
    Matter of the Probate of the Last Will and Testament of Hortense Stikeman, Deceased, and for the Issuance of Letters Testamentary to the Title Guarantee and Trust Co.
    (Surrogate’s Court, Westchester County,
    August, 1905.)
    Executors and administrators — Appointment and qualifications — Right to administer — Banking corporation named as executor — Its right lost when, on merger with trust company, its corporate existence ceases.
    Where a testator named as his executor a strictly banking cor-' poration, a title guarantee and trust company, organized under a special act of the legislature, in which no specific mention is made of power to act as executor or administrator, does not succeed to its rights to act as executor by virtue of a merger with the former corporation, made after the execution of the will, by which the former’s stock was retired and it went out of business as a separate corporation.
    Proceedings upon the probate of a will.
    Edward E. Sprague, for petitioner.
    Charles E. Pelgram, for contestant.
   Silkman, S.

The petition for probate is made hy the Title Guarantee & Trust Company.

The contestant urges that the Title Guarantee & Trust Company has no standing to petition for the probate of the decedent’s will for the reason that it is not named as executor in the instrument propounded.

The Manufacturers’ Trust Company, the corporation named as executor, subsequently to the execution of the testamentary paper and on or about the 31st day of October, 1902, entered into an agreement of merger with the Title Guarantee & Trust Company. By the terms of this merger the capital stock of the Title Guarantee & Trust Company was increased by the sum of $375,000, and which increase was issued in exchange for the capital stock of the Manufacturers’ Trust Company amounting to $500,000. The agreement of merger was carried out, the capital stock of the Manufacturers’ Trust Company was retired and it went out of business as a separate corporation.

The Title Guarantee & Trust Company was not organized under the general statutes but under the name of the German-American Loan & Trust Company of New York, and received its corporate life through chapter 392 of the Laws of 1882. The powers given to it were the general powers and privileges of corporations other than money corporations. It was empowered to guarantee mortgages and titles to real estate, to act as fiscal or transfer agent, trustee, guardian, receiver, court depository, etc. What power it was given to do a banking business is contained in the following language: “ To receive deposits of money, securities and other personal property from any person, and to loan money on real or personal security.” This language is similar to that used in section 156 of the Banking Law. The charter was amended by chapter 367 of the Laws of 1883, and its powers were somewhat enlarged, but I do not find any specific mention of the power to act as executor or administrator. By chapter 167 of the Laws of 1884 the name of the German-American Loan & Trust Company of New York was changed to that of the Title Guarantee & Trust Company.

The merger of the Title Guarantee & Trust Company and the Manufacturers’ Trust Company, it is claimed, was accomplished under the authority of section 163 of the Banking Law, which reads: “ Every trust company incorporated by special law shall possess the powers of trust companies incorporated under this chapter and shall be subject to such provisions of this chapter as are not inconsistent with the special laws relating to such specially chartered company.” One of the powers granted to trust companies incorporated under general law is the power to merge with another company so incorporated under section 34 of the Banking Law, and another is the power to accept the appointment of executor and trustee under a will or the office of administrator.

The attorney for contestant urges that the Title Guarantee & Trust Company is not a trust company within the contemplation of the language of said section 163. While I think the contention is without merit, nevertheless if this court were to determine the question as it is presented hy the contestant it would he called upon to decide a question which indirectly would vitally affect the rights and franchises of a corporation in which enormous interests are involved. It is a question, whatever the jurisdiction of this court, which should be determined by a court of superior power and jurisdiction and upon the initiative of the people of the State through their attorney-general.

It is sufficient in order to dispose of this proceeding to determine whether the Title Guarantee & Trust Company, by virtue of such merger, has succeeded to the right to act as executor under a will wherein the Manufacturers’ Trust Company had been nominated. The answer, I think, must be in the negative.

The powers, duties and liabilities of the Manufacturers’ Trust Company were strictly those of a banking corporation organized under the provisions of the general law; on the other hand, the Title Guarantee & Trust Company, while it may have all the powers, duties and liabilities that would pertain to a corporation organized under the general law, nevertheless it has larger and greater liabilities and obligations by reason of its business of guaranteeing mortgages and the titles to real estate.

The will was made before there was any suggestion of merger between the two companies, and, therefore, it could not have been in contemplation of the willmaker at the time of the execution of his testamentary instrument. It is argued that all that the law permitted a corporation to do must be presumed to be in the mind of the trustmaker, but this, I think, would be straining the rule as to presumption beyond its legitimate purpose. We are to gather, if we can, the intention of the testator. We find bim appointing a strictly and purely banking corporation as his executor and trustee. This corporation has gone out of existence, its capital stock has been retired, it has become part of the Title Guarantee & Trust Company, and all its assets (whatever they may have been) are now subject to all the liabilities and obligations of the Title Guarantee & Trust Company, whether such obligations have arisen under the banking side of their business or under the title and mortgage insurance side.

There was no vested nor inchoate right obtained by the Manufacturers’ Trust Company by reason of its having been named as executor in the will; this right to administer became vested or inchoate only upon the death of the testator, and at that time the corporation named was not in existence, had no capital stock nor any official existence as a distinct corporation.

The petition must be dismissed upon the ground that the petitioner is a stranger to the will and to its probate.  