In re Compel an Accounting in the Estate of Varet

Scott, J.:

This appeal is taken by certain legatees named in the will of Louisa Varet, deceased, from a decree judicially settling the accounts of the executor named in said will, the particular objection made to the decree being that the surrogate refused to surcharge the accounts of said executor with the difference between the inventoried value of certain securities included in the estate, and the prices at which these securities were sold by the executor.

Louisa Varet died on August 5, 1913, leaving a last will and testament which was admitted to probate on September 18, 1913, and letters testamentary issued to the executor named therein and who is respondent here. The estate was a considerable one and consisted in part of the securities as to which the loss referred to was suffered. These securities came into the executor’s hands on September 30, 1913, and on October 22, 1913, an inventory of the estate was filed in the surrogate’s office, and on the same day affidavits and schedules were filed with the tax appraiser. Prior to January 1, 1914, securities similar to those in question were dealt in upon the New York Stock Exchange and in the open market at prices approximating those at which the securities of the estate were inventoried, sometimes a little higher and more often a little lower. After January 1, 1914, prices steadily declined. The executor, who was a lawyer, and not engaged in any business having to do with dealings in such securities, consulted from time to time, as occasion offered, with gentlemen conversant with such matters and whose opinions as to the future course of prices were worthy of consideration, and as a result of such consultation he formed the opinion that better prices could probably be obtained in the autumn of 1914 than in the spring of that year. He did, however, in March and April, 1914, sell some of the securities, yielding in this regard to the importunities of counsel for some of the legatees. Others he retained for sale in the autumn. In the meantime, however, the great war began, the Stock Exchange closed its doors, and prices of securities of all kinds depreciated seriously. The result was that when all the securities had been disposed of the prices realized showed a shrinkage of several thousand dollars below the inventoried values. For the amount of this shrinkage the appellants seek to have the executor charged personally.

There is no claim that the executor acted in bad faith, or that he reaped or could reap any personal advantage from his delay in disposing of the securities. It is specifically found: “ That the executor exercised good faith in the administration of this estate,” and this finding is not challenged by the appellants. Nor is there any basis that we can find for a claim that he neglected the duty with which he was charged. So far as appears he kept constantly in mind the fact that it was a part of his duty to form a judgment as to the proper time to dispose of the securities, and, if he delayed too long, it was due to an honest error of judgment, and to circumstances which no man could have foreseen. The general rule in cases of administrators is that an executor or administrator is entitled to take a reasonable time within which to convert the assets of an estate into cash, and what is a reasonable time depends in each case upon the circumstances surrounding the particular case, and if such an executor or administrator acts in good faith and exercises his best judgment he will not ordinarily be held personally responsible if it appears, in the light of after events, that he would have displayed better judgment, or have produced a .more favorable result, if he had sold earlier. It was said in Matter of Weston (91 N. Y. 502) that “ Where no modifying facts are shown to shorten or lengthen the reasonable time, the period of eighteen months may serve as a just standard,” although it was also held that “ While such period furnishes a convenient guide where no special circumstances exist, it must, after all, not be taken as a fixed or arbitrary standard. The . test must remain, the diligence and prudence of prudent and intelligent men in the management of their own affairs. ” There is -nothing in the present case to show that the executor failed to act up to this test. He undoubtedly acted as he did because he sincerely believed that in so doing he was acting in the best interests of the estate, and, after all, it was to his judgment and discretion that the testatrix had deliberately committed the management of her estate after her death.

The claim of the appellants is, however, and upon this their appeal mainly rests, that the language of the will was such as to impose an obligation upon the executor to make an immediate sale of the securities, irrespective of the condition of the market, and without exercising any judgment or discretion as to whether or not it would be advantageous to the estate so to do. The following is the language thus relied upon: “ It is my will and I do order and direct my executor hereinafter named, as soon as may be after my decease to sell,' either at public or private sale and convert into money all the real and personal property and estate of which I shall die seized and possessed.” Insistence is laid upon the words “ as soon as may be after my decease,” which are deemed by the appellants to be equivalent to a direction to make a sale as soon as it can be made, that is, as soon as the securities come into the hands of the executor and he is in a position to give title to a purchaser, or within a very brief time thereafter. Such a construction of the language used is not in accordance with the authorities. The words “ as soon as may be,” or words of similar import, have frequently been judicially construed, and have been held to mean “ as soon as reasonably may be.” The direction to sell and convert into cash is undoubtedly peremptory, but the time of sale is still left to the reasonable discretion of the executor. As was said in the case from which we have already quoted: “ Even where there is a direction to sell, reasonable time must be given, and what that is must be determined in each case by its own surroundings.” (Matter of Weston, supra). In Adams v. Foster (59 Mass. 156) it was said, respecting a contract for the sale of a vessel: “ The words of the covenant ' forthwith, as soon as may be ' for the largest sum that we can reasonably obtain’ allowed a reasonable latitude, as to the time and manner of making the sale,” and to the same effect is Bentley v. Ward (116 Mass. 333). Even the words “ as soon as may be,” which in a sense are more restrictive than those relied upon by appellants, have been construed to mean within a reasonable time. (Nunez v. Dautel, 19 Wall. 560; Simon v. Etgen, 152 App. Div. 404; Waddell v. Reddick, 24 N. C. [2 Ire. L.] 424.) So, also, has been construed the phrase “ as soon as possible.” (Arthur v. Wright, 57 Hun, 22; affd., 132 N. Y. 547; McNally v. Phoenix Ins. Co., 137 id. 390.) And also the words “ as soon as they conveniently can.” (Philadelphia, W. & B. R. R. Co. v. Williams, 54 Penn. St. 103; Van Rensselaer v. Van Rensselaer, 113 N. Y. 207; Matter of Hodgman, 140 id. 421.) In general where an absolute power of sale is given to an executor, the addition of words suggesting a time for its exercise does not limit the discretion of the executor. (Robert v. Corning, 89 N. Y. 225; Deegan v. Wade, 144 id. 573; Chanler v. N. Y. El. R. R. Co., 34 App. Div. 305.) In the case last cited this court said (p. 307): “ It is well settled that where an absolute power of sale is conferred upon an executor, the addition of words suggesting a time for its exercise, or indicating the testator’s desire in that regard, do not restrain or limit the action of the executor.”

Following this unbroken line of authorities we are constrained to hold that the words relied upon by the appellants are not susceptible of the peremptory construction sought to be applied to them, and that notwithstanding the use of these words in the will the discretion of the executor as to the time for selling the securities remained unfettered, provided as was the case here that he acted in good faith, without neglect and in the honest exercise of his best judgment.

For these reasons we think that the surrogate rightly refused to surcharge the accounts of the executor and that the decree should be affirmed, with costs to the executor to be paid by the appellants personally.

Clarke, P. J., and Laughlin, J., concurred; Page and Shearn, JJ., dissented.