Opinion
Argued May 3, 1984
Decided June 5, 1984
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Robert H. Wagner, J.
Charles S. Desmond for Philip Y. Hahn Foundation, appellant.
Paul B. Zuydhoek and Arthur B. Sherwood for the Estate of Philip Y. Hahn, deceased, appellant.
Michael R. Law and Robert F. Zogas for the Estate of Muriel M. Hahn, deceased, appellant.
Robert Abrams, Attorney-General ( Bernard Toomin, Peter H. Schiff, Daniel L. Kurtz and Jonathan J. Silbermann of counsel), for Ultimate Charitable Beneficiaries, appellants.
Laura B. Hoguet and E. Bayard Halsted for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs to respondent payable by all appellants jointly, for the reasons stated in the opinion Per Curiam in that court ( 93 A.D.2d 583).
In view of the arguments pressed in our court we add that, even if this trustee had settled on a plan (perhaps more accurately, an objective) to effect the prompt liquidation of the Coleman shares as opportunity afforded, nothing in the prudent man standard required, in this instance, continuing adherence to that plan or precluded its modification or abandonment. The standard by which the performance of the trustee is to be judicially measured is whether, in all the circumstances including in this instance the express authorization to the trustee "in its absolute discretion" to retain the Coleman shares, the trustee exercised "such diligence and such prudence in the care and management [of the fund], as in general, prudent men of discretion and intelligence in such matters, employ in their own like affairs" ( King v Talbot, 40 N.Y. 76, 85-86; cited with approval Matter of Bank of N.Y., 35 N.Y.2d 512, 518-519). The determination of the Appellate Division that there was no breach of that standard in this case comports with the weight of the evidence.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
Order affirmed in a memorandum, with costs to respondent payable by all appellants jointly.