language is broadly and conspicuously comprehensive. The merger transferred to the Guaranty Company "all and singular the rights, franchises and interests of" the Morton Company "in and to every species of property, real, personal and mixed, and things in action thereunto belonging," and empowered the Guaranty Company to "hold and enjoy the same and all rights of property, franchises and interests in the same manner and to the same extent" as the Morton Company would if it "should have continued to retain the title and transact the business of" the Morton Company. This language means not only that every right, privilege, interest or asset of conceivable value or benefit then held by the Morton Company (except the right to be a corporation) should pass into and be absorbed by the Guaranty Company, but also that every right, privilege, interest or asset of conceivable value or benefit then existing which would inure to the Morton Company under an unmerged existence should inure to the Guaranty Company. Nothing appurtaining to the Morton Company was to be lost, forfeited or destroyed.

The designation of the Morton Company as an executor created a privilege or an interest in the estate of the testator appurtaining to that company. The privilege or interest was not complete or vested; it was incomplete, potential and ambulatory. From it, undisturbed until the testator's death, issued the absolute interest of an executorship and the power to participate in the control and administration of the testator's estate and receive the legal fees and commissions. That interest had no source of origin other than the will and the designation. The testator's death did but complete and vest that which theretofore existed. It existed, although in an incom

plete, imperfect and dependent condition, from the making of the will and at the time the merger of the Morton Company was consummated. Ignorance on the part of the Morton Company of its existence did not affect it. Through it that company would have been an executor and entitled to the letters testamentary if it had "continued to retain the title and transact the business of such corporation." The merger transferred it to the Guaranty Company and in effect substituted that company for the Morton Company. The Guaranty Company was entitled to hold and enjoy it even as would the Morton Company under an unmerged existence. By virtue of the statute, effective as a part of the will, the Guaranty Company was designated as an executor, and as such is entitled to receive the letters testamentary."

Since the above decision was rendered the New York Banking Law has been amended, so as to specifically provide for the result reached by the court.25

25. New York Banking Law, Sec. 188, Subdivision (1) Appendix, page 289.

CHAPTER V

Diversity and Limitations of Powers, Ultra Vires

§ 18. Powers of Trust Companies in General. It seems not altogether necessary in a work, where mainly are considered powers of statutory trust companies, under specific conferring of authority, to treat of a corporation's general power to become a trustee. But if we ascertain either that it may generally upon appointment be vested with the title and powers of a trustee, or that such vesting will pass if its purposes are "germane to the objects of the incorporation," or "relating to matters which will promote and aid and perfect those objects,"" then we are assisted in construing statutory terms claimed to authorize such companies to become trustees. Even though a corporation is not expressly empowered to become a trustee, it may be such where it has any interest, direct or indirect, in the administration of a trust, and the converse is true, that where it has no interest and the purposes of the trust are wholly foreign, it cannot take as trustee.*

1. Vidal v. Girard (1844), 2 How. (43 U. S.) 127, 11 L. Ed. 205; Jones v .Habersham (1883), 107 U. S. 174, 189, 27 L. Ed. 401.

2. Sheldon v. Chappell (1888), 47 Hun. 59, 13 N. Y. S. N. Y. S. 35. South New Market M. Seminary v. Peaslee (1844), 15 N. H. 317.

While it, of course, is true, that ordinarily what are called Trust Companies, may, and, as I have suggested, should be organized for other than merely trust purposes, yet so far as a department of their business extends, the word "trust" would seem to have the meaning it has at common law.

Thus it was said by the Supreme Court of Missouri* that: "The fact that respondents are incorporated as trust companies seems to be inconsistent with the relation of that of debtor and creditor, and in favor of the relation of trustee and cestuis que trust," and: "Trust companies have no right to receive deposits (construing its own statute), but can only receive money in trust and thereby the relation of trustee and cestuis que trust is established between the company and the customer."

This is well illustrated in a late case in the supreme court of Wisconsin." It appears in this case that the state commissioner of banking took possession of all of the property of a statutory trust company, and actions were brought for the appointment of trustees. The several plaintiffs stood to the company as follows: One claiming assets in the hands of the commissioner through a trust deed executed to the company to secure indebtedness; another, that the company was trustee under a will and as such trustee had invested moneys of the estate in inadequate security; the third, the same as the first. They also sued in behalf of numerous cestuis que trustent who were scattered. The complainants claimed that the commissioner had no right to administer said trusts and they asked for the appointment of

4. State ex rel. v. Lincoln Trust Co. et al. (1898), 144 Mo. 562, 46 S. W. 593.

5. Sullivan v. Kuolt (1914), 156 Wis. 72, 145 N. W. 210.

another suitable trustee. The trial court sustained a demurrer to the several complaints.

The Supreme Court said: "The Trust Company was engaged in business of various kinds, among others that of executing trusts, whether such only was imposed on it by a court by agreement of parties or by operation of law. Whenever in the opinion of the commissioner of banking it becomes insolvent or unsafe, it is his duty to take charge of its property and its business. But for what purpose does he take charge of it? The statute is explicit on this point. It is for the purpose of liquidating it, and not for the purpose of carrying it on. * The whole statutory scheme is to wind up the business of the insolvent corporation as soon as is consistent with good business management. But it must be liquidated and closed, that being the purpose for which possession is taken. To do that, he must settle with the cestuis que trustent, or a new trustee, and turn over the unexecuted part of the trust to them or him. He must also settle with every other creditor of the Trust Company. This implies two parties: on the one hand the commissioner of banking, representing the stockholders of the Trust Company as well as the creditors generally, and on the other, the party settled with-in the case of numerous cestuis que trustent most conveniently their trustee. * * Some of the trusts set out in the complaints will by their terms, continue for many years and call for duties wholly foreign to that of the commissioner of banking." The court further says the insolvency and the taking over of the business of the company "terminated its trust capacities, and its disqualification to act as trustee still exists."

This opinion seems to me to involve that the trust