Opinion
November, 1904.
Edward S. Rapallo, for the appellant.
Gerard Roberts, for the respondent.
Present — VAN BRUNT, P.J., PATTERSON, O'BRIEN, HATCH and LAUGHLIN, JJ.
We think the evidence fully sustains the conclusions reached by the referee except as to the item of $168.90, being a difference in interest on the sum of $382.70 deposited in a savings bank upon which interest at the rate of three and one-half per cent was allowed, and interest at the rate of six per cent, with which the referee held that the trustee should be charged. Upon succeeding to the trust estate the trustee found this amount deposited in the savings bank and there is nothing to show, considering the small amount of the deposit, that the trustee could readily invest it so as to obtain interest at the rate of six per cent. It was neither improper nor improvident to permit such a small sum to remain in a perfectly safe place upon deposit and obtain interest at the same rate that was allowed by the bank upon similar amounts.
We think, therefore, that the trustee was improperly charged with this item of $168.90, the difference between three and one-half per cent paid by the bank and six per cent with which the referee concluded that the trustee should be charged.
The judgment, accordingly, should be modified by reducing the same to the sum of $1,515.79, and as so modified affirmed, without costs.
Judgment modified by reducing same to the sum of $1,515.79, and as so modified affirmed, without costs.