Complainants below sought to surcharge the defendants as executors and trustees. The final account of the executors was settled by decree of the Orphans Court on September 17th, 1931, and thereafter the trustees had seven intermediate accounts settled by that court. I agree with the majority that the claims against the executors, arising out of the sale of the Yeast Company, are barred by laches and that the subject-matter is resadjudicata. Shearman v. Cameron, 78 N.J. Eq. 532. The claims against the trustees, arising out of the handling of the Hastings notes and the continuance of the investments in the common stocks, are in a different category. I agree with Mr. Justice Heher that neither laches nor estoppel precludes the beneficiaries from holding the trustees to accountability in this regard. In re Shaw, 122 N.J. Eq. 536. However, I conclude, as did the majority, that the trustees, under all the evidence, did exercise good faith and reasonable discretion in both instances. As to the continuance of the investment in the common stocks, the trustees are protected by statute from surcharge if the continuance is "in the exercise of good faith and reasonable discretion." R.S. 3:16-12.
Judge Wells joins in this opinion. *Page 54