
    Matter of the Estate of Joseph Horwitz, Deceased.
    (Surrogate’s Court, New York County,
    April, 1915.)
    Executors and administrators — investment of trust funds — violation of express terms of will — investment in real estate — accounting.
    In the absence of special authority in the will an executor may invest trust funds only in United States or state bonds, in loans on real estate and in the obligations of a city of this state issued pursuant to law.
    Where an executor in violation of the express terms of the will invests trust funds in the real estate of his wife, the account of his administratrix will be surcharged with the sum so invested, with interest.
    Proceeding upon the compulsory accounting of administrators.
    Leonard Klein, for contestant.
    Emanuel Van Dermoot, for petitioner.
   Fowler, S.

This is a compulsory accounting by the administratrix of Julius Horwitz, the deceased executor of Joseph Horwitz. Objections were filed to .the account, but upon the hearing all were withdrawn with the exception of two which have to do with the alleged improper investment of $12,665.43 by the deceased executor.

The will of testator bequeathed to the executor the sum of $25,000 in trust for testator’s wife,.which sum was directed to he invested in first mortgages on real estate in New York county, and the income therefrom to be paid to the cestui que trust during her life. The remainder over upon her death was to become part of the residuary estate.

The trust created by the will of testator was administered by the executor for the benefit of the testator’s wife until her death in February, 1909. After her death the executor distributed to the residuary legatees part of the money due them, the last payment having been made November 19, 1909.

In May, 1908, the accounting administratrix conveyed certain premises which she owned to her husband as executor of Joseph Horwitz, for the nominal consideration of one dollar. The account discloses that the deceased executor invested in all in these premises the sum of $12,665.43. In the absence of special authority in the will, an executor may invest only in United States or state bonds, in loans on real estate and in the obligations of a city of New York state issued pursuant to law. Laws of 1897, chap. 417, § 9; King v. Talbot, 40 N. Y. 76.

The. investment by the executor in the real estate owned by his wife was in violation of the express terms of the will. The accounting administratrix will, therefore, be surcharged with the sum of $12,665.43 (Matter of Fithian, 44 Hun, 457), and with interest on that sum at the rate paid by savings banks from the 19th of November, 1909.

Decreed accordingly.  