dissenting. — The action of the majority of the court in reversing its decision, reported in 37 D. & C. 182, following reargument which was allowed because of possible departure or variation from or overruling of Sea-mans’ Estate is unwarranted and unjustified. Such action constitutes without cause a shift of position both on the law as well as the conclusions of fact and the mixed questions of law and of fact involved.
In Clabby’s Estate, 338 Pa. 305, the Supreme Court reversed on three grounds, acquiescence, no negligence, and authority contained in the will. Neither the majority nor the concurring opinion expressly states that, if the first and third elements, viz., acquiescence and authority in the will were absent, the decision would have been the other way. Had the finding of no negligence been the substantiating reason, the concurring opinion expressing disapproval of such finding would have been a dissenting opinion. It is remarked that both majority and concurring opinions cited Seamans’ Estate with approval. That the finding of. no negligence was not a substantiating factor in the opinion is stated on page 313 of Clabby’s Estate, where Justice Barnes says:
*245“In view of our conclusion upon the question of acquiescence, it is unnecessary to determine whether the retention of these stocks by the trustee was negligent.”
I, therefore, fail to gather from these circumstances why we are justified in finding therein any authoritative departure from Seamans’ Estate, 333 Pa. 358.
As to Shipley’s Estate (No. 1), 337 Pa. 571, the account was that of an executor whose responsibilities are, as Judge Stearne points out in the majority opinion, different from those of a trustee. Taylor’s Estate, 277 Pa. 518, reminds us (p. 526) : “the rule in respect to holding non-legal securities owned by a decedent, which governs executors and other personal representatives, with their presumably short-duration trusts, should, for obvious reasons, be more liberal than that governing trustees fixed with the duty of managing an estate during a long period of years.” Shipley’s Estate, therefore, cannot be said to alter Seamans’ Estate. Consequently, in my opinion, if we were right in our previous opinion, the present majority decision is wrong. Since the facts of this case are four-square with Seamans’ Estate, it follows that the majority refused to follow that decision. I prefer to recognize it as authority and, therefore, to follow it.
The majority opinion condemns what it terms the injustice of the result of Seamans’ Estate in that it “changes the rules after the start of the game”, i. e., it establishes a new rule of time within which presumptively a trustee must dispose of retained non-legal investments, even though he in good faith exercises common skill, prudence, and judgment. To my mind, no such new rule is therein contained. True, the law is and always has been: (1) Conversion within a reasonable time; (2) a reasonable time depends upon the facts of each case, and the trustee is exonerated if he fails to sell in the exercise of common skill, common prudence, and common caution.
The applicable legislation, which is not considered in the majority opinion, but which must be regarded as con*246trolling, is briefly given in the footnote to Seamans’ Estate, at page 863, as follows:
“The Fiduciaries Act of 1917, P. L. 447, section 49 (e) 2, provided that ‘Where stocks, bonds, or other securities have been distributed in kind ... to any fiduciary, it shall be the duty of such fiduciary to use reasonable diligence in converting such securities as shall not be investments now or hereafter authorized by law.’ The Act of May 28,1937, P. L. 1037, section 3, amending section 41, par. 1, clause a, subsection 13, of the Fiduciaries Act (as added by Act of July 2,1935, P. L. 545) provides that the fiduciary shall not be liable if he ‘exercises due care and prudence in the disposition or retention of any such nonlegal investment.’ Section 4 eliminates the clause in the Fiduciaries Act requiring the use of reasonable diligence, and provides that if the fiduciary be doubtful as to the propriety of selling the securities he may apply to the orphans’ court for authority and direction to retain them.”
The legislative history thus enumerated, it will be observed, starts in 1917 with a more rigid rule which is relaxed considerably by subsequent amendment. No “change of the rules after the start of the game”, is therefore involved, certainly none to the detriment of fiduciaries.
The majority opinion misses the significance of Justice Stern’s remarks on page 362 of the report of Sea-mans’ Estate, as follows:
“Notwithstanding the broad tenor of some of the language thus quoted, a fiduciary is not justified in inferring that the principle which exempts him from liability for acts performed in good faith and with ordinary prudence necessarily applies wherever there is a failure to convert nonlegal securities within a reasonable time. The law imposes limitations upon ‘ordinary prudence’ in such cases in order to preserve the differentiation between nonlegal and legal securities, and between fiduciaries and others as to the right to speculate.”
*247That a new rule is not laid down in this decision is evidenced by the principles enunciated on page 363:
“1. If a fiduciary receives nonlegal securities as part of the trust estate, he is vested by law with a measure of discretion and allowed to some extent to exercise his own judgment as to the wisdom of selling the securities under prevailing market conditions. However, in the absence of exceptional circumstances, he should convert them promptly. This does not require that he sell them immediately, as ‘under the whip of the law,’ but it means that he should not continue to hold them indefinitely merely because he believes that they will appreciate in value and would therefore retain them if they were his own securities.
“2. Under certain circumstances a fiduciary is excused from the prompt sale of nonlegal securities which is otherwise required. Such circumstances cannot be completely catalogued; they must be considered in each case as they arise.”
He then goes on to illustrate such circumstances, including that where a sale could be effected only at a sacrifice but there is a reasonable likelihood of a return to stable conditions which will restore the normal value. This language, to my mind, is the application of the rule of “reasonable diligence” as distinguished in phraseology from the rule of common prudence and skill which, to my mind, makes the rule one of logic and of reason in preserving the main elements of the question, viz., necessity of conversion of nonlegals as distinguished from legáis, as to which the rule of common prudence obtains without emphasis on prompt sale. The rule of conversion of legáis retained by a trustee is the same as that of legáis purchased by the trustee — ordinary care, common skill, and prudence, but certainly cannot now and never could by any process of reasoning be held to apply to nonlegals either in retention or original purchase by a fiduciary.
Seamans’ Estate simply emphasizes this greater duty and higher degree of care regarding nonlegals.
*248The majority opinion in its earlier phases refers to primary duty to convert and approves President Judge Van Dusen’s language in O’Brien’s Estate, 18 D. & C. 501, where he says (p. 502) : . it is the duty of a trustee to sell nonlegal securities as soon as they can be sold at a reasonable price”, but fails to apply it. This I believe is because the majority are so impressed with the rule of common skill and prudence that they ignore the emphasis placed on the necessity for conversion and further forget, as stated in Taylor’s Estate, supra, and Shipley’s Estate, that each case is sui generis. In other words, that the doctrine of common skill, caution, and prudence has a qualifying clause “under the circumstances”. The special circumstance here is that the investments are nonlegals. As Moschzisker, C. J., pointed in Taylor’s Estate, supra (p. 529) : “The law has erected a guidepost for trustees to observe, reading ‘Legal Investments’ ”. This guidepost was ignored by the trustees in this estate, as pointed out hereinafter. Another element overlooked in the majority opinion is that the present trustees were vested with the knowledge that because testator did not in his will authorize retention he desired the estate to be invested in securities authorized for the investment of trust funds; this is especially true where the trust is to continue over an extended period of time: Seamans’ Estate, supra. This principle takes on added significance here because, though testator did not die until a year after the financial collapse of October 1929, he nevertheless withheld from his trustees authorization to retain non-legals.
The only new doctrine that Seamans’ Estate introduces is the presumptive period of one year. In so doing it follows the cited authority in the Restatement of Trusts. It is clear that the one-year period is not inflexible but is to be applied or varied according to the circumstances. It is but a presumption operating to shift the burden of proof to the fiduciary to justify the retention for a longer period of time and is borrowed from the rule fixing the *249presumptive period for sales by executors or administrators. There is little, if any, room to quarrel with this. It is merely a more specific danger signal to fiduciaries who otherwise might think they are entitled to hold in perpetuity as did the trustees in this case, who still retain all the securities constituting the subject matter of this controversy.
Irrespective of the question whether Seamans’ Estate fixes a higher degree of care than obtained theretofore, I am of opinion that under either theory these trustees must be surcharged. I cannot subscribe to the conclusions that “At no time is it apparent in the testimony that the retention by the trustees was by way of speculation and to hold on in order to secure a better price than the securities were reasonably worth.” This conclusion is made without assigned reasons of fact or of law and is the exact reverse of that found in Judge Stearne’s prior opinion. Epitomizing the findings therein reached, he said (p. 187) : “However, the crux of the case is that at least by October 1933, the loss had definitely been established.” If that was the crux of the situation in the prior opinion, it is the crux of the situation now and constituted a finding of fact which we then unanimously approved, because it is supported by ample evidence. Therefore, the decision not to convert at that time — October 1933 — but to continue to hold thereafter, constituted speculation as a matter of law. There is no new evidence to the contrary before us and I, therefore, fail to understand and refuse to follow what is now the diametrically opposite conclusion.
The chief trouble with the present trustees was that they were proceeding up a blind alley in their investigations and inquiries into the prudence of holding or selling. In doing so, they neglected the primary legal duty to sell. The finding of the auditing judge is supported by the identical finding based upon identical facts in Seamans’ Estate, supra, at page 366, wherein, commenting on the cessation of dividends on the securities in that estate *250during 1931 and 1932 and the slump of market prices, it is stated:
. . appellant should have realized that the probable duration of the depression could not be foretold, but that it certainly was not merely a temporary condition and that any conclusion as to whether stocks would recover or sink to still lower levels could be based only on guesswork.”
The majority do not even agree with the liberality of Judge Ladner, as auditing judge, in giving the present trustees the benefit of two more years’ opportunity to observe this condition than the one year allowed in Sea-mans’ Estate.
Starting with the fact that Mr. Casani, one of the trustees, was also a remainderman, we can assume that he was at worst not going to injure his own financial stake in the estate. However, the auditing judge has questioned only three aspects of his testimony: (1) His statement that he was not speculating; (2) that Mr. Loesche, of the Girard Trust Company, continually advised him not to sell; and (3) that he received similar advice from others. Mr. Casani’s statement that he was not speculating is obviously a conclusion which is effectually shattered by his own testimony. Cross-examined as to the annual statements of the companies whose securities he held as trustee, he admitted current knowledge of the substantial operating losses of the companies and of diminishing dividends, which facts should have convinced him that the reasonable worth of the securities was constantly diminishing, and that there was no “reasonable likelihood of an early return to stable conditions which will restore the normal value”. He summed up his attitude in a statement which to my mind is the coup de grace of his whole case (p. 191) : “We were merely trying to get for this estate the inventory figures of 1930”, which values were fortunately exceeded in the sale of the Pennsylvania Salt stock and Bunte Brothers stock. The language of President Judge Van Dusen in O’Brien’s Estate, *251supra, is pertinent at this point (p. 502) : “He is not to speculate, and is not to hold on in expectation of a better price, no matter hoto much information he may have, and how considered his judgment may be” (Italics supplied.) The trustees suited their actions in defiance of this word.
In disbelieving Mr. Casani’s statements that he continually obtained the advice of Mr. Loesche, we have Mr. Loesche’s own word that he discussed the securities with the trustees, but did not advise them, except in December of 1931, when he stated that the bottom had then been reached. The action of the auditing judge in believing Mr. Loesche and disbelieving Mr. Casani on this point should be sustained as a finding of fact. The majority now accept Mr. Casani’s own repeated protestations that he was not holding on merely in hope of saving a loss of corpus and that he was only following advice, though his own admissions and his actions are in complete contradiction. In my opinion, the conclusion thus arrived at is not only unjustified but illogical.
Outside of the Girard Trust Company, the others whom Mr. Casani testified he consulted it appears did not know that the stocks constituting the subject matter of the inquiries were nonlegal investments and, therefore, it is not surprising that they advised the trustees not to sell them, as They are good securities, they will come back”. Such advice, therefore, is not such as a reasonably prudent man would have relied upon. It is most significant that in these inquiries the trustees never asked the persons consulted when in their opinion the securities would come back, in an endeavor to ascertain when they should fulfil their legal obligation to sell promptly. To my mind, the conclusion is inescapable that the trustees decided to retain them until the inventory values of 1930 could be realized.
For these reasons, I believe all the exceptions should be dismissed.
Ladner, J., joins in this dissent.