Matter of Prime
Decision Date | 15 September 1951 |
Citation | 200 Misc. 410 |
Parties | In the Matter of the Accounting of Bank of New York and Fifth Avenue Bank, as Trustee under The Will of Cornelia Prime, Deceased. |
Court | New York Surrogate Court |
Emmet, Marvin & Martin for trustee, petitioner.
Munder, Weissman & Lockwood for Huntington Hospital.
HAZLETON, S.
Among the philanthropies established by the last will and testament of the late Cornelia Prime is a trust fund of $100,000 for the benefit of Huntington Hospital, which is administered by the petitioner, Bank of New York and Fifth Avenue Bank, as trustee.
Between the time of the death of deceased and the present, the statutes controlling investments of corporate fiduciaries have changed, as have our economy and social life. Prior to July 1, 1950, the law clearly authorized the investments made by the petitioner in units of its legal common trust fund. (Decedent Estate Law, § 111; Banking Law, § 100-c; Matter of Peck, 198 Misc. 395.) Chapter 464 of the Laws of 1950 (eff. July 1, 1950) substantially changed the scope of investments for trusts including legal common trust funds. Before this date a legal common trust fund was restricted to investing in securities legal for savings banks (L. 1937, ch. 687; L. 1943, ch. 602). After July 1, 1950, the field of investment for a legal common trust fund was liberalized and widened so that the common fund might be invested "in the manner in which fiduciaries are authorized to invest by section twenty-one of the personal property law." (L. 1950, ch. 464.)
Paragraphs (a) to (l) of subdivision 1 of section 21 of the Personal Property Law, as amended by chapter 464 of the Laws of 1950, enumerate the kinds and classes of securities in which trustees may invest. These are the traditional "legals" for investment by fiduciaries. Paragraph (m) of subdivision 1, chapter 464 of the Laws of 1950, is a distinct innovation in legislative control of fiduciary investments. It permits fiduciaries to invest in corporate securities, including common and preferred stocks, in addition to the securities made eligible for investment by paragraphs (a) to (l) of said subdivision 1. However, certain restrictions are imposed in paragraph (m) on investments made thereunder. One of the limitations is that "no investment shall be made pursuant to the provisions of this paragraph (m) which, at the time such investment shall be made, will cause the aggregate market value of the investments not made eligible by the preceding paragraphs of this subdivision to exceed thirty-five per cent of the aggregate market value at that time of all of the property of the fund held by such fiduciary".
In the case at bar more than 35% of the Huntington Hospital trust fund is now invested in part interests in bonds and mortgages. These investments were originally made pursuant to subdivision 7 of former section 188 of the Banking Law. The trustee has retained them pursuant to the authority of section 100-b of the Banking Law. These are not securities made eligible for investment under paragraphs (a) to (l) of subdivision 1 of section 21 of the Personal Property Law. Hence the (a) to (l) securities plus cash in the Huntington Hospital fund are less than 65% of its total. Accordingly, the trustee is in no legal position to invest any part of its fund in (m) securities. Instead, it has invested part of the trust fund in its legal common trust fund, and it intends to make additional investments in its common trust fund depending on the outcome of this proceeding.
The will under which this trust is administered does not grant the trustee discretionary powers of investment; nor does it prohibit investment in a legal common trust fund. Hence, the question to be determined herein is whether the petitioner is authorized under the modified "Prudent-Man" rule which became effective in this State on July 1, 1950, as amended by chapter 627 of the Laws of 1951, to retain the investments it has already made, and to make additional investments, in units of participation in its legal common trust fund, despite the fact that more than 35% of the Huntington Hospital trust fund is now invested in mortgage part interests which are not eligible investments under paragraphs (a) to (l) of subdivision 1 of section 21 of the Personal Property Law.
A similar situation was before Surrogate COLLINS in Matter of Peck (199 Misc. 1051) decided December 6, 1950, before the adoption of the 1951 amendment. There the court held (p. 1058) that an investment in a share of a legal common trust fund was "not made eligible" by paragraphs (a) to (l) of subdivision 1 of section 21 of the Personal Property Law, but by subdivision 3 of section 100-c of the Banking Law, and that the value thereof must, therefore, be included in the total value of the investments comprising the 35% category. Thus, in an estate of $100,000 with $25,000 already invested in a legal common trust fund, only $10,000 may be invested in nonlegals ($35,000 less $25,000). In holding thus the court reasoned as follows (p. 1057): ...
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Matter of Lincoln Rochester Trust Co.
...the power of the Legislature to make the change. (See Mullane v. Central Hanover Tr. Co., 339 U. S. 306-308, supra and Matter of Prime, 200 Misc. 410, 414.) Nor can it be said, as argued by said special guardian in his brief, that the statute is unconstitutional as discriminatory because it......