#### The Atlantic Trust Co., as Trustee, Etc., of Elizabeth W. Whitlock, Deceased, Plaintiff, *v.*Wilson M. Powell et al., as Executors, Etc., of Benjamin M. White, Deceased, Defendants.

(Supreme Court, New York Special Term,

April, 1898.)

1. Trustees — Not charged with proper investments which result unprofitably through a general depression.

Where a trustee loans, in good faith, trust funds on mortgages upon property to the extent of only two-thirds of its value and the investment thereafter pays six per cent, interest for several years, his estate will inot at the instance of his successor, be charged with the investments, merely because the lands themselves, the same having been bid in upon sales had upon the foreclosure of the mortgages, have, since the death of the trustee, produced no income, it appearing that during all this period there has been a depression in the real estate market which has made it difficult to either rent or sell at fair prices.

8. Same — Counterclaims'—Advances of income, commissions on income, payments, etc.

Counterclaims for advances of income made to the beneficiaries by the deceased trustee and for commissions on income, not claimed by him in a brief account rendered to them, cannot be maintained. The estate of the trustee is, however entitled to be allowed half commissions on the principal and also, to reimbursements for payments which he made on the foreclosure of the mortgages for the expenses thereof, taxes, water rates and insurance, together with interest thereon.

Action to make the estate of an executor and trustee responsible for losses alleged to have been sustained in consequence of certain investments.'

*290Hand, Bonney, Pell *&*Jones (C. A. Hand, of counsel), for plaintiff.

John M. Scribner, for defendants.

Freedman, J.

The plaintiff by this action seeks to malee the estate of Benjamin. M. White, deceased, responsible for losses alleged to have been sustained by the estate of Elizabeth W. Whit-lock, deceased, in consequence of certain investments made by the said Benjamin M; White, while acting as executqr and trustee under the will of his sister, the said Elizabeth W. Whitlock.

The said Benjamin M. White died February 1, 1894, and in April, 1894, the defendant Wilson M. Powell was, by an order •of this court, appointed trustee in his place. Mr. Powell resigned ■as such trustee, and by a further order of this court, dated November 2, 1895, the plaintiff was appointed trustee in his stead under -the will of Elizabeth W.' Whitlock, deceased.

Benjamin M. White, by his own last will and testament, made the def endamts"Powell, Willits and Rider executors of his estate.

.The trust funds which came into the hands of Benjamin M. White in the year 1883, when he became sole surviving trustee of the estate of his sister Elizabeth W. Whitlock, amounted altogether to $31,000.

, 'Hie plaintiff on its appointment as trustee received from the •defendant Wilson M. Powell, the resigning trustee, certain assets -then composing the trust estate, as follows:

> L. Bond and mortgage made by Frances. J. Arm am and her husband......................... $5,500

> 2. Bond of Mary J. Bolton (one of the defendants) and her husband......................... 1,000

> "3. Note of B. M. White, dated November 1, 1892... 500

> -4. Deed of Nos. 26 and 28 Chapel street, Brooklyn,, premises purchased by B. M. White, trustee, on foreclosure of mortgage.....1.............. 18,000

> "5. Deed of No. 73 Furman street, Brooklyn, title to which was also acquired by mortgage foreclosure, 6,600

’As to the bond and mortgage made by Frances J. Annam and her husband it is conceded that .they are good security for the *291money loaned and that the interest on them has been regularly paid.

The loan on the bond of Mary J. Bolton and her husband was not made by the trustee, but by the testatrix herself, and all claim on account thereof was withdrawn by plaintiff’s counsel on the trial.

The note for $500, made by White individually to himself as trustee, is admitted to be chargeable against the defendants, and the only question as to it, is whether it is not to be set .off against the amount established by the defendants as a counterclaim. This will be considered later on.

The only remaining claims of the plaintiff relate to the investment of $18,000, in the premises 26 and 28 Chapel street, and of $6,000, in the premises 73 Furman street.

As to the premises 26. and 28 Chapel street the investment was originally made by loans on mortgage, viz.: a mortgage dated February 28, 1888, for $13,000, and a mortgage dated May 29, 1890, for $5,000. These mortgages were foreclosed and the trustee was compelled to bid in the property. He received therefor a sheriff’s deed, dated December 5, 1892' and took title to himself as sole surviving executor, etc., of Elizabeth W. Whitlock, the consideration expressed in the deed being $18,000, the aggregate principal sum secured by-the two mortgages foreclosed.

As to the premises 73 Furman street, the investment originated in a loan of $6,000, in December, 1883. This mortgage was foreclosed and the loan renewed to the purchaser upon the sale. The second mortgage was foreclosed and- the loan renewed to a new purchaser upon the sale. The third mortgage was in process of foreclosure at the time of Mr. White’s death. Thereafter the foreclosure was completed and the property bid in at the sale for the benefit of the trust estate for the expressed consideration of $6,600. From 1883 down to the time of the foreclosure of the last mortgage 6 per cent, interest was realized on the investment.

It is claimed that these investments of $18,000 and $6,000 respectively were not made by Mr. White, with the toare or prudence incumbent upon him as trustee; but, on the contrary, [the samé were negligently made, and the- securities taken for these loans were inadequate; that the investments so made by Mr. White, as, trustee, were improvident 'and disastrous, and have so resulted that ho income whatever has been realized by the beneficiaries under Mrs. Whitlock’s will for the entire period between th'e date of *292White’s decease and the appointment of the plaintiff .as trustee, and the plaintiff charges that substantial realization of the same by plaintiff of the assets turned over to it is precarious and doubtful.

But it is not claimed that Mr. White was guilty of any dishonesty or bad faith. ¡

The question, therefore, is whether he acted with reasonable prudencei in making the loans.

. The evidence shows that he invested his dead sister’s money oh like security, as he did his own money and his living sister’s money. He was, doubtless, actuated by a desire to secure for the children of his deceased sister, his own nieces,, who ¡are the beneficiaries1 named in the fourth clause of the will of Elizabeth W. Whitlock, the best possible income consistent with safety of the principal, and the loans seemed by the mortgages in question bore 6 per cent, interest, which Mr. White regularly paid /to .said nieces down to the time of his death. That Mr. White himself believed the property to be valuable, and the security good, .is shown by the.fact that he continued to pay to the said beneficiaries interest out of his own funds after the foreclosures, just as if the mortgages were still, existing. He, no doubt, expected to reimburse himself out of future rents, or from the proceeds of subsequent ¡sales. He bought in the property on foreclosure to prevent any loss to¡ the .estate he represented, and that he acted with good judgment in the matter of such purchases is shown by the testimony of the expert witnesses called by the defendants.

• The weight of the evidence is that, at the time the loans-were originally made, the Ohapel- street and Fumam street premises were adequate security, even if it be held that it was the' duty of Mr. White to loan no more upon them than about two-thirds of their respective, values; that, since that time, their values have become depreciated by reason of changes in the neighborhood over which Mr., White had no control; that Mr. White since that time did the best he could 'do under adverse circumstances; that at the time of his death in February, 1894, the premises were still worth substantially all they Oiád cost; and thatsihoe his death,"owing to the depressed condition in the market, such a depreciation! has occurred in nearly all Brooklyn property as to make it 'difficult to derive a suitable income from the premises in suit.

■ Now, Mr. White’s estate clearly cannot be held for the effects of the e’en eral depreciation which occurred after his death, and up to the time of his death he appears to have done all he could *293do, provided the loans, when originally made, constituted proper investments, and as to that the weight of the evidence is that they were.

The result may, therefore, be an unfortunate one' to the beneficiaries under the will of Mrs. Whitlock, but under the circumstances of this case the estate of Mr. White should not be held liable on the theory that the investments were originally improper. The law does not require infallibility of any trustee,

• The rule is that a trustee will not be held responsible for any losses in the management of the trust property, so long as he acted in good faith, in the exercise of a fair discretion, and in the same manner as he would ordinarily do in regard to his own property. 2 Story Eq. 154, § 1272.

*“*If a more stringent rule be applied as to the responsibility of trustees, the trust would defeat itself by deterring thoughtful, hon-. est and prudent men from engaging in the discharge of duties so hazardous and so burdensome; when one has faithfully endeavored to execute a trust, it would be both unreasonable and inequitable to make him an insurer against losses from casualties and misfortunes, which ordinary sagacity could not prevent.” Roosevelt v. Roosevelt, 6 Abb. N. C. 447, 453. Substantially to the same effect are, Ormiston v. Olcott, 84 N. Y. 339 (347); Crabb v. Young, 92 id. 56; Higgins v. Whitson, 20 Barb. 141 (146); Scott v. Depeyster, 1 Edw. Ch. 513 (534-535); Thompson v. Brown, 4 Johns. Ch. 619 (628-629).

The law being as stated the evidence is clearly insufficient to hold the estate of Mr. White liable.

The questions still remaining relate to the counterclaims of the defendants.

Advances made by Mr. White to the beneficiaries under Mrs. Whitlock’s will, on account of income, are not recoverable from the plaintiff or its trust.

There is no proof to sustain the counterclaim for. commissions on income. In his dealings with the beneficiaries "under Mrs. Whit-lock’s will up to the very last, .Mr. White rendered to them no detailed account, but he sent them a brief statement showing that he was paying to them what he considered their due as a finality.

The counterclaim for’ half commissions on the principal of the estate should be sustained. To that the defendant trustees are clearly entitled.

*294It also appears that, after the mortgages on 26 and 28 Chapel .street were foreclosed, and the property bought in for the benefit of .the trust .estate, Mr. White paid $1,413.72 for taxes, water rents and expenses of foreclosure and the additional sum of $16 for insurance on said premises. These amounts should be allowed with interest.

With the exception of the foregoing items expressly allowed,, the counterclaims should be disallowed, and the amount due on the note of $500, hereinbefore referred to, may be set off against the amounts due on the counterclaims sustained.

Ordered accordingly.