On exceptions to the final account.
Robert E. Nuese died on August 30, 1927 leaving the residue of his estate valued at $391,891.14 in trust to American Exchange-Irving Trust Company (now the Irving Trust Company). The trustee received the assets from itself as executor within a year or two after the death, but no accounting was filed with this court until the present first and final accounting. A supplemental account was filed but no question is raised as to it.
During the extensive hearings held in this matter the following facts were established. The deceased left surviving his widow Frances B. Nuese and his son Robert E. Nuese, the present exceptant. His will was a simple one. After a specific bequest to his wife he left the residue to his executor in trust with directions that of the income, $12,000 a year should be paid to his wife in monthly installments and the excess of income over that amount to his son. Upon the death of his wife, after provision for several monetary bequests, the balance of the corpus was to be turned over to his son, but not before the latter became 45 years old. The terms of the will made it of interest to the son that the income be maintained at a high level during the life of his mother.
The will contained the following provision which is pertinent to the issue presented:
"I hereby authorize and empower my said executor and trustee to invest the funds of my estate in such bonds, mortgages and preferred stocks as in its judgment afford reasonable security and produce an annual income of from five and one-half percent to seven percent, without reference to the laws and rules of court covering the investment of trustees and guardians. The trustee shall not be accountable for any loss of principal or failure of income resulting from these investments so long as it shall exercise good faith in the investment therein or retention therefor."
During the 21 years covered by the accounting in question the trustee received and disbursed some $382,000 of income,
and experienced a loss of corpus of $26,759.29 which is the subject matter of the pending exceptions.
It may be fairly concluded from the testimony adduced: (1) that the exceptant was in frequent consultation with the trustee during the administration of the estate and was fully informed of its conduct; and (2) that it was at the instance of the exceptant that he received periodic accounting in lieu of the formal presentation thereof to court, that course being followed in order to save him the expense and counsel fees incident to formal accountings.
All of the losses now complained of occurred some 15 or 20 years ago. Consequently the reconstruction of the details of the many transactions inquired into presented considerable difficulty.
There are three exceptions to the account which will be considered in the order ...