In re Rothenberg's Trust

• Decision Date: 25 April 1941
• Docket Number: No. 233.,233.
• Parties: In re ROTHENBERG'S TRUST.
• Court: New Jersey Supreme Court

19 A.2d 639

129 N.J.Eq. 377

In re ROTHENBERG'S TRUST.

No. 233.

Court of Errors and Appeals of New Jersey.

April 25, 1941.

Syllabus by the Court.

1. A trustee under a trust created in settlor's lifetime may obtain in the Court of Chancery approval of his account of things well administered.

2. Periodic accounting of trust estates is an orderly and proper proceeding and should be encouraged.

3. A trustee may present his account by petition and rule the parties in interest to show cause against its confirmance.

Appeal from Court of Chancery.

Proceeding in the matter of the trust created by agreement between Samuel A. Rothenberg and the Franklin Washington Trust Company, dated June 23, 1930. From an order in favor of the Franklin Washington Trust Company, Esther Rothenberg, Jerome R. Rothenberg, and Samuel A. Rothenberg, Jr., an infant, by his guardian ad litem, appeal.

Order affirmed.

Harry Schaffer, of Newark, for guardian ad litem of Samuel A. Rothenberg, Jr., appellant pro se.

Milton M. Unger, of Newark, for respondent, Franklin Washington Trust Co.

Israel B. Greene, of Newark, for Esther Rothenberg and Jerome R. Rothenberg.

BODINE, Justice.

The late Samuel A. Rothenberg created in his lifetime a trust of certain life insurance policies for the benefit of his wife and children. He died May 20, 1932, and the Franklin Washington Trust Company began the administration of the trust. On July 23, 1935, the trustee presented its first petition and accounting which was duly allowed. A suit was later brought by one of the beneficiaries of the trust for an accounting. Rothenberg v. Franklin Washington Trust Co., 127 N.J.Eq. 406, 13 A.2d 667.

In September of 1940, the trustee, by petition, presented its intermediate account for approval. A rule to show cause was issued and served as directed therein. On motion, the jurisdiction of the Court of Chancery to settle the account of a trustee under an inter vivos trust was challenged. The learned Vice Chancellor determined, quite properly, that the court had jurisdiction.

The bench and bar of this State have always assumed that a trustee could file a bill in chancery and bring the beneficiary of the trust before the court and secure such relief as was necessary for its safety in the management of the estate. In 1885, Mr. Cortlandt Parker, a leader of the New Jersey bar, filed such a bill. Dod v. Pierson, Chancery files 11-487. Relief was granted as of course. See also Blair's Executor v. Green, 45 N.J.Eq. 671, 18 A. 218. In fact, the principle was so well settled that Vice Chancellor Pitney, without statement of authority, said in Dyer v. Waters, 46 N.J.Eq. 484, 489, 19 A. 129, that a trustee had it in his power at any and all times to come of his own motion and procure a settlement of his account.

It is difficult for us to understand the reasoning which suggests that a trustee should be precluded from accounting on his own motion in a court of equity. It is his duty to keep and render accounts. He must, therefore, of right be able to secure periodic repose by so doing. That there may be such voluntary accounting finds support in 65 Corpus Juris, p. 897, sec. 792; Scott on Trusts, sees. 172 and 260; Re-Statement Trusts, sec. 172. Besides N.J.S. A. 3:10-23, 3:10-30 confers such right, if more be needed. Further, the rules of the Court of Chancery, rule 268, N.J.S.A. tit. 2, recognizes...