Goldmann, Conford and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
L. Theodore Fiedler (hereinafter plaintiff), executor of the estate of William C. Fiedler, deceased, appeals from a judgment of the Essex County Court, Probate Division, dismissing his complaint for judicial approval of a plan of distribution of the assets of said estate.
William C. Fiedler died testate on August 29, 1950. On September 12, 1950 letters testamentary were granted to plaintiff by the Essex County Surrogate's Court. Various contingencies, provided for in decedent's will, have occurred, and the residuary estate, both real and personal, is now vested; one-half in L. Theodore Fiedler, and one-half equally in testator's grandchildren (hereinafter defendants). Defendants are identified as follows: Helen B. D. Dakis, John M. Fiedler and William C. Fiedler, II, who are the children of testator's son, William L. J. Fiedler (William predeceased his father), and Martha F. Morris and Janet F. Lorensen, who are the children of testator's son, L. Theodore Fiedler, the plaintiff here.
The provision of decedent's will here pertinent is article Fifth, which provides:
"I authorize my Executors and Trustees in their discretion: * * *
(j) To divide or make distribution of all or any part of my estate in kind and without converting the same into cash, and for such purpose to value and appraise any and all properties, securities and investments as of the time of any such division or distribution, which valuation, made in good faith, shall be binding upon all parties interested.
(l) Generally, to do all acts, take all proceedings and exercise all rights, privileges and discretions although not specifically mentioned in this will, as if they were the absolute owners of my estate."
The assets presently remaining in the estate are these:
1. 11 shares of stock of Fiedler-Hollister Corp., an insurance agency. The balance of the outstanding stock (11
shares) is owned by Robinson G. Hollister, the operating manager, or by members of Hollister's family.
2. 50 shares of stock of Forty-one Central Ave. Corp., owner of a two-story office building at the title address and of a small unimproved parcel of land at 48 East Park Street, Newark. The balance of the outstanding stock (50 shares) is owned as follows: 40 shares by Helen D. Bahrenburg (widow of William L. J. Fiedler) and one share by her present husband, Edward H. Bahrenburg.
3. 92 shares of stock (the entire stock issued and outstanding) of Littleton Farms, Inc., owner of a tract of approximately 33 acres of undeveloped land in Parsippany-Troy Hills Township.
4. 74 shares of stock of Fiedler Corporation, owner of a three-story office building at 14 Park Place, Newark. The balance of the outstanding stock (10 shares) is owned as follows: 5 shares by plaintiff and 5 shares by the representatives of William J. L. Fiedler, deceased.
5. Three and one-third shares of stock of Fiedler, Inc., a real estate brokerage firm. The balance of the outstanding stock is owned as follows: three and one-third shares by L. Theodore Fiedler and three and one-third shares by the representatives of William L. J. Fiedler, deceased.
6. Two adjacent unimproved building lots in Glen Ridge.
7. One 1946 Chrysler sedan, inventoried at $800.
8. Household furniture, personal effects, cash and securities valued in the inventory at $31,702.74.
Two liabilities remain against the estate. The first is ascertainable -- an indebtedness of decedent to Fiedler Corporation, now in the sum of $23,075; the second, the amount to be charged against the estate in connection with the present and any further proceedings.
On December 10, 1956 plaintiff filed a complaint seeking approval of a plan of distribution for the remaining assets of decedent's estate. The plan of distribution, as set forth in the complaint, is as follows:
(1/2 -- residuary estate)
74 sh. Fiedler Corp. $89,499.30
17 sh. Littleton Farms, Inc. 15,419.51
11 sh. Fiedler-Hollister, Inc. 2,200.00
Chrysler '48 Windsor sedan 800.00 $107,918.81
15 sh. Littleton Farms, Inc. 13,605.45
10 sh. Forty-one Central Ave.
Corp. 8,085.80 $21,691.25
(1/10 -- residuary estate)
15 sh. Littleton Farms, Inc. ...