Opinion
December 17, 1951.
Joseph Buch for trustees, petitioners.
In this accounting proceeding the Title Guarantee and Trust Company requests leave to resign as trustee and the appointment of the Chemical Bank Trust Company as a substituted trustee in its place and stead; and seeks a construction to determine whether the nature of the investments made by the trustee were to be determined as of the date of making such investments, the date of testator's death or the date of the will. The testator by paragraph "Seventh" directed the executors and trustees to invest funds in first mortgages upon improved real estate, and also in the bonds of the United States and of any State, city or county "or, in any other securities that are legal investments for trust funds under the laws of the State of New York." An examination of the will as a whole shows the evident intent of the testator was to enlarge the investment powers of the trustee to "any other legal securities that are legal investments," beyond the specific investments which were provided in the paragraph creating the trust. Although the testator died in 1937, the trust provision created the investment powers and the obligations of trustee with respect to investments fixed by the law effective at the time the investment is made ( City Bank Farmers Trust Co. v. Evans, 255 A.D. 135; Matter of Arms [ Tiffany Foundation], 193 Misc. 427; Matter of Hamersley, 152 Misc. 903; Matter of Emery, 199 Misc. 396, 397). The meaning and effect of this will granting the trustees power to make certain investments is no restriction upon the trustee to make investments "in any other securities" to the extent permitted by the statute in effect at the time the securities are acquired. Paragraph "Seventh" is so construed.
Sufficient reason having been assigned therefor, the application of the Title Guarantee and Trust Co. for leave to resign is granted, and the Chemical Bank Trust Company will be substituted in place of the resigning trustee upon qualifying according to law.
Settle decree, on notice, accordingly.