
    In the Matter of the Judicial Settlement of the Accounts of W. Martin Jones, Deceased, as Trustee under the Will of Henry Powis, Deceased. Gertrude M. Jones, as Sole Executrix, etc., of W. Martin Jones, Deceased, Trustee, Appellant; Louise Powis Newcomb and Others, Respondents.
    Fourth Department,
    March 8, 1911.
    Trust — accounting— attorney’s fee on proceeding to remove trustee — interest on fund from the death of life tenant.
    Where a trustee upon the written request of the cestui que trust and of the ultimate beneficiaries, some of whom were infants, made unauthorized investments of the trust fund, some of which turned out unfavorably and one of the infant beneficiaries upon becoming of age started a proceeding to remove the trustee and, although he offered to give a bond indemnifying her from loss, continued the proceeding which resulted merely in a decree requiring the trustee to give a bond as he had offered to do, the trustee’s executrix on accounting for the trust estate should be allowed credit for a reasonable fee paid to the attorney who appeared for the trustee in the proceeding to remove him.
    That this fee was not paid by the trustee during his lifetime does not militate against the validity of its payment.
    The trustee’s accounts should not be surcharged with interest at six per cent on the funds of the estate from the time of the death of the life beneficiary computed as if an account had been filed annually determining the amount in his custody, but only with such interest as the funds actually produced.
    But he should be charged six per cent on money belonging to the trust estate which he had mingled with his own.
    McLennan, P. J,, dissented.
    
      Appeal by Gertrude M. Jones, as sole executrix, etc., from parts of a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 23d day of February, 1910, judicially settling the accounts oíj W. Martin Jones, deceased, trustee under the will of Henry Powis, deceased.
    
      W. Martin Jones, Jr., for the appellant.
    
      Murlin S. Smallwood, for the respondents Louise P. Newcomb and others.
    
      William, C. Kohlmetz, for the respondents Powis.
   Spring, J.:

Henry Powis died in 1884 leaving a will in which he named two of his daughters and W. Martin Jones as executors and trustees. The will was admitted to probate. The daughters renounced and letters testamentary were issued to Jones. In 1886 a judicial settlement was had by him as executor, showing in his hands as trustee about $18,000, which he continued to manage and invest until his death in 1906.

The testator had been in the habit of loaning money in western States. There was a life tenant, Richard Powis, of a part of these funds, and he with the remaindermen or the ultimate beneficiaries desired the trustee to make investments in the west and signed a contract authorizing him to do so. These investments were made, and some of them turned out unfortunately. Some of the beneficiaries who signed the contract were minors and, of course, were not bound by it. One of these who had attained her majority and about five years after that period commenced a proceeding in the Surrogate’s Court in 1900 to remove Jones as trustee. He offered, as it is claimed, to give a bond indemnifying the petitioner in that proceeding, but the contest continued. He subsequently under the direction of the surrogate filed his account as trustee and a decree was entered settling the same. As a result of the proceeding he was required to give a bond in the sum of $5,000 to protect the petitioner, which he did.

The proceeding was long continued and quite hotly contested, and Mr. Salisbury, an attorney, acted with Mr. Jones upon the trial. I think Mr. Jones was justified in resisting the effort to remove him. He made no investment in foreign securities until he was requested in writing to do so by the life tenant and beneficiaries and upon their agreement to protect and indemnify him against loss thereby. The petitioner who had joined in the proceeding was ■ a minor at that time and, of course;, was not legally bound by the agreement which she had executed. She waited for five years with full knowledge that these investments were being made before she attempted to repudiate the conduct of the trustee, and then applied for his removal. Assailed as he was in this proceeding to be ousted from a position to winch he had been nominated by the testator, it was necessary for him to defend himself. As stated, he was willing to give a bond to protect the petitioner at the outset of the proceeding, but that was not satisfactory, and all that was accomplished after the termination of the long litigation was to require him to give this bond and he continued in the trusteeship.

The investments which he made in the western States were criticized. The one in the Eldorado Light and Fuel Company of Kansas was properly held not to be within the scope of his authority. It is conceded, however, that they were made in good faith and in an honest attempt to carry out the wishes of the beneficiaries who desired the fund invested in mortgage security in the west.

After this proceeding had terminated, Richard Powis, the life tenant, also commenced a proceeding to require the trustee to account or to remove him, and that proceeding was pending when Mr. Jones died in 1906. Mr. Salisbury appeared also in that proceeding. He was not paid for the first proceeding or in fact for the second during the lifetime of Mr. Jones. He charged $500 for his services in the first proceeding and no question has been raised that they were not worth that sum. After Mr. Jones died, his widow, Mrs. Jones, who was the executrix of his will, was cited to file the accounts of the trustee, which she did. She paid Salisbury his charge of $500, and the payment was disallowed by the Surrogate’s Court.

It seems to me she should be allowed this sum which she paid. As stated, the proceeding was to remove Mr. Jones as trustee and he did not unreasonably resist the attack made upon him in filing an answer and presenting his proofs. He succeeded on the main proposition in that he was not removed.

I realize that he was individually primarily liable to Mr. Salisbury. That is always so with an executor or trustee. That fact, however, does not absolve the estate from reimbursing him for the amount he has expended, provided only the disbursement is a proper one; and when necessary a lien may be maintained upon the estate. (Matter of Smith, 111 App. Div. 23.)

Ron does the fact that the payment was not made by Mr. Jones in his lifetime militate against its validity. (Matter of Blair, 67 App. Div. 116, 120.)

I think the decree should be modified by allowing to the appellant this expenditure.

The following is the surrogate’s fifteenth finding: “That the said Trustee should be surcharged with interest on all accounts, securities and assets of the estate drawing interest, from April 9, 1906, the date of the death of the life tenant, Richard Powis, with annual rests.”

I think thé rate of interest charged is excessive. That is, as a result of this finding, and the decree conforms to it, she, as the representative of her husband, is chargeable with interest at the rate of six per cent, and computed as if an account was filed annually determining the amount in his custody as trustee. Row it appears that some of this money is in savings banks, some of it is invested in securities not bearing six per cent interest. Raturally, after her husband died, she, as executrix, would gather whatever property "there was of the estate, convert it into money where feasible and deposit it in savings banks, where the rate of interest would not be more than four per cent probably at the outside.

I think this part of the decree should be modified. The appellant should be charged on the securities which she holds for the benefit of the estate whatever interest they have earned, and the same rule should prevail as to the funds deposited in banks. As to the residue, if it has been commingled with the Jones estate, the rate of six per cent should be imposed.

The decree should be modified accordingly. Order to be settled before Justice Spring on two days’ notice.

All concurred, except McLennan, P, J., who dissented and voted for affirmance.

Decree modified in accordance with opinion, and as so modified affirmed, without costs of this appeal to either party.  