248 Mass. 319 | Mass. | 1924
In the first paragraph of the will of Alice Tobey Jones, late of Wareham, in this Commonwealth, the Guaranty Trust Company of New York and the testatrix’s husband, John Hall Jones, were named as executors and trustees. The Guaranty Trust Company declined the appointment as executor, and letters testamentary were issued to John Hall Jones on December 11, 1922.
By the fifth paragraph of her will the sum of $250,000 was bequeathed to the trustees to invest in State or municipal securities, the income to be paid quarterly to her husband during his life and upon his death the principal and accrued income to be paid to the Bide-A-Wee Home Association, Inc., of New York City. Under the fifth paragraph, separate petitions for appointment were presented to the Probate Court. The petition of John Hall Jones was allowed. The right of the Probate Court to appoint the Guaranty Trust Company, trustee under the will, was reported to this court. It was found that the Guaranty Trust Company is a foreign trust company, organized under the laws of the State of New York, with its usual place of business in New York City; under its charter and the laws of New York it is authorized to act as executor and trustee. Its petition and bond are in due form and it is willing to file an appointment of an agent under G. L. c. 203, § 15. Thirty-five other trusts were created by the will of Mrs. Jones, similar to the trust created by the fifth paragraph, in each of which the same trustees were designated. The aggregate corpus of these trusts is about $3,000,000. The trust must be executed both in-the'State of New York and in this Commonwealth. No certificates under G. L. c. 26, § 5, G. L. c. 167, § 37, G. L.
A trust company incorporated in this Commonwealth may have a trust department. By G. L. c. 172, § 56, no such trust company shall exercise the powers and duties described in §§ 50-52, until it has received written authority therefor from the board of bank incorporation. G. L. c. 167, § 37, provides: “ No foreign banking association or corporation shall transact business in this Commonwealth until it has received a certificate from the board of bank incorporation, authorizing it so to do. The said board may grant such certificate conditioned upon the performance of such requirements as to auditing as said board may prescribe.” The Guaranty Trust Company is a foreign banking association within the meaning of G. L. c. 167, § 37; and it has not received a certificate from the board to “ transact business in this Commonwealth.” Assuming, but not deciding, that a foreign corporation could be appointed trustee under the will creating the trust for the benefit of the testatrix’s husband, the petitioner has not complied with the statute, and if the administration of this trúst involves the transaction of business, as the words are used in the statute, its bond cannot be approved and it cannot be appointed to the trust.
In Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 379, the question involved was whether a foreign corporation was engaged in or soliciting business in this Commonwealth so that service of process Was made; at pages 384, 385 it was said “ ‘ each case of this kind must depend upon its own facts.’ . . . ‘ the business must be such in character and extent as to warrant the inference that the corporation has subjected itself to the jurisdiction and laws of the district in which it is served.’ ” In Attorney General v. Boston & Albany Railroad, 233 Mass. 460, the words “ doing business for profit ” were construed and the authorities bearing on the question reviewed.
As trustee under the will of Mrs. Jones, the Guaranty Trust Company would have active duties to perform extending over an uncertain period of time; the funds would
Petition dismissed.