Opinion
March 12, 1947.
Present — Taylor, P.J., Dowling, Harris, Larkin and Love, JJ.
Decree, so far as appealed from, modified on the law in accordance with the memorandum and as modified affirmed, with costs payable out of the estate to all parties filing briefs. Memorandum: Primary life beneficiary's objection VI is sustained and the account adjusted by deducting $317.36 from the principal account and adding same to the income account. (See Matter of Otis, 276 N.Y. 101.) All concur, except Dowling, J., not voting, and Love, J., who dissents and votes to modify the decree and surcharge the trustees in the sum of $79,210 by reason of the retention in the trust of the original shares of the corporate trustee that came to the trust from testator's estate and the sum of $35,654 invested in additional shares pursuant to rights issued as an incident to the original shares on the ground that the transactions were not authorized by the will. The surcharge is warranted whether it be based upon violation of the rule of undivided loyalty ( City Bank Farmers Trust Co. v. Cannon, 291 N.Y. 125), or negligence. (The portion of the decree appealed from settles the accounts of trustees.)