On appeal from the Monmouth County Court, Probate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld and Burling. For reversal -- Justices Heher and Jacobs. The opinion of the court was delivered by Oliphant, J. Heher, J. (dissenting). Jacobs, J., concurs in this opinion.
This is an appeal from a part of a judgment of the Monmouth County Court, Probate Division, entered December 9, 1953, which denied the application of Porter Hoagland for the confirmation of an appointment by him of a corporate co-trustee of a trust created by the last will and testament of Raymond Hoagland, deceased. The appeal was certified here on our own motion, R.R. 1:10-1(a). The appeal is taken by a legatee and trustee under the will and also by the guardian ad litem for infant beneficiaries and remaindermen. There are no respondents.
The testator died a resident of Rumson, New Jersey, on April 17, 1927, and his will was admitted to probate by the
Monmouth County Surrogate's Court on April 29, 1927. A substantial part of his property was left in trust, and since that date Raymond Hoagland, Jr., one of the designated trustees, was discharged by an order of the Monmouth County Orphans' Court dated March 20, 1930. A second trustee, Joseph C. Hoagland, recently resigned and was discharged by the judgment now under review.
The present application was made by Porter Hoagland, the one remaining trustee, who exercised the power of appointment given by the 13th paragraph of the will and designated as a substituted trustee, City Bank Farmers Trust Company of the Borough of Manhattan, New York, New York, a trust company with its principal place of business in the City of New York. The 13th paragraph of the will states that any surviving trustee is empowered to designate as a substituted trustee "a Trust Company having its principal office in the Borough of Manhattan, City and State of New York, and generally recognized as a Trust Company of the highest class and of the strongest financial rating and resources." It is not disputed that the suggested trustee, City Bank Farmers Trust Company, generally meets the qualification set forth in this paragraph.
The question here presented is whether such trust company can be appointed in view of the provisions of R.S. 17:9 A -316(B):
"B. A foreign bank, other than one excluded by subsection A of this section, may transact business in this State only as executor or as testamentary trustee or guardian, and then only when named in a decedent's will or codicil thereto. Before transacting such business in this State, a foreign bank shall secure from the commissioner a certificate of authority to transact such business. The commissioner shall not issue a certificate of authority to a foreign bank unless a qualified bank is permitted to transact business as executor, or as testamentary trustee or guardian, when named in a will or codicil thereto, in the jurisdiction in which the foreign bank has its principal office."
The trial court denied the application to confirm the appointment on the ground that a foreign bank or trust company
could only be designated when it is named in the will, and that the language of the statute was controlling rather than the language of the will.
The appellant argues that under the law in effect at the time the testator died and when the will was probated in 1927, the prohibition found in the statute and relied on ...