
    In the Matter of the Final Accounting of Irving Trust Company, as Trustee under the Will of Edward O. Bartlett, Deceased.
    Surrogate’s Court, Dutchess County,
    August 31, 1959.
    
      
      Mudge, Stem, Baldwin $ Todd for petitioner.
    
      Burns, Currie, Maloney ■<& Bice for Springfield Hospital.
    
      Kissam $ Halpin for Ann N. Smith, and another.
    
      Samuel 0. Slee, as special guardian.
   W. Vincent Grady, S.

In the application for the final judicial settlement of the account of proceedings of Irving Trust Company, trustee of the trust for the benefit of Norma Preston Bartlett, under the last will and testament of Edward Otis Bartlett, deceased, covering the period March 13, 1952 to December 10, 1958, a request was made for the construction of the will on an agreed and stipulated set of facts.

After reading the petition, the stipulation, the memoranda submitted by the respective parties, and all the papers on file, and after due deliberation thereon, the court finds and decides as follows:

This court by decree dated July 11, 1932, made a determination that testator’s bequests to Springfield Hospital and to Anna Barstow Nollen and Emeline Bartlett Nollen, were general legacies, payable upon the death of Norma' Preston Bartlett, and that said legacies were to abate proportionately if at the widow’s death there were insufficient funds remaining to satisfy the legacies in full.

Although by the third codicil of his will, testator gave 1,000 shares of Springfield Fire & Marine Insurance Co. stock to Springfield Hospital, the hospital has agreed to accept cash in lieu of the stock, and the question to be determined at this time, is the amount it is entitled on this accounting.

In the opinion of the court, after reading the will and codicils, it is clear that testator intended that Springfield Hospital should share his estate with his two nieces and not that it should take all and exclude them. Therefore the amount of the bequest to the hospital should be measured by the value of 1,000 shares of Springfield Fire & Marine Insurance Co. common stock on September 2, 1958, the date of the death of Norma Preston Bartlett, or $30,500.

This amount should be paid Springfield Hospital as well as general legacies of $25,000 each to Anna Barstow Nollen and Emeline Bartlett Nollen, and the balance then remaining should be placed in trust pursuant to codicil numbered “ Second Codicil

Submit-decree accordingly.  