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Court Discusses Investment Provision of a Will


As an incident to trustee’s intermediate account of four trusts created under articles ‘Seventh,’ ‘Eighth’ and ‘Ninth’ of the will, the Court’s instruction is sought as to the investments authorized by article ‘Fourteenth’ of the will and as to significance to be given to the term ‘fiscal agent’ as used therein.

The Testator died a resident of Kings County, on February 14, 1924, leaving a will dated May 11, 1920, which was admitted to probate on April 11, 1924. The petitioner’s predecessor, a trust company, was appointed executor and trustee thereunder.

The portion of the will to be construed expressly states that the authority to invest shall be limited by the following: ‘Nor shall it invest in any shares or securities of which it may be promoter or underwriter, or of any corporation for which it shall be the fiscal agent.’

At the time the will was executed, trust companies were permitted ‘to purchase, invest in and sell stocks, bills of exchange, bonds * * * and other securities.’ Chapter 369, § 185, Laws of 1914. Trust companies now are not empowered to act as a promoter or underwriter of stocks, although under section 100, Banking Law, a trust company may act as a ‘fiscal agent.’

The difficulty arises out of the fact that a fiscal agent is generally considered one which acts as interest or dividend paying agent, sinking fund agent, escrow fund agent, transfer agent or registrar, and perhaps even as a depository. The Court must determine therefore whether or not the trust company is prohibited from making investments in the stocks or bonds of any corporation for which the trust company acts as interest or dividend paying agent, sinking fund agent, transfer agent, registrar or depository.

Construing the four corners of the will, the above mentioned prohibition concerned itself with the avoidance of self-dealing, the desire for independence of action untainted by conflicts of interest, and not the mere ministerial banking activities of a ‘fiscal agent’. The Trustee is therefore not prohibited from making permitted investments in stocks, bonds or securities of corporation for which it performs the activities of a fiscal agent as defined herein, and the said article is so construed. Settle decree on notice.

In another case, a case was appealed from Supreme Court, Appellate Division, Second Department. This appeal was brought about by reason of a proceeding in the matter of the petition to prove the last will and testament of deceased testatrix.

The Surrogate’s Court, Kings County denied probate to the will, on ground that it had not been executed as required by Section 21 of the Decedent Estate Law because testatrix allegedly did not acknowledge her subscription to the second subscribing witness, and the proponent appealed.

The Appellate Division, reversed the decree, remitted the matter for proceedings consistent with the decision, and held that where will had in fact been subscribed by testatrix and had been declared by testatrix to be her will, and signature on will was clearly visible to second subscribing witness, will should not have been rejected on sole ground that testatrix had not made express acknowledgment to second subscribing witness that the subscription was that of the testatrix.

The contestants appealed to the Court of Appeals, contending that the majority in the Appellate Division erred in its interpretation of the findings made by the Surrogate, and that the majority in the Appellate Division erred in its conclusion that testatrix had acknowledged her signature to the second subscribing witness in accordance with Section 21 of the Decedent Estate Law, Consol. Laws, c. 13.

Order of Appellate Division affirmed, with costs payable out of the estate to all parties appearing separately and filing separate briefs. Appeal from the decree of the Surrogate’s Court dismissed.

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