# Rosencrans v. Fry > Supreme Court of New Jersey · March 30, 1953 · 12 N.J. 88 URL: https://www.frixlaw.com/law-library/cases/9696006 ## Case - **Full name:** Lee Rosencrans, Arthur Rosencrans, and Harry Rosencrans, Plaintiffs-Appellants, v. William M. Fry, Defendant-Respondent - **Court:** Supreme Court of New Jersey - **Decided:** March 30, 1953 - **Citations:** 12 N.J. 88; 95 A.2d 905; 1953 N.J. LEXIS 231 - **Precedential status:** Published - **Opinion:** Dissent by Heher - **Judges:** Vanderbilt, Oliphant, Wachenfeld, Burling, Jacobs, Brennan, Heher - **Cited by:** 19 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9696006 ## Opinion text Heher, J. (dissenting in part). The testator died on December 7, 1944. Defendant did not exercise the testamentary option to buy the corporate stock until January 20, 1949. Meanwhile, the defendant fiduciary was under a duty of fidelity and loyalty to the income beneficiary which precluded the subordination of her interest to his own. True, the fiduciary’s duality of interest was of testamentary creation; but that circumstance did not modify the duty of loyalty so as to sanction conduct designed to serve the fiduciary’s own interest at the sacrifice of the life income provided by the testator for his widow. The fiduciary was also the dominant force in the corporate management, and the income beneficiary may require him to treat the corporate transactions as though they were his own as trustee, in keeping with the standard of fairness .and impartiality inherent in the relationship. - Where there is manifest unfairness to the life beneficiary in the distribution of earnings for the increase of the corporate surplus to the ultimate benefit and advantage of the fiduciary who has a working control of the corporation, the fiduciary is accountable in the probate jurisdiction for the administration of the corporate affairs. Compare In re Hubbell's Will, 302 N. Y. 246 , 97 N. E. 2d 888 (Ct. App. 1951). See, also, Scott on Trusts, section 236.11. This on the plainest principles of justice, and also to serve the testatorial intention. The case is factually within this principle. I do not find conclusive acquiescence by the life beneficiary ini' the conduct of the fiduciary in this, regard. In 1946, when the fiduciary evinced an intention to exercise the testamentary option, the widow objected on the ground that *105 such a course during her life would violate the testator’s intention, whereupon defendant replied: “Mrs. R., if that is the way you want it, that is the way it is going to be.” Mr. Stein, a New Jersey attorney retained by the widow in connection with the probate of the will, quoted defendant thus: “Let’s not get excited. We are just discussing this thing. Anything you want will be done. I am content whatever you say will go.” There was no contradiction of this testimony. The widow’s misapprehension of the terms of the will is of no significance on this inquiry; the circumstance of major importance is that defendant indicated he would not purchase the stock against her wish. It suffices to add that defendant’s own testimony demonstrates that he set the dividend policy. I would remand the cause for further proceedings to determine defendant’s accountability under the foregoing principle; otherwise, I would affirm the judgment. For affirmance — Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan —6. For modification — Justice Heher — 1. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9696006. Public record. Not legal advice.