Opinion
March 11, 1942.
Present — Crosby, P.J., Cunningham, Dowling, Harris and McCurn, JJ.
Decree in so far as it adjudges that the bequest and devise to the Baptist Home of Monroe County failed reversed and matter remitted to the Surrogate's Court for further proceedings in accordance with the memorandum, without costs of this appeal to any party. Decree in so far as it fixes allowances to the attorneys for the parties to this proceeding affirmed, without costs. Memorandum: From an examination of the will of the testatrix we conclude that it was her intention to devise and bequeath the property mentioned in paragraph second of the will to the Baptist Home of Monroe County, subject to the lapse of such devise and bequest in the event that the testatrix made application in writing for admittance to said home and the home refused to accept her. We so construe paragraph second of said will. We also find from the evidence that she made no such application for admission to the home and that the home did not refuse to accept her. Accordingly that part of the decree appealed from which construes the will is reversed and the matter remitted to the Surrogate's Court to proceed in accordance with this decision, without costs of this appeal to any of the parties. All concur. (The decree construes a will and grants allowances to attorneys.)