STICKEL, Jr., J.: August F. Eckert, of Orange, New Jersey, died on or about October, 1914, leaving a last will and testament, whereby he bequeathed his property to his wife, Caroline Eckert, and to his children Annie M. Eckert and Clara M. Eckert, to be divided equally between them as soon as the youngest child should arrive at the age of twenty-one years. He appointed William Scheerer, executor. Both of the children were of the age of twenty-one years at the time of testator's death. Scheerer duly qualified as executor, and from 1914 to the present time he has been in charge of the administration of the estate. After being cited to account he filed the account here in issue, and Annie M. Eckert, who has married and is now known as Annie Maxwell, filed numerous exceptions to the account. All of these exceptions were disposed of at the hearing except certain exceptions which fell into two classes, first, those relating to the depreciation on certain issues of bonds, generally described throughout the hearing as Public Service securities, and, second, the exceptions based upon the executor's failure to invest the cash on hand.
I will overrule the exceptions falling within the first class, namely, those seeking to surcharge the executor for depreciation of securities invested in by the testator and received by the executor as part of his estate.
The securities, the subject matter of the exceptions now under consideration, are investments made by the testator. Consequently, unless it can be shown that in continuing these investments the executor failed to exercise reasonable discretion and that there was an absence of good faith in so continuing them, he cannot be charged with depreciation of such stock. The burden of proving such lack of good faith and failure to exercise reasonable discretion is upon the exceptant.
This burden she has failed to sustain. I am convinced that whatever the executor did in the management of this estate was done solely with the best interests of the estate in mind.
When the decedent died his widow and two daughters remained together as a family and the executor proceeded to administer the estate possessed of the complete and entire confidence of the beneficiaries of the man who had had sufficient confidence in him to appoint him his sole executor.
It was his strict duty, perhaps, to close up the business of decedent, collect the assets, pay the debts and at the end of the year distribute, and had he done so he would early have been relieved of his responsibility. But he wanted to help the family, and so he departed from his strict duty and permitted the business to be continued for a time so that the family might benefit from the receipts thereof.
Again, he permitted the informal use and division of some of the debts collected and personal property left. But it is entirely clear to me that this was done by common consent of those concerned, including the exceptant. The three, constituting the family, were treated as an entity, and these and other departures from the strict line of the executor's duty were committed because they were for the common good.
In line with this policy of helpfulness on Scheerer's part, and of confidence and reliance upon the part of the devisees, the executor was given charge of the lands and permitted to continue the management of the estate long after it should have been wound up. He became, by tacit consent and common understanding, the trustee of the family. They wanted the benefit of his judgment and experience until the real estate could be sold and the proceeds properly invested. This he gave to them.
This continued during 1915, 1916 and 1917. No question seems to have arisen as to the propriety of continuing the investments, nor, indeed, were the executor's acts in any respect challenged during this period. Then the exceptant left the family and became Mrs. Maxwell, and in 1918 demanded an accounting.
Up to this point no evidence at all of bad faith or unreasonable exercise of discretion appears.