In the Matter of the Estate of Gothlieb Kittelberger, Deceased. Gladys Judd et al., Appellants; Central Trust Company of Rochester, as Executor and Trustee under the Will of Gothlieb Kittelberger, Deceased, et al., Respondents

In the Matter of the Estate of Gothlieb Kittelberger, Deceased. Gladys Judd et al., Appellants; Central Trust Company of Rochester, as Executor and Trustee under the Will of Gothlieb Kittelberger, Deceased, et al., Respondents. [MAJORITY] Decree unanimously affirmed, with costs of this appeal to each party filing a brief, payable out of the estate. Finding of fact disapproved and a new finding of fact substituted. Memorandum: We disapprove the finding of the court below [designated No. (2)] that “Frank D. Berteh was in no wise to blame for any delay in fixing the fair and reasonable price per share of said 2,070 shares of stock or in the execution of the contract of September 5, 1958” and that this constitutes the reason for determining that the valuation of the stock should be made as of the time of the testator’s death or a short time thereafter. We strike out that finding and substitute the following: We find that Bertch was at fault in failing to disclose to the executor the understatement of inventory in the financial statements relied upon by the executor as showing the net worth of the company at or about the time of the testator’s death, even though the practice of understating the inventory had been initiated by the testator himself. However, any delay which may have resulted from the nondisclosure, occurred during, and was part of, a longer period of delay brought about by litigation with respect to the construction of the will, including numerous appeals by the present appellants. Hence it did not, as a practical matter, result in any additional delay in the making of the contract. In any event, we find that it was the testator’s intention to have the stock valued, for the purpose of the sale to Bertch, as of the time of his death (or within 40 days after the date of the probate of his will), and we find that there was no intention on the part of the testator to postpone the time of valuation, because of the occurrence of delay in the making of the contract of sale. (Appeal from decree of Monroe Surrogate’s Court settling the accounts of the executor and trustee, approving a contract of sale of stock between the executor and Frank D. Bertch, and dismissing the proceedings for the removal of the Central Trust Co. as executor and trustee.) Present — Williams, P. J., Bastow, Halpern, MeClusky and Henry, JJ.