In re the Intermediate Accounting of Bainbridge

Maximilian Moss, S. As an incident to an intermediate accounting, Bankers Trust Company, cotrustee under decedent’s will, seeks leave to resign as trustee. It also prays that the First National City Trust Company be appointed as successor trustee with the right to receive full commissions on principal and income together with all rights, powers, authorities and discretions granted under decedent’s will. Under article “ Fifth” of testator’s will, the trustees named in the will were authorized to retain stock in a corporation in which testator held all the outstanding shares of common stock. The testator expressed a wish that the trustees continue the operation of said corporation which he characterized as a “ well established, sound and profitable enterprise ”, and relieved the trustees from “ personal liability for any transactions involved in carrying on said business ” or for any loss that may occur. Under subdivision (5) of said article, provision is made for additional compensation “ commensurate with the time, effort and [721] responsibility devolving upon them in the performance of their services with respect to such business.” It is clear that testator intended that the powers conferred upon the corporation trustee named in the will were to attach to the office and were not to be deemed personal. The original trustee being a corporation, the intent appears clear that the testator meant the powers to survive (Matter of White, 135 Misc. 377; 2 Scott, Trusts [1st ed.], § 196, p. 1064). To reach a contrary determination would result in defeating the design of the testator to continue this profitable business for the daughter’s benefit. The court holds that the successor corporate trustee to be appointed herein will be vested with all the powers, authority, duties, benefits and discretions granted under the will to the original named corporate trustee. The Bankers Trust Company will be permitted to resign as trustee and to have its commissions fixed in the manner consented to by it. The petition is granted in all respects. The court will designate as the corporate trustee the First National City Trust Company as prayed for by the individual cotrustee.