ceeding. The letters must be regarded as valid until they are revoked." But, however, this might be ruled as to a personal appointee, the fact is that a statutory trust company is vested with express power to accept the office of fiduciary and if it cannot take an oath, the statute does not require the impossible, and as held in Re Clark12 it comes under the rule of lawful discrimination between corporations and individuals. The rule as to executors and administrators applies to guardians failing to take oath of office.13 § 16. Qualification by Deposit of Securities. The giving of a bond by an executor anciently was not the rule, but chancery assisted in this respect merely for better protection," but testamentary provisions may dispense with the requirement of a bond.15 An administrator universally is required to give bond, but omission to do so does not make his appointment void or subject to collateral attack.16 The same rule applies to failure by guardians to give bond." It must be deemed, therefore, largely a directory provision of the statute that any such appointee as an 11. Gallagher v. Holland (1888), 20 Nev. 164, 167, 18 Pac. 834. See, also, Brooks v. Walker (1848), 3 La. Ann. 150; Dayton v. Johnson (1877), 69 N. Y. 419. 12. 195 Pa. St. 520, 46 Atl. 127, 48 L. R. A. 587. 13. Way v. Levy (1889), 41 La. Ann. 447, 6 So. 661. 14. Slanning v. Style (1734), 3 P. Wms. 334, 24 English Reports 1089. 15. Bowman v. Wooton (1847), 8 B. Mon. (Ky.) 67; Amiss v. Williamson (1881), 17 W. Va. 673. 16. Leatherwood v. Sullivan (1886), 81 Ala. 458, 1 So. 718; Jons. v. Harbison (1896), 112 Cal. 260, 44 Pac. 572; Harris v. Chipman (1893), 9 Utah 101, 33 Pac. 242. 17 In re Chin Mee Ho (1903), 140 Cal. 263, 73 Pac. 1002; Cuyler v. Wayne (1879), 64 Ga. 78; Hunt v. Insley (1895), 56 Kan. 213, 42 Pac. 709; Howerton v. Sexton (1889), 104 N. C. 75, 10 S. E. 148. administrator or a guardian should give bond, and under the principle of distinction between corporations and individuals as fiduciaries, it remains to be considered, whether some substitute for an individual's bond with personal sureties may be taken, under express statutory authority, security in lieu of such bond. The general bond of a public administrator suffices instead of a bond in each estate administered,1o and even it has been held that the official bond of a sheriff will cover an administration committed to him ex officio. If as between individuals as officials and individuals in their private capacity distinction in requirement to qualification as a statutory fiduciary may be made, a fortiori it may be urged that there may be made distinction between persons and corporations in this regard. It amply appears, from cases hereinbefore referred to, what are the reasons for distinction between corporate trustees and personal trustees in the giving of bonds, and these cases need not again be cited. A state may control the devolution of property of decedents, even to the extent of forbidding all right of inheritance therein," and therefore whatever discriminations made by the law as to the rights of parties in a decedent's estate do not violate due process of law.20 § 17. Consolidation, Merger and Successorship of Trust Companies-Status With Reference to Fiduciary Business of Constituent Companies. This would be a matter of ordinary corporation law, were it not for the rule that the duties of a trustee imply per 18. Healy v. Lassen County Super. Ct. (1900), 127 Cal. 659, 60 Pac. 428; Buckley v. McGuire (1877), 58 Ala. 226; State v. Purdy (1877), 67 Mo. 89. 19. Plummer v. Coler (1900), 178 U. S. 115, 44 L. Ed. 998. 20. Magoun v. Illinois Trust & Savings Bank (1898), 170 U. S. 283, 42 L. Ed. 1037. 9921 sonal confidence and cannot be assigned to strangers. For that reason it is frequently necessary to consider whether a consolidation leaves the constituent companies in existence, and if not whether the new corporation can administer the fiduciary business committed to its predecessors. This is largely a matter of construing the statutes of a particular state, for "any consolidation, purchase or merger by which it (a trust company) acquires the franchises of another corporation must *** have statutory authority.' In the decision from which this is quoted the court held that the consolidation of two trust companies under the Illinois statute effected the dissolution of the original corporations and brought a new corporation into existence "possessing the property rights and franchises and assuming the liabilities of those passing out of existence." The issue in that case was whether the consolidated company must pay a state tax for its increased capital or on its entire capitalization. As it was held that a new corporation was created, a fee on the entire capital was exacted. In another Illinois case,22 it was held that one appointing a trust company in à fiduciary capacity impliedly authorizes its successor by consolidation to execute the trust. There the court said: "The material question here is whether the general rule that a trustee cannot delegate his authority to another is an obstacle to the exercise of a power by the appellee to act as executor or trustee, where one of the constituent corporations was named as such. That general rule rests upon the ground that the selection of a 21. Chicago Title & Trust Co. v. Doyle (1913), 259 Ill. 489, 102 N. E. 790. 22. Chicago Title & Trust Co. v. Zinser et al. (1914), 264 Ill. 31, 105 N. E. 718. trustee implies personal confidence in his discretion and judgment. If a power is given to an executor or trustee which is not ministerial, or given for the purpose of executing a declared trust, which the court can enforce, but which involves the exercise of discretion and judgment, the power cannot be delegated or transferred to another either by the trustee or a court. The rule, however, cannot be applied to the case of a corporation, because the element of trust in the judgment and discretion of an individual is entirely wanting. A corporation is without personality; and if it is selected as trustee or executor, there can be no reliance upon individual discretion or even upon the continuance of the same administration. Etta Nelson, in naming the Real Estate Title & Trust Co. as executor and trustee, knew that its directors, officers, and stockholders might change from time to time, and that the statute authorized a change of name or place of business, enlargement, or change of the object for which the corporation was formed, an increase or decrease of capital stock, or change in the number of shares or par value, increase or decrease of the number of directors, and the consolidation of the corporation with any other corporation then existing or that thereafter be organized. She therefore contemplated that these changes might occur, and that the Real Estate Title & Trust Co. might be consolidated with some other corporation such as the Chicago Title & Trust Co., and that it would thereby cease to exist, and become a component part of the new corporation." Under the New York statute it was held23 that a merger extinguished the merged trust company (The 23. Matter of Bergdorf (1912), 206 N. Y. 309, 99 N. E. 714, affirming 149 N. Y. App. Div. 529, 133 N. Y. Supp. 1012. Morton Company) so that the successor trust company (The Guaranty Company) could not validly base an application for letters testamentary to an estate to which the merged corporation had been appointed as executor, upon the ground that it was a continuation of or identical with the merged corporation. But the court found, on other grounds, that the letters should issue to the successor trust company. They said: "The testator in making the will and appointing the executors was and remained throughout the following years of his life subject to the relevant existing statutes." The right to make a testamentary disposition of property is not an inherent right; nor is it a right guaranteed by the fundamental law. Its exercise to any extent depends entirely upon the consent of the Legislature as expressed in their enactments. It can withhold or grant the right, and if it grants it, it may make its exercise and its extent subject to such regulations and requirements as it pleases. It may declare the rules under which the administration of the estate may be committeed to executors and make compliance with them mandatory. A testator intends and must be deemed to intend the results which the operation of those rules produce. They affect the testamentary disposition and provisions as though embodied in the will; and in case the cited sections of the Banking Law provide that the merger of the Morton Company transferred to the Guaranty Company the right, privilege or interest, if any, which the designation of it as an executor originated and thereby entitled the latter to the executorship, thus it was that the testator intended. In reading the sections we do not regard the intention of the testator, but that of the Legislature. Their 24. Compare Matter of Stikeman (1905), 48 N. Y. Misc. 156. |