
    In the Matter of the Estate of Amelia A. Meyers, Deceased.
    Surrogate’s Court, New York County,
    February 15, 1938.
    
      Strasbourger & Schallek, for The Hebrew Orphan Asylum of the City of New York.
    
      Tanner, Sillcocks & Friend, for the petitioners, as executors, etc.
    
      Proskauer, Rose & Paskus [Alfred L. Rose and Jacob P. Aronson of counsel], for the Mount Sinai Hospital, respondent.
    
      Burlingham, Veeder, Clark & Hupper, for the Henry Street Settlement.
    
      Stroock & Stroock, for the Montefiore Hospital for Chronic Diseases.
   Foley, S.

In this executor’s accounting a question of construction is presented for determination by reason of the fourteenth paragraph of the will of the testatrix which disposes of her residuary estate. By that paragraph the residue is bequeathed to Mount Sinai Hospital of New York City, to be used by it for the construction of a new building or to be used by it to dedicate the building called The Semi-Private Pavilion.’ ” She further provided that the building be dedicated in perpetuity and that a plaque be placed on it as follows: “ This building is Dedicated to the Memory of Abraham and Amelia Meyers.”

Mount Sinai Hospital has accepted the bequest but in its answer alleges that it cannot comply literally with the terms of the will. The residuary estate is less than $250,000 which sum, it is stated, is insufficient for the construction, by the hospital, of an entire new building. The money cannot lie used to dedicate the building called “ The Semi-Private Pavilion ” because that budding has already been dedicated. Instead the hospital proposed to construct upon the roof of one of its existing buildings a new structure devoted to medical research and laboratory use and to place upon it an appropriate tablet of the origin of the gift.

The proposal of the hospital, when carried out, will substantially effectuate the intention of the testatrix. Pursuant to the provisions of section 12, subdivision 2, of the Personal Property Law, which vest in this court cy pres powers, and under the authority of Matter of Gary (161 Misc. 351; affd., 248 App. Div. 373; affd., 272 N. Y. 635) and Matter of Swan (237 App. Div. 454; affd., 263 N. Y. 638), the surrogate will approve the objects of the modified plan of the hospital.

Submit decree on notice construing the will and settling the account accordingly.  