
    Matter of the Judicial Settlement of the Account of Jambs Gillroy, as Trustee of John Gillroy, Deceased.
    (Surrogate’s Court, New York County,
    February, 1907.)
    Former adjudication — Who are concluded — Persons acting in particular capacity.
    Where a testamentary trustee brings an action in thé Supreme Court in the interest of the estate and judgment is obtained by the defendant because, as to an alleged statement of an account, he is believed against the plaintiff, the judgment is not binding as an estoppel against the trustee on an issue as to his good faith in his dealings as trustee upon the judicial settlement of his accounts as trustee.
    Proceeding upon the judicial settlement of the accounts of a trustee.
    D. E. & J. F. Lynch, for trustee.
    Oampora & Thiery, for legatees.
    Wessels Kyerson, special guardian.
   Thomas, S.

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 suffered 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 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.  