Liberty Title & Trust Co. v. Plews

• Decision Date: 10 September 1948
• Docket Number: 158/135.
• Parties: LIBERTY TITLE & TRUST CO. v. PLEWS et al.
• Court: New Jersey Court of Chancery

61 A.2d 297

LIBERTY TITLE & TRUST CO.

v.PLEWS et al.

158/135.

Court of Chancery of New Jersey.

Sept. 10, 1948.

Supplemental opinion.

Exceptants' prayer for surcharge disallowed.

For original opinion, see 142 N.J.Eq. 493, 60 A.2d 630.

Starr, Summerill & Lloyd, of Camden (Allen B. Endicott, Jr., of Atlantic City, of counsel), for complainant.

Charles C. Babcock, of Atlantic City, for defendants Lillian Welzel and Vera Welzel Contsch.

Wm. Elmer Brown, Jr., of Atlantic City, for defendant Louise Plews.

Bolte & Repetto, of Atlantic City, for defendants Joseph W. Wells, and others.

Albert N. Shahadi, of Atlantic City, for defendants Frank P. Wells and Anna Wells, and pro se guardian ad litem for Mary Wells.

Lloyd, Kern & Perskie, of Atlantic City, for defendant Childrens Seashore House Fund Club.

EANEMAN, Vice Chancellor.

It has been brought to the attention of the Court since the filing of the principal opinion herein, 142 N.J.Eq. 493, 60 A.2d 630, that the question of surcharging the accountant for failure to invest cash which came into its hands subsequent to the death of the life tenant on May 15, 1944, had not been determined. As above noted, the life tenant died on May 15, 1944. On that date the trustee had cash in the amount of $1,095.52 uninvested. This cash fund thereafter increased until at the date of the submission of the matter to this Court it was approximately $137,000.00. Exceptants contend that the accountant is chargeable with interest on this sum because of its negligence and failure to properly invest, so that some income might be received by the estate.

As above set forth, the life tenant died on May 15, 1944. As was disclosed by the testimony, thereafter there were numerous conferences held between the trust officer of the Liberty Title & Trust Company and several Philadelphia counsel representing the remaindermen, and in some instances the remaindermen themselves. It was apparently then contemplated by all parties concerned that the questions involved could be disposed of in a reasonably expedient fashion, so that distribution could be made at an early date. As a matter of fact, counsel for the estate of Lillian W. Seidel apparently objected to further investment of the cash fund, since distribution would then have to be made in kind rather than in cash.

During the trial of this matter, on several occasions the accountant attempted to obtain a consent from the several interested parties to the investment of the cash, but was unable to obtain such voluntary consent. The Liberty Title & Trust Company did thereafter, in June of 1946, make application to the Orphans Court for instructions concerning the investment of the cash then on hand. Such instructions were given.

It is to be noted that upon this application the exceptants, although they did not object, refused to affirmatively consent. All of the parties, not only the accountant but the exceptants as well, did not anticipate that the actual trial and final disposition would extend over as protracted a period as was actually consummed. At a pre-trial conference, the maximum estimated time which would be required for the trial which could be agreed upon by all parties concerned was three days. The trial of the matter was commenced on July 10, 1945 and continued on July 11 and 12, 1945. On October 3, 1945 the final hearing was finally had, other hearings having been had in the interim. The actual days that this matter was litigated in court, including not only the trial of the primary issues and the argument on the admissibility of documentary...