229 A.D. 738 | N.Y. App. Div. | 1930
Decree of the Surrogate’s Court of Kings county modified by reducing the amount of the surcharge as hereinafter stated, and as so modified affirmed, in so far as appealed from, with costs to special guardian against United States Trust Company of New York and Richard S. Earl as executor. The court is of the opinion: (1) That the decree of July, 1914, was not an adjudication of the exercise of reasonable prudence in holding the 421 shares of Nassau Bank stock, or the substitute thereof, 210½ shares of Nassau National Bank stock, from the time of receipt from executors up to the time of filing the prior account of May, 1914, because no such issue was tendered by the account; (2) that the purchase of 74½ shares of Nassau National Bank stock at $150 per share, and the sale of rights at $40 per share, which were set forth in the account filed May, 1914, were adjudicated by the decree of July, 1914, and may not be attacked here; (3) that the decree of July, 1914, was not an adjudication of the exercise of reasonable prudence in holding said 74½ shares from May, 1912, to May, 1914; (4) that Special Guardian’s Exhibit 1 was admissible in evidence (Howard v. McDonough, 77 N. Y. 592; Civ. Prac. Act, § 374-a ), and is considered by this court in coming to its conclusion; (5) that facts and circumstances showing that the condition of the bank was seriously impaired in 1912, should have indicated to Trustee Earl, who was president of the bank, that this stock should have been disposed of that year, although it was quoted during that year from May to December at from ,$204⅛ to $220 per share, which was in excess of the price paid by the estate for the 74½ shares bought in May, 1914; (6) that the trustee trust company had