Majority
p. 601In the Matter of the Accounting of Boyd McDowell et al., as Testamentary Trustees under the Will of Robert M. McDowell, Deceased, Appellants and Respondents. John G. McDowell et al., Respondents and Appellants. (Argued January 12, 1921; decided February 1, 1921.)
Headnote
Accounting — trustees surcharged for improper investment of trust funds.Matter of McDowell, 193 App. Div. 914 , modified.
Cross-appeals from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 10, 1920, which modified and affirmed as modified a decree of the Chemung County Surrogate’s Court settling the accounts of the trustees under the will of Robert M. McDowell, deceased, and surcharging them with $62,970, the amount invested by them in certain securities, which have since defaulted and were not at the time of purchase seasoned and proper invest
p. 602
ments for trust funds; also surcharging them with interest on the amount so invested.
Thomas M. Losie for trustees, appellants and respondents.
'Alexander S. Diven for contestants, respondents and appellants.
Order of Appellate Division and decree of surrogate modified by striking out provision surcharging accounts of trustees with the sum of $13,445, invested in Rochester, Syracuse and Eastern railway bonds and certain interest; also by inserting a clause providing that on payment of sum charged against them as invested in certain other securities mentioned in the decree, the trustees be subrogated to the rights of estate to said securities, and as so modified said order of Appellate Division is affirmed, without costs to either party; no opinion.
Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Andrews, JJ. Hogan, J., dissents from modification relating to Rochester, Syracuse and Eastern railway bonds.