The trustee purchased “nonlegal” stocks of private corporations as part of the trust res. Upon an accounting objection was made to the investment as being unauthorized. The trustee relied upon the fifth item of the will reading as follows:
“FIFTH: In the general management of my estate I authorize my Executor and Trustee to retain any investments that I may have made, and I direct that my Trustees may invest in such securities as in their judgment are safe and proper, without restriction to those designated as “legal investments”. I also authorize my Executor and Trustee, in their discretion to take part in any reorganization of any Company whose securities may be held by them, and to deposit such securities with any Committee and to exchange the same for other securities under the terms of such re-organization, and to pay any necessary and proper assignment for carrying out such plans.”
*530It was conceded that decedent possessed no common stocks at the time of his decease. No allegation was made as to the improvidence of the investment. The auditing judge ruled, because testator had not possessed common stocks at the time of his death, that such extrinsic circumstance must be considered in construing the meaning of the fifth item of the will; that such meaning was, therefore, rendered doubtful as to testamentary intent authorizing investment in stocks of private corporations, and must be resolved against it. He surcharged the trustee and directed that such investment be replaced by cash.
A majority of the court (despite difference in opinion as to the true legal character, of corporate stock as a “security” or “investment”) are of opinion that it is bound by the decision in Wood’s Estate, 130 Pa. Superior Ct. 397, which unequivocally decided that common stocks of private corporations are securities or investments within the meaning of the testamentary provisions (p. 401) :
“ ‘My executors and trustees in their discretion may retain, obtain, hold, invest and reinvest in any securities or investments, and they shall not be confined to such securities or investments as are known or considered lawful and valid securities or investments for trustees in Pennsylvania . . .’ ”.
This decision is of added authority when it is observed that an allocatur was refused by the Supreme Court: 130 Pa. Superior Ct. xxxi.
The exceptions are sustained and the adjudication, as herein modified, is confirmed.