The few cases where liability was imposed are distinguishable. Thus, in Mathews v. Sheehan (1904) 76 Conn. 654 [ 57 A. 694], the administrators were held liable for not effecting a reasonably prompt settlement of the decedent's margin accounts with stockbrokers on the ground that maintaining a "speculative account" in stocks and bonds was equivalent to carrying on a trade or business, which an executor may not do without special authorization except at his own risk. Although the same consequences attach to a personal representative's operation of a business in a California decedent's estate without specific authorization ( Estate ofBurke (1926) 198 Cal. 163, 166 [ 244 P. 340, 44 A.L.R. 1341]; California Emp. etc. Com. v. Hansen (1945) 69 Cal.App.2d 767, 770 [ 160 P.2d 173]), the executor's mere retention of the Reserve shares in the instant estate did not amount to carrying on a trade or business.

The court will presume that the profits equal the legal rate of interest during each year, but . . . where there has been wilful breach of duty, like an investment in trade or business for the trustee's personal benefit . . . compound interest may be allowed." 1 Cleaveland, Hewitt Clark, Connecticut Probate Law and Practice, § 155, p. 180; Clement v. Brainard, 46 Conn. 174, 182; Clement's Appeal, 49 Conn. 519, 538; State v. Culhane, 78 Conn. 622, 63 A. 636; Mathews v. Sheehan, 76 Conn. 654, 660, 57 A. 694. If the trustee refuses to account for the profits arising from his use of the money or if he has so mingled the money and the profits with his own money and profits that he cannot separate and account for the profits which belong to the cestui que trust, the latter may have legal interest computed with annual rests. This rule is especially applicable where involving a wilful breach of duty.

By explicit holding in Connecticut, where an administrator, acting in good faith and with ordinary care for the good of the beneficiaries, deviates with their consent from the strict line of his duty and loss results, the consenting beneficiaries cannot charge him with the loss. Mathews v. Sheehan, 76 Conn. 654, 662, 57 A. 694 (1904). The rule has been applied to situations resembling the one presented here, where stock held by a decedent at the time of his death was held after his death by executors or administrators, with the approval of beneficiaries.

See In re Estate of Mellier, 312 Pa. 157, 167 A. 358, 92 A.L.R. 430, Annotation, p. 436. Blandin, like the administrators in Mathews v. Sheehan, 76 Conn. 654, 661, 57 A. 694, 697, 100 A.S.R. 1017, may have "conducted the business of stock speculation in good faith and with ordinary care and prudence. But the law forbade" him "to enter upon * * * that business, and when charged with disobeying the law it is no answer to say that the forbidden thing was done in good faith and with ordinary care and prudence. For loss resulting from this breach of duty" he is "accountable to" plaintiff, "unless the acts which caused the loss were done with" her "consent and allowance.

" The other case is Matthews v. Sheehan, 76 Conn. 654, 57 A. 694, 100 Am.St. Rep. 1017. Here also were stock brokers' accounts. The court said that [page 696] "the `administrators, in the exercise of their best judgment, and with the approbation of the widow and the three heirs living in Connecticut, decided that it was not for the interest of the estate to place all of said stocks on the market at that time and force their sale, but thought it best to hold them for better prices, or for a distribution to the widow and heirs, as hereinbefore stated.' It is further found that in this matter the administrators acted in good faith, in the exercise of their best judgment, upon the best advice and counsel obtainable."

The authorities cited have been examined, and those on the part of the appellants are distinguished by a difference of facts. The circumstance that the executors here submitted their questions of sale and accounting to the Orphans' Court, which had the duty to decide them in the interest of the estate, and which did determine the course to be taken by the executors, distinguishes the cause at bar from many of the cases cited on behalf of the beneficiaries under the will; and, particularly, Willinger v. German Bank of Baltimore, 132 Md. 237, 241, 103 A. 433 (authorized for thirty days, but extended, without authority, for four years); Mathews v. Sheehan, 76 Conn. 654, 57 A. 694; 2 Woerner on Administration (3rd Ed.) p. 1114, n. 6; In re Shinn's Estate, 166 Pa. 121, 30 A. 1026, 1029, 1030; Zimmerman v. Fraley 70 Md. 561, 17 A. 560 (breach of direction in conventional trust). In concluding the discussion on this point, it should be noted that, in the petition of the executors filed on July 25th, 1934, requesting a further extension, the Orphans' Court passed an order extending the time to November 1st and, apparently, of its own motion, directed that all the securities belonging to the estate should be sold during this period of extension at the best prices obtainable.

In her dealings with the estate she was bound to exercise that care and prudence which an ordinarily prudent person would who was entrusted with the management of like property for another. Beardsley v. Bridgeport Protestant Orphan Asylum, 76 Conn. 560, 564, 57 A. 165; New Haven Trust Co. v. Doherty, 75 Conn. 555, 559, 54 A. 209. The securities held by the bank belonged to the estate but were subject to the right of the bank to hold and use them to secure payment of the debt. Mathews v. Sheehan, 76 Conn. 654, 660, 57 A. 694. Those securities apparently had at the time the stock of the Sterling Securities Company was delivered to the bank, a value considerably in excess of the amount of the debt. The delivery of the Sterling Securities stock was apparently made in order that the proceeds of the sale might be used to reduce the debt, with a view ultimately to discharge it and so release the collateral to the estate.

The trustee indulged in no speculative investment, nor were any of its acts speculative in character unless it be held speculative to honestly decide when it is best to sell a security, as it clearly is not. Most if not all the securities shown in the record are such as cannot be properly denominated speculative and there is no finding that any of them were such. The analogy between the present situation and that disclosed in Mathews v. Sheehan, 76 Conn. 654, 57 A. 694, upon which the petitioners rely, fails in essential particulars. In that case the administrators were aware that part of the fund which they were to administer "was subject to the great hazards of the business of stock speculation" and it was held to have been their duty to "withdraw the securities from the perilous business in which they found them pledged," but that on the contrary "they carried these accounts along as speculative accounts, for speculative purposes, in the hope of gains purely speculative and problematical," much as they had been carried on in the lifetime of the testator.

" Appeal of Matthews, 76 Conn. 654, 57 A. 694, (Supreme Court of Errors of Connecticut): In this case an administrator carried in the name of the estate speculative stock accounts on margin. Whatever the brokers required was obtained by sales of stock.

The addition to the report of the statement of this evidence would not be proper, for evidence has no place in the report of a referee. Practice Book, p. 264, § 98; Mathews v. Sheehan, 76 Conn. 654, 664, 57 A. 694. The rule of court just referred to makes it the duty of a committee to state such claims of law as were made by the parties and which either party desires to have determined by the court. This presupposes that the committee shall be informed before filing his report of the desire of a party to have his claims of law stated and carries a connotation to the effect that the committee shall state his rulings thereon.