dissenting. — With the conclusions of the majority of the court I do not agree, and concur in the dissenting opinion of Stearne, J., agreeing also with the grounds upon which his opinion rests. I find an additional reason for dissenting from the opinion of the majority. My views on the subject of the investment of trust funds *92in shares of common stock are set forth in my dissenting opinion filed in Donovan’s Estate, 28 D. & C. 93, 106. The principle to guide us in both cases is elaborated therein, to wit, that the power to invest in other than legal investments for trust funds must be by express authority or by language that is clear and unambiguous. I am doubtful whether so brief an expression of authority as is contained in the will before us should be construed as authorizing the investment in shares of common stock. The language is as follows:
“3. To invest and reinvest, alter, vary and change investments and reinvestments from time to time, at discretion, without confining my Trustees to what are known as Legal Investments.”
But even if it were so construed, the extent to which other than legal investments may be purchased is limited by the fifth and sixth paragraphs of the will, which are as follows:
“5. To purchase investments at a premium and to charge the premium over to principal or income, or partly to principal and partly to income, as they shall deem best.
“6. To exercise any option to subscribe for new stocks or bonds or certificates, or other instruments in the nature thereof, which may be given to them as the holders of any stocks or bonds or certificates, or other instruments in the nature thereof, belonging to my estate.”
The extent of authority to invest in other than legal investments would then be limited under paragraph 5 to the purchase of investments at a premium, which must mean bonds or other obligations, and not shares of stock, or under paragraph 6 to increase the investments owned by the estate in shares of stock, bonds, or certificates through subscription for additional shares of stock, bonds, or certificates when the increase in the capitalization of the company was effected. If this construction is not a forced and untenable one, then testator has not by clear and unequivocal language given unlimited power of investment to his trustees. In my opinion this is not a forced and untenable construction.