In re the Application for Revocation of the Letters Testamentary Issued to the American Security & Trust Co.

The grounds upon which the revocation of letters is sought are, that at the time such letters were issued the Trust Company was disqualified from accepting the appointment as executor under the will of the deceased, or from acting as such executor, and that the court was without authority to issue such letters to it, and that the objection was not taken upon the hearing of the application for the issuing of such letters by the petitioners, or any of them, or any one representing them, and that said Trust Company is now disqualified by law from exercising the powers of executor over the estate of the deceased; and second, that it has invested the funds of the estate in securities unauthorized by law.

The right of an individual to make a will disposing of his property is not a vested property right but rests upon statutory enactment, and is subject to such limitations and restrictions as respects the substance, form and beneficiaries, as the law imposes. It is equally true that administration and transmission of estates of deceased persons are regulated and controlled by statute. The right to appoint an executor or trustee by will to carry its provisions into effect is in no sense a vested right, but is restricted and regulated by statute, as is the action of the court in issuing letters conferring authority upon the person so appointed to act.

It is said that an executor derives his appointment and powers, and his title to the estate, from the will. People ex rel. Gould v. Barker, 150 N. Y. 52 , 57; Hartnett v. Wandell, 60 id. 346.

That these expressions are general and are not intended as defining the legal effect of the instrument itself is manifest upon a moment’s reflection, for if the concurrence of the fact of the execution of the will and the death of the testator effectuates the appointment of an executor, vests him with the title to the estate, and clothes him with power to execute its provisions, no further act would he required on the part of the court to enable him to proceed with the administration and disposition of the estate according to its terms. He derives no such authority, however, from the will itself. He can exercise none of the functions of his office or the powers

"Whether the action of the court in issuing letters to -an executor is to be deemed an appointment, or be described by the use of some other term, is of but little consequence. The fact remains that it requires the concurrent action of the court and that of the testator to create an executor and confer upon him power to execute the provisions of the will. Upon the issuing of letters to an executor he becomes an officer of the court for the purpose of executing a trust, with power reserved in the court to direct and control his conduct, settle his account, etc. Code, § 2472. He takes an administrative title to the estate — the legal title for the purpose of administration and to enable him to pay the debts of his testator and pass the property forward to the beneficiaries under the will at the proper time: Steinway v. Steinway, 163 N. Y. 183 , 200; Lane v. Albertson, 78 App. Div. 607 , 614; Lediger v. Canfield, id. 596—598 ; Morchauser v. Pierce, 64 id. 558, 560. He holds such title not in his own right but as trustee for the benefit of creditors and the beneficiaries under the will. Blood v. Kane, 130 N. Y. 514 , 517; Ledyard v. Bull, 119 id. 62, 72. Inasmuch as the residence and domicile of the testator at the time of his death was in this State and all of the real estate of which he died seized actually situate here, and all the personal property which.he possessed was, at least in contemplation of law, at the place

Allusion has already been made to the fact that a testator in his appointment of an executor is circumscribed in his selection by such limitations as are imposed by statute. To this we should add that he is also limited in his selection to persons and corporations whose appointment, does not contravene the public policy of the State, for whatever is against public policy is against the law and must be treated as though prohibited.

This brings us to the first important question in this proceeding, whether there was authority in law for -the appointment of this Trust Company, a foreign corporation doing business in the District of Columbia, to the office of executor within this State. If there was not, then the action of v ' the court in granting letters was without jurisdiction, and it is our duty to revoke, the same. This question naturally subdivides itself under two heads. 1. Was the Trust Company, by its charter and the laws of its own domicile, authorized to accept and execute such trust in this State? and 2. Do the laws of this State permit it to come here and execute such a trust and authorize this court to issue letters unto it? In the view which we take of the question it is unimportant whether by its charter and the laws of its domicile, the Trust Company has authority to accept and execute such a trust here, and I shall, therefore, assume for the purpose of disposing of this case that it possessed such authority.

Section 2685 of the Code of Civil Procedure provides for the revocation of letters issued to an executor or administrator : “ Where the executor or administrator was, when letters were issued to him, or has since become, incompetent,

The Legislature undoubtedly has a right to determine who may and who may not be appointed, or accept and execute the office of executor, in this State. In doing this the State does not interfere with the testator’s right to dispose of his property; it simply limits the agency through which it is to be distributed under the supervision and direction of the court.

The general provisions of the statute governing the qualifications of executors, or perhaps - more strictly speaking the incompetency of persons to serve as such, are found in section 2612 of the Code of Civil Procedure, which provides that “No person is competent to serve as an executor who, at the time the will is proved, is: 1, Incapable in law of making a contract; 2, Under the age of twenty-one years; 3, An alien not an inhabitant of this state; or 4, Who shall have been convicted of 'an infamous crimeetc.

It will be noted that the language of this statute does not expressly prohibit the appointment of such persons as executors, or the court from granting letters unto them; but it cannot be doubted that it was so intended by the Legislature, and it is a well-settled rule of construction that- a thing which is within the intention of the makers of a statute is as much within the statute as if it was within the letter. Riggs v. Palmer, 115 N. Y. 506 , 509. There is no essential difference respecting the competency of persons to serve as executors from that of administrators under section 2661 of the Code of Qivil Procedure. These provisions relating to the competency of executors and administrators should be considered as in pari materia. They both deal with the question of the competency of persons authorized to administer and settle the estates of deceased persons, and it is a well-established rule of construction that the intention of the Legislature is to be collected from the act itself and other acts in pari .materia. Section 2661 of the Code expressly provides that letters of administration shall not be granted to the class of persons enumerated therein, which is the same class de

I have no hesitancy, therefore, in reaching the conclusion that so far as these general code provisions are concerned they are confined, and were intended to be confined, to natural persons and by necessary implication this Trust Company derived no right thereunder to have letters issued to it, and the court thereby obtained no authority to issue them. If, however, at this late day in the process of devolution, it should be held that these provisions of the Code are to be

Again, assuming the right of the Trust Company under its charter and the laws of its creation to exercise its chartered powers and privileges beyond the boundaries of the State of its creation, this right only goes to the question of ultra vires and cannot confer the right upon it to exercise such powers and privileges in the State of New York, if contrary to its laws, or against its public policy. Such rights can only be granted by this State. Corporations are purely the creatures of statute and have only such powers and privileges as are conferred by their charters and the laws of their creation, including such incidental powers as are necessary to the exercise of the powers expressly conferred. Their legal residence and domicile is in the State creating them, and they have no absolute right to exercise their chartered privi

Has then the Legislature.by any express or implied grant or permission authorized foreign trust companies, or this Trust Company, to come into this State and accept the office of executor and execute the will and administer the estate of a resident testator? It is not contended by counsel for the Trust Company that any statute exists which expressly gives any such consent or permission. The only general statute of our State dealing with the subject of trust companies, in connection’with their acceptance of the office of executor or administrator and the administration of estates, is found in article IV of the Banking Laws relating to the organization, powers, obligations and duties of trust companies. Under this act trust companies are authorized and permitted to accept appointments as executors, administrators, etc., and to execute the duties of those offices, and the court is expressly authorized to make the appointment; but the authority and permission in this respect are by the terms of the act itself expressly limited to domestic trust companies organized under or embraced within the terms of that act, and can in no manner be said to apply to or grant any authority to foreign trust companies in respect to executorships. Even had the language of this statute been less explicit in limiting its application to domestic trust companies it could not be held to embrace foreign trust companies, in the absence of language clearly indicating that they were intended to be embraced, under the now settled rule of law in this State that “A statute of a state granting’ powers and privileges to corporations must, in the absence of plain indications to the contrary, be held to apply only to corporations created by the

But counsel for the Trust Company contend that the State has impliedly granted this permission as evidenced by its public policy toward foreign corporations under the doctrine of comity. To quote from the statement of their position as presented by their brief “ Our (the Trust Company’s) right to this appointment does not depend upon any statutory consent or permission of Mew York State, but solely upon whether we can, under our charter and our home laws accept and execute similar trusts, and upon the absence of a legal prohibition here.”

The rule of law relied upon in support of this contention and as applicable thereto is, that, “ unless prohibited by law a foreign corporation duly organized can .come into this State and exercise the legitimate powers conferred upon it and carry on any business not prohibited by law.” Dunbarton Flax Spinning Co. v. G. & J. R. Co., 87 App. Div. 21 ; Hollis v. Drew Theological Seminary, 95 N. Y. 166 ; Demarest v. Flack, 128 id. 205 ; United States V. Co. v. Schlegel, 143 id. 542.

Applied in the sense in which the language used in expressing this rule of law was intended there is probably no substantial conflict of authority as to the rule itself. The rules of law are too well settled to need the citation of authorities, that the domicile of a corporation is in the State creating it, and that it has no migratory powers; that the laws of the State creating and conferring powers and privileges upon it have no extra territorial effect in granting it permission to execute its chartered privileges in any other State and that it has no powers or privileges other than those conferred by the laws of its'own creation.

The rule of law as intended by these authorities is, and should be, as I apprehend, that if permitted by its charter and the laws of the State creating it, a corporation may exercise its chartered privileges in any other State which grants it permission to do so, and such permission may rest upon express statutory enactment or be implied from the public

The broad and liberal policy of this State in permitting foreign corporations to exercise their chartered privileges in this State has been of such universal application as to give rise to the negative, expression that unless prohibited the right exists. It is, however, nothing more than a convenience of expression, for the fight must rest upon permission instead of prohibition. Keeping in mind this basic principle the use of the term prohibition is not objectionable. Hot having granted such permission by statute it only remains to be considered whether by this general policy of permitting foreign corporations to come into and do business in this State (which is indicated by the cases cited) the State has by implication granted such permission respecting the class of trusts under consideration, or, to use the negative expression, are foreign corporations prohibited from executing this class of trusts in this State. This prohibition may be founded upon implication existing in our statutes relating to the organization, privileges and duties of trust companies, and the authority of the court to grant letters, etc. (Banking Law, art. IV), or it may be found in the fact that it is contrary to our public policy to permit the execution of such trusts by foreign corporations. I am of the opinion that a foreign trust company is not permitted under the laws of this State to come here and act as executor of wills and administer the estates of deceased testators, and that the court is without authority to issuó letters to such a corporation, both upon the ground that the statute (Banking Law, art. IV), relating to trust companies, impliedly prohibits such appointment and upon the further ground that it is contrary to the public policy of this State to permit the execution of such trusts by foreign corporations.

In the case of Ormiston v. Olcott, 84 N. Y. 339 , 343, it is declared to be the law of this State that the investment of funds of an estate by an executor or trustee in foreign securities is unauthorized (notwithstanding the absence of statutory prohibition), and the rule established is that “ such an in

These conditions and effects arise and follow as a natural consequence of the appointment, and they tend to hinder the proper administration of estates and hamper the enforcement of our laws. These consequential effects are contrary to sound public policy and, in the absence of express permission allowing it, the appointment from which such consequences flow must be deemed prohibited.

The fact that the court may require a trust company to give a bond as executor in certain cases does not go to the question of jurisdiction, hence the giving of a bond, or the willingness to give it, cannot be held to confer authority upon the court to issue letters. ¡Neither does the fact that the statute authorizes the appointment of a citizen of the United States who is a nonresident of the State, establish a public policy broad enough to warrant the inference that a foreign corporation is likewise permitted to serve in such capacity. The right of a nonresident citizen to act as executor or administrator within this State was doubtless granted in deference to that public sentiment which has prevailed in this country since the organization of our government, that the citizens of one State should be entitled to the privileges and immunities of the citizens in the several States, which was subsequently embodied in the Fourteenth Amendment of the Constitution of the United States; but there is no principle or public policy involved which calls for an extension of this right, by analogy, to the case of foreign corporations.

¡Now, let us consider the implied prohibitory effect of our own statute on the rights, of foreign corporations to execute the trust of executor in this State. The statute (Banking Law, art. IV), conferring authority upon trust companies

We are clearly of the opinion that when the Legislature thus conferred authority upon trust companies organized thereunder, as a class, to accept the office of executor, administrator, etc., and conferred authority upon the court to issue letters to such companies and then by the terms of the same act broadened the class so as to include all other trust companies organized under special statutes of the State, it limited the appointment to the particular classes enumerated, viz., domestic trust companies, and by necessary implication prohibited the appointment of, or the issuing of letters to, foreign trust companies of a similar class. i

It should not be presumed, from the absence of prohibition alone, that the Legislature intended to allow foreign trust companies to execute this class of trusts in this State, by reason of its general policy toward foreign corporations, when we consider the attendant consequences to which we have alluded, and which are particularly manifest in the case under consideration. This statute in conferring upon courts the authority to issue letters and appoint trustees is dealing with the most sacred class of trusts; trusts respecting the estates of deceased persons, and living persons who, by reason of infancy or infirmities, are unable to properly safeguard and protect their own interests; trusts respecting property and estates over which our courts exercise guardianship authority

Moreover, the Legislature in the enactment of this statute authorizing the formation of trust companies and conferring upon them power to accept and execute this class of trusts, has imposed upon them as a condition of the exercise of such privileges unusual and peculiar liabilities and responsibilities, and it has made claims against them for trust funds entitled to priority of payment out of their property in case of dissolution.

It seems almost like impugning the intelligence of the Legislature to presume that it intended — by the absence of prohibition alone —to allow all foreign trust companies, with the measure of their liabilities and responsibilities fixed by the laws of their own creation, .to- come in here and demand as a matter of right authority to- execute such trusts, because to do so, if the position of counsel is correct (that they have such right without complying with our statutes to- enable them to do business in this State as foreign -corporations), it enables them to come here and execute such trusts without obtaining permission from our State authorities, without designating any person upon whom process may be served, without maintaining any office or having an officer located here; without subjecting itself to the visitorial powers, or the power of control of any State department, and without safeguarding the rights of our own citizens in any manner save by giving a bond, which, with doubtful authority may be ordered by the court, and when clothed with authority to act, by the court, to take itself and the property of the estate committed to its care to its own domicile beyond the jurisdiction of the court.

The conclusions which we have reached in no manner conflict with the rule of law contended for by counsel for the Trust Company concerning the right of foreign corporations to exercise their chartered privileges in this State, as indicated by the authorities, because all the authorities recognize and assert the doctrine that such right is withheld if its exercise here be contrary to our laws or public policy, and hence the legitimate scope of the authority and right of foreign corporations to come into this State and exercise their chartered privileges in the execution of trusts, prior to the passage of chapter 492, Laws of 1904, was, in my opinion, limited and confined to the execution of, trusts founded upon contractual relations, and only domestic trust companies were, authorized to execute trusts of the class under consideration, whose execution is under the direction and control of our courts and the trustees, officers thereof.

If our views are correct in this respect it makes harmonious the action of the Legislature by the passage of chapter 492

The fact that the petitioners consented to the issuing of letters to the Trust Company as executor does not, in my opinion, estop them from maintaining this proceeding. The right of the Trust Company to act as executor, as well the authority of the court to issue letters to it, is jurisdictional, and it is a well settled principle of law that consent cannot confer jurisdiction in such matters-. Consent may confer jurisdiction of the person, but is ineffectual to confer jurisdiction of the subject-matter, and hence the consent- of the petitioners in this case cannot be held to confer authority upon the court to make the appointment where no authority existed at law.

In view of the conclusions reached I do not deem it necessary to discuss the various other questions raised by counsel for petitioners respecting the authority of this Trust Company to act as executor in this State, or the effect of chapter 492 of the Laws of 1904, to prevent the further exercise of its chartered privileges in the execution of such trust (if such right previously existed), and I do not pass upon these questions.

The only remaining question to be considered is whether this Trust Company, by reason of its having invested moneys of the estate in securities -unauthorized by the laws of this State, is unfit for the due execution of its office. This question involves the conduct of the Trust Company in the management of the estate. The moneys, stocks, and securities constituting nearly the entire bulk of the estate- were removed-by the Trust Company from this State to its own domicile in the city of Washington, D. C., prior to December 1, 1902, and on December second thereafter it loaned to Henry Hurt, one of its own directors, $60,000 of the estate moneys, taking his

Between October 27, 1902, and July 14, 1903, the Trust Company invested $60,672.50 of the moneys of the estate in railroad bonds; $12,106.88 in railroad stocks, and $400 in its own corporate stock—altogether $73,179.38. On November 23, 1903, the president of the Trust Company verified an account of its proceedings as executor, and on December 18, 1903, the same was filed in the surrogate’s office. Down to that time these investments, aggregating $133,179.38 were the only investments which it had made and every dollar thereof was unauthorized by the laws of this State. The evidence fails to disclose what part, if any, of these investments in bonds and stocks have been realized upon. Suffice it to say that it does affirmatively show that some, at least, are still outstanding.

While it is not sought to charge the Trust Company personally as in case of devastavit with these improper investments, nevertheless the adult residuary legatees objected to and criticised them, upon discovery, and the trust officer of the executor agreed to make no others of that class without consulting them, and the infants who have a contingent interest in the estate and funds are incapable in law of giving consent thereto. The reasons given in explanation of these investments and as an excuse therefor are, that in the District of Columbia there is no statute or other law limiting or prescribing the class of securities in which trust funds must be invested; that they were in the same class in which the estate held investments, made by the testator in his lifetime; that the officers of the Trust Company considered them good investments and were ignorant of the laws of this State limit

The Trust Company was advised, however, by its counsel, more than-a year after its appointment, and after these investments had been made, and at a time when they were being criticised by the legatees, that they were improper investments for trust funds under the laws of this State. Notwithstanding this it invested $60,000 at least, and probably more, of the moneys of the estate on mortgage securities upon real estate situate in Washington, D. C. These investments were made by the Trust Company’s turning over unto itself as executor mortgages which it already held and had on hand, and this without guaranty of payment on its part. These investments are condemned by the principle laid down in the case of Ormiston v. Olcott, 84 N. Y. 339 , 343, as being beyond our own jurisdiction and subject to other laws and foreign tribunals. Furthermore, as shown by the evidence, the basis of loans made by this Trust Company is sixty-six and two-thirds per cent, of the value of the property, whereas under our statute (Laws of 1902, chap. 295), the value of the property is required to be worth fifty per cent, more than the amount loaned thereon.

These investments in mortgage securities are not referred to in the petition and probably were unknown to the petitioners at the time of making' it, and they cannot, therefore, be considered as a proper basis for revocation of letters in this

The fact that no apparent loss has thus far resulted from these unauthorized investments, and that the interested parties háve not, upon the accounting, sought to have the trust company charged with them as in the case of devastavit, does not alter the case. And the argument presented by the brief of counsel for the trust company, made with more particular reference to the investments in mortgage securities, that it will be time enough for the petitioners to complain respecting these investments when the estate has suffered a loss therefrom and the executor has sought to avoid responsibility therefor, is not sound in principle. It illustrates, however, the attitude of the Trust Company toward the parties interested in

These parties have a right to insist, and demand as a matter of right, that this estate be invested and administered in accordance with the law of this State. This is the precise obligation which the trust company took upon itself when it undertook the execution of this trust. And when it made the series of investments complained of, it violated this obligation and was guilty of infidelity to its trust. The argument that it is wealthy, and able, and willing to make good any loss is at once a confession and avoidance. The interested parties are entitled to insist upon the protection and security afforded them by our laws in safeguarding investments of trust funds, and are not required to be content with the security alone which the financial responsibility of the executor affords them. This responsibility is at all times subject to fluctuation, and dependent upon the skill and ability of its managers, and the present measure of its responsibility may not be the standard which will exist in years to come when the distribution of these moneys will take place, and, furthermore the rules of law governing the investment of trust funds apply with equal force to the wealthy as to those less favored financially.

The conclusions which I have reached upon this branch of the case are not to be understood as warranting the inference that every technical breach of trust by an executor will call for a revocation of his letters. The protection of the estate and of the substantial rights of interested parties should be the controlling principle in determining whether or not letters should be revoked. It was upon this principle that the case, Matter of O’Hara, 62 Hun, 531 , relied upon by counsel, was decided. A careful examination of that case leads me to the conclusion that while laying down the proper principles of law, applicable to this class of cases, the circumstances of that case and the questions involved therein are so different from the questions involved in and the facts surrounding this case as to make it inapplicable as a controlling authority in this case.

It appears that at some time after making the investments

It follows from the conclusions reached that the letters testamentary issued to the American Security and Trust Company should be revoked, and a decree will accordingly enter. The question of costs will he adjusted upon application. The attorney for petitioners may prepare proposed findings and a decree in accordance herewith.

Decreed accordingly.