Majority
p. 716(53 Misc. Rep. 243.) In re GILLROY. (Surrogate’s Court, New York County. February, 1907.)
Headnote
Tbusts—Liability of Tbustees—Expenses of Action.A trustee is not liable to bis beneficiaries because of an adverse decision in an action brought by him in the interest of the estate, unless it is shown by competent evidence that he suffered defeat by his own fraud or gross negligence.
[Ed. Note.—For cases in point, see Cent. Dig. vol.' 47, Trusts, § 324.]
In the matter of the judicial settlement of the accounts of James Gillroy, as trustee of John Gillroy, deceased. Decree rendered.
D. E. & J. F. Lynch, for trustee.
Campora & Thiery, for legatees.
Wessels Ryerson, special guardian.
A trustee does not become liable to his beneficiaries merely because an adverse decision is rendered against him "in an action brought by him in the interest of the estate, but only when it is shown by competent evidence that he has sufféred such defeat by his own'fraud, collusion, or gross negligence. The judgment in the Supreme Court action was obtained because the defendant in that action
p. 717
was believed by the referee in opposition to the oath of the trustee as to an alleged statement of an account. The judgment thus rendered^ is not binding as an estoppel between the trustee and his beneficiaries on an issue as to his good faith in his dealings as trustee, and the testimony given against him in that action is, for the purposes of the present proceeding, mere hearsay.
The objection as to the $401 item is overruled. Decreed accordingly.