
    (80 Hun, 186.)
    In re BUSH'S ESTATE. In re HATHAWAY.
    (Supreme Court, General Term, Third Department.
    July 14, 1894.)
    1. Insanity—Liabilities op Committee.
    A committee who receives from his predecessor, as assets, securities in lieu of cash, is deemed to have invested in such securities, and is responsible for the propriety of the investment
    2. Same—Investments—Good Faith.
    On the accounting of C. as committee of a lunatic, H., his successor, received, as part of the assets of the estate, the check of a banker, and after-wards invested the amount thereof in a mortgage from C. individually to the banker. The mortgage was given to raise funds to enable C. to settle with the lunatic’s estate, and the land mortgaged was ample security for the amount thereof. Held, that there was nothing in the transaction to impugn the good faith of H. in taking the mortgage.
    Appeal from special term, Montgomery county.
    Accounting by Frank F. Hathaway, as committee of Francis A. Bush, a lunatic. The referee appointed to state the accounts of the committee found that two mortgages—one called the “Clark mortgage,” for $2,500, and the other the “Henry Gonyea mortgage,” for $1,440—were not such as the committee should have taken, and charged the committee with the amount thereof in money; that the committee was not entitled to extra compensation for services performed by him outside of his commissions, except such as were not professional; that the committee should not be allowed for two items of interest paid by the committee to A. M. Moore,—one for $90, and the other for $91.80; and disallowed commissions on $4,848.79. The report was confirmed, and the committee appeals. Modified.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Matthew Hale (G. H. Beckwith, of counsel), for appellant.
    Shedden & Booth (L. L. Shedden, of counsel), for respondent.
   MAYHAM, P. J.

Francis A. Bush, the lunatic, having died intestate, Alfred Gordon was duly appointed administrator of his goods, chattels, and credits, and as such filed Ms petition for the accounting of the committee, Frank F. Hathaway, who thereupon joined in such petition, and, having filed his accounts as such committee, the court duly appointed Royal Corbin as referee to take and state the accounts of such committee, who, after hearing the parties, made Ms report, which, on application to the court, was modified, and, as modified, was confirmed, from wMch order of confirmation this appeal is taken.

The first question raised on this appeal is as to whether two mortgages held by the committee as such should be turned over to and received by the administrator at their face value as a part of the trust fund in the hands of the committee, or whether he should be charged with the face value of the same in cash. The appellant, Hathaway, succeeded Hiram Clark as committee of the estate of Francis A. Bush, the lunatic. Clark had been such committee for several years, and on his accounting, on the 14th of February, 1892, there was found to be due the estate of the lunatic the sum of $8,257.13, and also a bond and mortgage for $1,000, given to the committee, Clark, by one George L. Clark, and a pension certificate issued to the lunatic, granting him a pension at the rate of $72 per month. On the 15th of February, 1892, Hathaway, as committee, filed his inventory of the estate of the lunatic, stating that he had then on hand, cash, $8,257.13, and the George L. Clark mortgage of $1,000, for which he on that day gave his predecessor, Clark, his receipt. The referee finds the appellant, Hathaway, at the time of giving such receipt, received in lieu of cash from his predecessor, Clark, a mortgage of $2,500, executed by said Clark to Merritt Sowles, and assigned by him to Hathaway as such committee; and that at the same time, in lieu of cash, he, as such committee, received another mortgage, made by Gregory to Webster Clark, a brother of Hiram Clark, committee, on which there was unpaid and owing the sum of $1,406.50, principal and interest. ■ Hathaway, as such committee, received from his predecessor several other real-estate mortgages as cash, about which no question is raised here. The referee held and reported that the Clark and Gregory mortgages were not proper securities in which to invest the trust funds in the hands of the committee belonging to the lunatic, or to allow the appellant to turn them over to the administrator in payment and discharge of his liability as such committee, and the special term sustained the report of the referee in that respect. The appellant. duly excepted to this part of the report of the referee, and to the decision of the court thereon, and the principal contention on this appeal arises out of that refusal. Hathaway, when he assumed the duties of committee of the person and estate of the lunatic, by his inventory acknowledged the receipt of his predecessor of $8,257.13. His predecessor, by his account, was charged with that sum as cash -on hand, and made no claim that any of that amount was at that time invested in either of the mortgages in controversy here; so that the appellant must be deemed to have voluntarily made these investments himself, and not to have accepted those securities as investments made by his predecessor. He had it in his power to compel his predecessor to pay the amount found in his hands in cash, and, having received these securities in lieu of cash, he, and not his predecessor, must, on this accounting, be held liable if the securities received by him were not such as he might receive as an investment of the trust funds committed to his care. While it is quite apparent from the transactions connected with the making of the Hiram Clark mortgage that he gave the same for the purpose of meeting in part his liability as committee on his accounting, we do not see how that fact alone can prejudice the rights of the appellant, provided he had reason to believe, and did believe, that the mortgage was good and adequate security for the amount invested in it. The execution of the mortgage by Clark to Sowles, "who was at that time president of the First national Bank of Plattsburgh, and who gave Clark his check for $2,500, the amount of such mortgage, who indorsed the check to the order of Hathaway, committee, who received the same in part payment of the amount due from Clark as late committee, was a valid payment. That -check bore date on the 15th of December, and was deposited by Hathaway to his credit in the bank, and on the 29th of January he gave his •check for $2,500 to Sowles, and received for the same an assignment of the Clark mortgage. There is nothing in this transaction which seems to impugn the good faith of Hathaway in taking the assignment of this mortgage as an investment for the benefit of the trust •estate. He could at any time, on his check, after the Sowles check was placed to his credit, have drawn the currency from the bank as committee. Instead of that he saw fit to invest the proceeds of his deposit in the purchase of an interest-bearing security. This was his duty as committee, provided the security in which such investment was made was reasonably adequate for the amount invested.

The referee, in his thirteenth finding of fact, finds that this Clark mortgage of $2,500 was doubtful security for that amount, and by his fourteenth finding of fact he finds that the same was not taken by Hathaway in entire good faith; and by his conclusion he finds that the lunatic’s estate is not bound to take the same, but is entitled to demand cash of the committee for the amount of the same. Exceptions were duly taken by the committee to such findings and conclusions. The referee, in his report, refers to the social, business, and kinship relations existing between Hiram Clark and the appellant at the time he became the committee of this lunatic, to which the appellant excepted. It is difficult to see the materiality of these facts to the real question under consideration. The real question is, was the mortgage such a security as a prudent business man would take on investing his own funds? The answer to this question would seem, under the authorities, to measure the responsibility of a committee of the estate óf a lunatic. In King v. Talbot, 40 N. Y. 86, the court of appeals, in discussing the liability of a trustee, by Woodruff, J., says:

“My own judgment, after an examination of the subject, and bearing in mind the nature of the office, its importance, and the considerations which alone induce men of suitable experience, capacity, and responsibility to accept its usually thankless burdens, is that the just and true rule is that the trustee is bound to employ such diligence and such prudence in the care and management as in general prudent men of discretion and intelligence in such matters employ in their own like affairs. * * * The preservation of the fund, and the procurement of a just income therefrom, are primary objects of the creation of the trust itself, and are to be primarily regarded.”

Adopting the rule as above stated, and applying it to the security under consideration, and eliminating all the extraneous consideration of the relations between the outgoing and incoming committee, and testing this question by an examination of the sufficiency of the security alone, it seems clear that the referee’s determination as to the Clark mortgage was erroneous. The estate of the lunatic has thus far suffered no loss by this investment. The assignor of this mortgage took it as a sufficient security for a loan to Clark of $2,500. He was a business man, and president of a bank, at the time of making such loan and taking this security. Several apparently competent business men and real-estate owners and dealers, acquainted with the real estate covered by this mortgage, and with other real estate located in its vicinity, testified that its value was, at the time of the assignment of this security to the committee, from $3,000 to $4,400. The mortgage bore interest at the legal rate of interest, and contained the interest and insurance clause, and was apparently in every respect a desirable security. If, under such conditions, the trustee charged with the duty of keeping trust funds invested on interest is to be held responsible for payment of the-same in cash, without recourse to the securities, then the duties and obligations of committees and trustees will become too onerous and risky for ordinary business men, and responsible and competent men will refuse to assume such duties. It is quite true that trusts; for the benefit of the incompetent and infants should be administered with great care and fidelity, and that improvidence or dishonesty on the part of a trustee should be visited with severe condemnation and penalties by the courts. But when the trust has been: administered with fidelity, and with prudence and caution that would characterize a prudent business man in the management of his own affairs, if loss happens, it should not be visited upon the trustee. I am therefore clearly of the opinion that the Hiram Clark mortgage was a security in which the committee might, at the time he took the same, lawfully invest the trust funds; and that the administrator of the estate of the lunatic should be required to take the same at its face value, with accrued interest, and credit the same to-the committee on his account on this final accounting.

A careful examination of the evidence of the Henry Gonyea mortgage leads to the conclusion that that was full and adequate security for the amount of the trust fund invested in it, and that the reasons-stated in reference to the Hiram Clark mortgage apply with equal force to the Gonyea mortgage, and that it, too, should be received by the administrator of the estate of the lunatic, and credited to the committee on his accounts. The referee was right in disallowing the committee’s claim for personal services, and in his refusal to allow for the payment of interest on the Moon mortgage. The order appealed from should be so modified as to allow the appellant a credit of $2,500, the amount of the Hiram Clark mortgage, and $1,466.50, the amount of the Henry Gonyea mortgage, and that those-mortgages, with the bonds accompanying them, be transferred and delivered by the appellant to the administrator of Francis A. Bush, the deceased lunatic, and, as so modified, that the same be affirmed, without costs of this appeal to either party as against the other. All concur.  