator from the language used in the will. Ordinarily, that instrument is all a court has to guide it. Often there is nothing to show the testator ever thought of the particular situation which confronts the court, or ever had any actual intent as to such a situation. When judges say they are interpreting the intention of a testator, what they are doing in the majority of times is deciding what should be done with his property on contingencies which he did not contemplate at the time the will was written.

It is clear to my mind that the paramount intention of the settlor here was to create a charity in starting a small hospital for negroes in or near Mt. Sterling. Whether the building be erected in one place or another was not his paramount concern, but the uppermost thought in his mind was to start in a modest way a building so that an humble race might receive hospital care. True, he preferred it to be established in a certain locality, but surely he never intended his charity should fail because the location of the building he contemplated had to be changed.

Let this question be posed. A wealthy testator devises a million dollars for a hospital to be erected on a certain street for underprivileged people, and the will indicates he wants the building erected at no other place. Before or about the time of his death, the city is zoned and all buildings but private residences are excluded from the street designated in the will for the erection of the hospital. Should the trust fail because the building could not be erected where testator designated? Or should the court take a broader view and say the paramount intention of testator was to erect a hospital for an underprivileged class rather than that the entire charity must fail because the hospital could not be erected where testator desired and directed? It is patent the testator is more interested in establishing the hospital *Page 11 than in designating the place it should be built, and the court should so hold.

In the instant case, I feel the majority placed more importance upon the location of the building than upon the intention of testator to establish a small foundation for a worthy charity.

For the reasons given, I most respectfully dissent.