The opinion
IIeher, J.
(dissenting). The question is essentially one of statutory construction. Is the City Bank Farmers Trust Company of the Borough of Manhattan, New York, otherwise concededly qualified, incapable of serving as corporate co-trustee of a trust created by the will of the deceased by reason of L. 1941, c. 190, N. J. S. 17 :9A-316 (B), providing that a foreign bank "may transact business in this State only as executor or as testamentary trustee or guardian, and then only when named in a decedent’s will or codicil thereto” ?
I would resolve the inquiry in favor of capacity. The testator died a domiciliary of Rumson, New Jersey, on April 17, 1927. The will designated his three sons as trustees of the trusts therein created; and it was provided that in the event of a vacancy by death, disability or resignation, the surviving trustees or trustee shall have power to nominate as co-trustee such person or corporation as the surviving trustees or trustee "may deem best qualified and to apply to a court of competent jurisdiction for the appointment as a substituted trustee * * * of the person or corporation so nominated; provided, however, that either the person so nominated shall be a direct descendant of mine or the corporation so nominated shall be a Trust Company having its principal office in the Borough of Manhattan, City and State of New York, and generally recognized as a Trust Company of the highest class and of the strongest financial rating and resources.”
The designation of this New York trust company as a substituted trustee was a valid exercise by the surviving *599 trustee of the power of appointment conferred by the will; and I conceive it to be within the permissive policy of the statute.
The statutory design was to capacitate a foreign bank for such service when the testator had so willed; and is this not the case where, as here, the testator has directed that the substituted trustee shall be either his direct descendant or a trust company established in the Borough of Manhattan, City and State of Yew York, and otherwise qualified as he has provided in his will? The Legislature undoubtedly had in view the fulfillment of the testatorial intention; otherwise, the bar of the statute is operative. There is no discernible reason of policy which would differentiate the specific designation of such a corporate trustee in the will and the execution of the power to substitute a corporate trustee such as we have here. The testator directed the surviving trustee, in the exercise of the power, to appoint either his direct descendant or a trust company of the Borough of Manhattan, of recognized strength. I find nothing in the statute designed to defeat the fulfillment of this testamentary mandate. Its manifest policy is to exclude foreign banks from this area of service save where the testator has willed otherwise.
The reason of the law, %. e., the motive which led to the making of it, is one of the most certain means of ascertaining the true sense of its terms. State v. Morano, 134 N. J. L. 295 (E. & A. 1946). The strict letter yields to the reason and spirit of the statute. The apparent legislative intent, assessed in the context of the object of the legislation, prevails over the letter of the act. Fedi v. Ryan, 118 N. J. L. 516 (Sup. Ct. 1937). It was one of the early canons of construction that a thing within the intention of the makers of a statute is as much within the statute as if it were within the letter. Zouch and Stowell, Plow. 366, 10 Rep. 101 (1797). But a thing which is in the letter of a statute is not within the statute unless it be within the intention of *600 the makers. Bac. Ab., Tit Statule I. We look to the spirit that vivifies, not to the letter that killeth.
I would reverse the judgment.
Jacobs, J., concurs in this opinion.
For affirmance — -Chief Justice Vanderbilt, and Justices Oliphant, Wacheneeld and Burling — 4.
For reversal — Justices Hehbr and Jacobs — 2.