Sullivan, Carton and Halpern. The opinion of the court was delivered by Carton, J.A.D.
The residuary legatees of the estate of Lena Bayles filed exception to plaintiff-executor's account by which they sought to surcharge him as executor for failure to dispose of her common stock in a life insurance company which comprised slightly over 60% of the total value of the assets of the estate at the time of her death. The trial court allowed the account and overruled the exception. As a result of that determination there were no assets available for distribution to these legatees, all charitable institutions. They appeal.
Decedent died April 1, 1965. Plaintiff, the attorney who drafted the will and codicil, was named executor. On April 13, 1965 he qualified as executor. He retained his firm as counsel for the estate and he himself performed most of the legal services relating to it.
The will and codicil (which contained no trusts) provided for the payment of debts and funeral expenses, and thereafter for 26 general bequests totaling $85,500, including a $5,000 gift to plaintiff personally. The residuary estate was bequeathed to the three charitable institutions in equal shares.
The will further provided for payment of taxes out of the residue, abatement of the general bequests in the event that the estate's value as of decedent's death was insufficient
to pay debts, satisfaction of taxes and bequests in full, and for distribution of the bequests in kind or in money, or partly in each at the discretion of the executor.
The estate consisted of assets, valued in the account as of the date of death as follows:
Shares of common stock of American
Telephone & Telegraph Company and
Public Service Electric & Gas Company $29,226.00
3,273 shares of common stock of North American
Life Insurance Company of Chicago,
valued at 29-5/8 and aggregating 96,962.25
Bonds of St. Louis-San Francisco Railroad
and Morris-Essex Railroad, having a total value of 4,635.00
Money on deposit, mostly in bank savings
accounts, and proceeds of a small insurance policy ...