In re Wiley — 91 N.Y.S. 661

Majority

p. 661

(98 App. Div. 93)

In re WILEY.

(Supreme Court, Appellate Division, First Department.

November 11, 1904.)

Headnote

1. Trustees—Investment oe Funds—Bate oe Interest.

A trustee, who, upon succeeding to the trust estate, found a sum of money of less than $400 deposited in a savings bank, where it drew 3% per cent, interest, should not be charged with interest at the rate of 6 per cent, on such sum, in view of its smallness, and in the absence of a showing that he could have readily invested it so as to obtain 6 per cent, interest thereon.

Appeal from Special Term, New York County.

In the matter of the application of Frank B. Wiley for the removal oí Joseph Bird, substituted trustee under the will of James C. Baldwin,

p. 662

deceased, for an accounting by said trustee, and for the appointment of a successor. From so much of the decree as charged said trustee with a sum of money and costs, and released him only upon condition of the payment thereof, he appeals.

Modified.

Argued before VAN BRUNT, P. J., and PATTERSON, O’BRIEN, HATCH, and .EAUGHEIN, JJ.

Edward S. Rapallo, for appellant.

Gerard Roberts, for respondent.

We think the evidence fully sustains the con-, elusions 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 3J4 per cent, was allowed, and interest at the rate of 6 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 readify invest it so as to obtain interest at the rate of 6 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 3y2 per cent., paid by the bank, and 6 per cent., with which the referee concluded that the trustee should be 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.