In re Wiley — 98 A.D. 93

Majority

p. 93

In the Matter of the Application of Franklin B. Wiley, Respondent, for the Removal of Joseph Bird, Substituted Trustee under the Ninth Clause of the Last Will and Testament of James C. Baldwin, Deceased, Appellant, for an Accounting by Said Trustee and for the Appointment of a Successor to Said Trustee.

Headnote

Trustee—duty of, in respect to withdrawing money from a savings banJc and investing it.

A testamentary trustee, who, upon succeeding to the trust, finds §382.70 belonging to the trust fund deposited in a savings bank and drawing interest at the rate of three and a half per cent, is not improvident in allowing such money to remain in the savings bank, and his accounts should not be surcharged with the difference between the interest paid by the bank on the deposit and the legal rate of interest, especially where it does not appear that the trustee could have invested the fund so as to have obtained interest at the rate of six per cent.

p. 94

Appeal by Joseph Bird, substituted trustee under the ninth clause of the will of James 0. Baldwin, deceased, from so much of a judgment of the Supreme Court, entered in the office of the cleric of the county of New York on the 3d day of February, 1904, upon the decision of the court rendered after a trial at the New York Special Term, confirming the report of a referee, as directs that the appellant pay to the petitioner the sum of $1,061.86 and costs of the proceeding, and as makes the exoneration, release and discharge of the said appellant dependent upon the paying over by him of any moneys, costs, allowance or disbursements.

Edward S. Rapallo, for the appellant.

Gerard Roberts, for the respondent.

We think the evidence fully sustains the conclusions reached by the referee except as to the item of $168.90, being a difference in interest on the sum of $382.70 deposited in a savings bank upon which interest at the rate of three and one-lialf per cent was allowed, and interest at the rate of six per cent, with which the referee held that the trustee should be charged. Upon succeeding to the trust estate the trustee found this amount deposited in the savings bank and there is nothing to show, considering the small amount of the deposit, that the trustee could readily invest it so as to obtain interest at the rate of six per cent. It was neither improper nor improvident to permit such a small sum to remain in a perfectly safe place upon deposit and obtain interest at the same rate that was allowed by the bank upon similar amounts.

We think, therefore, that the trustee was improperly charged with this item of $168.90, the difference between three and one-lialf per cent paid by the bank and six per cent with which the referee concluded that the trustee should he charged.

The judgment, accordingly, should be modified by reducing the same to the sum of $1,515.79, and as so modified affirmed, without costs.

Present — Van Beünt, P. J., Patterson, O’Beien, Hatch and Laughlin, JJ.

Judgment modified by reducing same to the sum of $1,515.79, and as so modified affirmed, without costs.