20 Barb. 100 | N.Y. Sup. Ct. | 1855
The testator made his will in 1829, and died January 28,1836. On the 4th of February, 1837, the defendant was appointed administrator with the will annexed. The testator, at his decease, held 1000 shares, of $100 each, in the stock of the Bank of the United States—the National institution. The charter of that bank expired on the 4th of March, 1836. On the 18th of February 1836 the state of Pennsylvania chartered “ The United States Bank,” the institution of that state. This last institution was intended to take the place of the former, and it was generally supposed that it would do so, to a great extent; those who disliked the first extending an equal dislike to the second, and those who had confidence in the first generally reposing an equal confidence in the second. The testator, by the second clause in his will, directed his real and personal estate to be converted into money, as soon as convenient, after his decease, and the proceeds to be securely invested in the most productive manner, “leaving it, however, to the discretion of my said trustees to suffer such part of my
This transaction, if the administrator had actively engaged in it, would have been only an exchange of one security or investment not approved by the courts, for another of the like nature, and generally considered at the time, equally safe, and would at that time appear a much better arrangement than a contest with the old bank for the payment of the testator’s interest in the stock—a contest which probably could not end until all the claims against the bank had been settled; and then (if an opinion entertained by many was correct, and the old bank was really insolvent) would have resulted in a total loss of the stock and the payment of heavy costs and counsel fees. In this case quite as much as in Thompson v. Brown, or in Brown v. Campbell, the administrator was justified in suffering the exchange of investments to be made, and ought not to be held accountable for any supposed loss that has resulted. He had no alternative but to suffer the change which at the time must have appeared expedient, or to enter into a controversy which probably would have resulted no better than the course which he adopted.
Could an executor be blamed who allowed his testator’s shares in the stock of the chartered Chemical Bank to become part of the stock of the new bank under the general law. It is believed that an eminent lawyer, who held such stocks as executor threatened a suit against the new bank to compel it to allow him to come in and participate in its stock. Yet the banks are,entirely distinct in interest. So it is believed that generally, when the charters of old banks have expired, their stock has been transferred to the new bank of the same name, unless express dissent was manifested; and that such dissent seldom occurred. This shows that the administrator was guilty of no negligence in not interfering with the transfer that was made.
The bill should be dismissed; and -as the administrator is not in fault and should not be subjected to the payment of his solicitors’ costs, it is with costs.
Mitchell, Clerke, and Cowles, Justices.]