(dissenting). An emergency demanding the hasty dictation and submission of this dissent prevents an exhaustive analysis of the lengthy record presented. Suffice it to say that the scrutiny made in the consideration of this matter showed no such flagrant violations as found by the majority.
The main witness against the respondent was William A. Kaufmann. The record reveals his credibility was entirely destroyed and not accepted by any one.
Miss Breckwoldt retained considerable acumen and mental ..poise to the day of her death. Eor 17 years she had been satisfied with the services rendered by the respondent and never once had she complained about the establishment or the maintenance of the trust, although she was cognizant and had full knowledge of it. And after she departed, the beneficiaries under the testamentary trust, which predominantly consisted of the assets of the inter vivos trust, expressed themselves as completely satisfied with the administration of both trusts and the handling of funds, and opposed Herr’s removal as testamentary trustee and executor. As to the inter vivos trust, if there were any unorthodox investments, they were sanctioned by the instrument itself, and the income obtained therefrom was segregated in the account designated “Dougal Herr Special.” There- was neither fraud nor negligence on the respondent’s part in the disbursal of trust funds to Miss Breckwoldt, and certainly *302there is no evidence substantiating a finding of blatant misappropriation.
There were certain gaps in Herr’s records, but some were caused because bank photostats had been destroyed, which Herr, of course, could not anticipate. There were sufficient records remaining to make possible a summary account of the trust transactions. Furthermore, an accountant, a witness for the court, was able to ascertain the total sales and purchases of securities made by the trust from the records furnished by the respondent. If there were minor transgressions, they appear to be the result of carelessness and inattention rather than corrupt conduct.
The respondent was confronted with a multitude of accusations based on his activities over a period of eighteen years. Some of these, apparently dubious in light of hindsight, might readily have been explained with the facts and figures at the time they took place or during any reasonable period thereafter.
The respondent is now 75 years of age and has practiced at the bar for 50 years with distinction, having been a member of the judiciary. He was humiliated and depressed by publicity concerning the aftermath of an unfortunate matrimonial venture, destroying the pride he once possessed as an authority in the field of domestic relations. He is mentally and physically impaired to a degree where he no longer possesses the mind or the body to permit him to adequately defend himself against the charges made.
In In re Frankel, 20 N. J. 588, 597 (1956), this court said:
“The disciplinary discretion is to be reasonably exercised, ‘with moderation and caution,’ controlled by the basic consideration that the object is not punishment of the offender, but rather the disqualification in the public interest of a practitioner of the law who has been guilty of ‘misconduct, indicative of moral unfitness for the profession * * *.’ ”
In this instance the public needs no further protection. Nature has amply and permanently provided it. Herr is largely incapacitated mentally and physically and unable to *303practice law or any other useful occupation. He has left the jurisdiction, seeking elsewhere some modicum of comfort and consolation. The devastation wrought by his misfortunes is best reflected in his attempted suicide and the note he left revealing his pathetic appraisal of continued worldly existence.
The majority conclusions, according to my view, come more within the classification of punishment of the respondent than public protection, and I cannot, on the record before me, vote to block out the few days of dim sunshine which still remain for him.
I would discharge the rule.
Heher and Olipi-iant, JJ., join in this dissent.
For disbarment — -Chief Justice Vanderbilt, and Justices Burling, Jacobs and Brennan — 4.
For discharge of rule — Justices Heiier, Oliphant and Vacheneeld — 3.