Carwithen's Estate

Stearne, J.,

dissenting. — I dissent from the legal principle enunciated by the majority, viz, a fiduciary may invest trust res in preferred and common stock of private corporations where the trust instrument waives the restrictions imposed by legislative enactment concerning “legal investments”.

The petitions for declaratory judgments, with two selected cases (Carwithen’s Estate, no. 3089, October term, 1928; Donovan’s Estate, no. 239, July term, 1911) as vehicles, is an effort by certain corporate fiduciaries to secure judicial determination upon this subject.

Under present economic conditions…