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highest importance that competent parties

(219 N. Y. 554, 635) be held to the terms of their valid contracts.

PRATT et al. v. STATE, “The transactions in question related to interstate commerce; -consequent rights and (Court of Appeals of New York. Oct. 17, 1916.

On Motion for Reargument, Dec. 5, 1916.) liabilities depend upon Acts of Congress, agreement between the parties, and common

On Motion for Reargument. law principles accepted and enforced in fed- APPEAL AND ERROR OW221–OBJECTION BEeral courts." Southern Express Co. v. Byers,

LOW. 240 U. S. 612, 614, 36 Sup. Ct. 410, 60 L. Ed. An objection that recovery was not limited 825; N. Y. Central v. Beabam, 242 U. S. to the basis warranted by the evidence cannot 148, 37 Sup. Ct. 43, 61 L. Ed. It has be raised for the first time on appeal. been held, in cases involving negligence or the [Ed. Note.-For other cases, see Appeal and acts of third parties, that where alternate Error, Cent. Dig. 88 1353-1356, 1359, 1361

1363, 1365–1367; Dec. Dig. 221.] rates, fairly based upon valuation, are offered, liability may be limited by special con 6- Appeal from Supreme Court, Appellate Ditract (Cincinnati, N. O. & Tex. Pac. Ry, Co. vision, Third Department. v. Rankin, 241 U. S. 319, 36 Sup. Ct. 555, 60 Action by George L Pratt and others L. Ed, 1022); that where a valuation has against the State of New York. From a been agreed upon between the shipper and judgment of the Appellate Division (172 App. the carrier, such value shall be the maximum Div. 914, 160 N. Y. Supp. 1143), affirming an amount for which any carrier may be held award of the Board of Claims in a proceedliable, whether or not the loss or damage ing to recover the value of certain lands and occurs from negligence (Cleveland, C., C. water power rights and privileges which, & St. Louis Ry. Co. v. Dettlebach, 239 U. S. claimants contend, were owned by them and 588, 593, 36 Sup. Ct. 177, 60 L. Ed. 453); appropriated by the state, pursuant to the that having obtained a rate based on the de provisions of the Barge Canal Law (Laws clared value, the shipper is concluded and 1903, c. 147), for barge canal purposes. The there is no room for parol evidence to show State appeals. Affirmed. otherwise (Mo., K. & T. Ry. Co. v. Harriman, 227 U. S. 657, 670, 33 Sup. Ct. 397, 57 L. Ed.

Egburt E. Woodbury, Atty. Gen. (Edward 690); that so long as the tariff based on value J. Mone, Dep. Atty. Gen., of counsel), for apremained operative, it was binding upon the pellant. Edward R. O'Malley, of Buffalo, shipper and carrier alike, and was to be en- and D. Raymond Cobb, of Syracuse, for reforced by the courts in fixing the rights and spondents. liabilities of the parties (Great Northern Ry. Co. v. O'Connor, 232 U. S. 508, 515, 34 Sup. PER CURIAM. Judgment afirmed, with Ct. 380, 58 L. Ed. 703; Atchison, T. & S. F. costs. Ry. Co. v. Robinson, 233 U. S. 173, 180, 34 Sup. Ct. 556, 58 L. Ed. 901); that the ques WILLARD BARTLETT, C. J., and HIS. tion is not one of form, but of actuality COCK, CHASE, HOGAN, and POUND, JJ., (Southern Ry. Co. v. Prescott, 240 U. S. 632,

concur. CUDDEBACK and CARDOZO, JJ, 639, 36 Sup. Ct. 469, 60 L. Ed. 836), and that

dissent the effect of the stipulation cannot be escaped by the mere form of the action, the scope

On Motion for Reargument and effect of which is an action for dam

PER CURIAM. The grounds upon which ages against the carrier (Georgia, F. & A. the reargument is asked are as follows: Ry. Co. v. Blish M, Co., 241 U. S. 190, 197,

That the court overlooked the fact that 36 Sup. Ct. 541, 60 L. Ed. 948). The conten- while claimants' title to or interest in the tion of appellant that the agreed value does Battle Island state dam and in or to the use not conclude the shipper as against the acts of the water of the Oswego river rose out of of employés outside the scope of their em- and was fixed and established by the canal ployment cannot be sustained without ig- appraisers' award of Septeniber 25, 1869 (Exnoring the terms of the contract, disregard-hibit 40-A), when the crest elevation of the ing the intent of the parties and of the acts Battle Island dam was 307.22 barge canal of Congress regulating interstate transporta- datum, the judgment appealed from allowed tion and holding the carrier to a different claimants the value of the use of one-half responsibility than that which it assumed. of the surplus water of the river was develop

The order should be affirmed, with costs, ed at the time of the filing and service of and the question should be answered in the said appropriation maps,” to wit, as of May, affirmative.

1911, when the crest of the dam was at eleva

tion 308.5 barge canal datum. In other WILLARD BARTLETT, C, J., and words, that subsequent to the making of the CHASE, COLLIN, CUDDEBACK, ITOGAN, canal appraisers' award of 1869, to wit, in aud CARDOZU, JJ., concur,

1904, the state, for the purpose of improving

the navigation of the Oswego river, raised Order affirmed.

the crest of this state canal dam 15 inches

(from 307.22 to 308.5 barge canal datum);

(219 N. Y. 482) and the judgment appealed from awards VILLARD et al. v. VILLARD et al. claimant the value of the use of one-half of (Court of Appeals of New York. Dec. 28, 1916.) the surplus water of the river with the crest of the dam at the latter, instead of at the 1. EXECUTORS AND ADMINISTRATORS ew102– former, elevation.

INVESTMENTS BY EXECUTOR. It is contended that the Board of Claims to convert the assets of an estate into cash and

While the primary duty of an executor is adopted an erroneous basis of valuation. pay debts and gifts and bequests, circumstances The board finds (XXXI, p. 985) that the may arise making it his duty to invest uninclaimants owned the Van Buren mill and vested funds, or change investments of testator,

as where they are palpably unsafe. power as developed by the Van Buren dam.

[Ed. Note.-For other cases, see Executors and It also concludes (VI, p. 999) that claimants Administrators, Cent. Dig. '$ 420; Dec. Dig. are entitled to the value of their property, m102.) including the value of the use of the flow of 2. EXECUTORS AND ADMINISTRATORS 103, the water as developed in 1911, and makes 115-INVESTMENT OF ESTATE FUNDS LIABILits award accordingly. It appears (XLVIII,

ITY OF EXECUTOR. . p. 993) that the Van Buren dam had in 1867 contrary to the provisions of the will or Dece

If an executor invests funds of the estate an elevation of 307.22 feet, and that in 1904 dent Estate Law (Consol. Laws, c, 13) $ 111, as the crest of the dam was raised by the state to securities in which trust funds may be in1.28 feet to an elevation of 308.5, and that vested, he is liable for any loss that may result, the water power thus developed is what has without the right to any profit that he may make

by such investment. been appropriated by the state. There is no

(Ed. Note. For other cases, see Executors and finding of fact that the claimants are enti- Administrators, Cent. Dig. 88 421, 422, 467, 468; tled to the use of the flow of the water as Dec. Dig. Om 103, 115.] developed in 1911. In his opinion Judge 3. EXECUTORS AND ADMINISTRATORS Om103– Haight says (fol. 4691):

INVESTMENT or ESTATE FUNDS LIABILITY "The new (1867) dam so constructed by the

OF EXECUTOR. state was about sixteen inches higher than the

It is optional with beneficiaries of the estate old (1828) dam, thus raising the water level."

to hold the personal representative liable for the

amount of funds that he has invested improperHis award might seem to be based on this ly, or to accept the investment as made. theory, but the findings are that the 1828 dam (Ed. Note.-For other cases, see Executors and and the 1867 dam were of the same elevation Administrators, Cent. Dig. Ś8 421, 422; Dec. (LXVII, p. 993). The facts as found show a

Dig. Om 103.) property right in a water power developed 4. EXECUTORS AND ADMINISTRATORS Eww114by the 1867 dam, but the award is based on

INVESTMENT OF ESTATE FUNDS-ESTOPPEL

OF RESIDUARY LEGATEES. a water power developed by the 1904 dam.

Where executors, at the request of residuary The evidence makes reference to flash boards legatees, made investment of funds of the estate which raised the 1867 dam 16 inches above in securities not authorized by law or by the will, its crest, but they are not referred to in the the residuary legatees were estopped to assert findings. There is no finding of fact that the any personal liability against them in case of

loss. claimants were the owners of any additional

[Ed. Note.--For other cases, see Executors and water power created by raising the crest of Administrators, Cent. Dig. 88 465, 466; Dec. the dam in 1904. The award may be sustain-| Dig. Ow114.] ed by reference to the evidence as to the 5. EXECUTORS AND ADMINISTRATOKS Ow303(1) flashboards by which the 1867 dam was rais

-PAYMENT OF LEGACIES. ed 16 inches, so that, while the crest of the direction in a will is ordinarily payable in cash,

A legacy or other payment pursuant to a dam was raised in 1904, the flow remained the but this rule does not prevent any other form of same as in 1867. It seems that this was the payment which is acceptable to the payee. theory upon which the case was tried. The [Ed. Note. -For other cases, see Executors and appellant's brief (page 87) states that: Administrators, Cent. Dig. 88 1229-1238; Dec. “There is no evidence whatsoever from which

Dig. Cum 303(1).] the value of the use of this water under the 6. TRUSTS 218(1) - INVESTMENTS - TRUShead which existed from 1867 to 1904 could be TEE'S LIABILITY FOR Loss. determined. The oply evidence offered by ei Under a will directing the executors to set ther claimants or the state was as to the value apart to a trustee, for annuity fund, sufficient of the water power under the head as it existed cash or securities to pay such annuities, and at the time of the appropriation in 1911." relieving the trustee from liability for loss from It is too late for the state, having gone they had been owned by testator at his death,

retaining securities so received by it in case through the trial without raising the objec- although not legal trust fund securities, the trustion, to make the point that the limit of the tee was liable for loss resulting from its retain. recovery is the value of the use of one-half ing, without reinvestment in authorized securi. of the surplus water employed under the head ties, stock received by it from the executors,

which had been purchased by them for the esavailable in 1867, without the flashboards. tate after testator's death; the trustee not hav.

This question was considered carefully on ing a right as a matter of law to assume that the determination of the appeal. The motion stocks submitted to it by the executors were ownshould therefore be denied, with $10 costs. ed by testator at his death, and the facts being

discoverable by inguiry. All concur.

[Ed. Note. For other cases, see Trusts, Cent. Motion denied.

Dig. $$ 310-312; Dec. Dig. Om 218(1).]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexa

7. APPEAL AND ERROR_w101001)-REVIEW- the executors of this my will out of the general QUESTIONS OF FACT-FINDINGS.

income of my estate; and I direct that if in The Court of Appeals is bound by findings any year the net income of the sum or fund set when supported by some evidence.

apart to provide such annuity shall be insuffi[Ed. Note. For other cases, see Appeal and cient to pay the full amount of such annuity Error, Cent Dig. 88 3979–3981; Dec. Dig. On the trustee for the time being, of such trust, 1010(1).]

shall make up and pay the deficiency out of the

capital of the said trust fund; and I direct that Appeal from Supreme Court, Appellate any and all surplus income of the said fund in Division, Second Department.

any year, after the full payment and satisfac

tion of the said annuity, shall be paid by the Action by Fanny Garrison Villard, indi- trustee for the time being of the said trust to vidually, and others, against Fanny Garri- the persons to whom by the twenty-first article son Villard, as executrix, and others, as ex- of this my will I have given and bequeathed my ecutors, etc., of Henry Villard, deceased, residuary estate in the like shares in which I

so give and bequeath to them my residuary esand others. · From a judgment of the Appel- tate and I give and bequeath such surplus inlate Division (166 App. Div. 203, 151 N. Y. come to them accordingly; and upon the death Supp. 1027) affirming a judgment of the Spe of my said daughter I direct that the trustee for cial Term against the Farmers' Loan & Trust fer, deliver and pay over the capital of the said

the time being of the said trust, convey, transCompany, as trustee, the trust company as trust estate or fund, with all gains, and increase trustee and also in its own right appeals. capital, if any, to such of my sons Oswald VilAffirmed.

lard and Harold Villard as shall survive my

said daughter and the issue who shall survive The facts, so far as material, are stated in my said daughter of such of them as shall have the opinion.

previously, died in equal shares per stirpes, and

not per capita." Charles F. Brown, of New York City, for Seventh. (The testator gave and bequeathed appellant. James Byrne, of New York City, to his sister Emma, the wife of Lieutenant Genfor respondents executrix and executors.

eral Von Xylander of the city of Munich in

Bavaria, an annuity or yearly sum of twenty William M. Wherry, Jr., of New York City, thousand reichsmark. The gift is made in exactfor respondents plaintiffs. Frederic E. My ly the same language and upon exactly the same gatt, of New York City, for respondents Hel- trusts provided in his gift to his daughter Ilelen, en Villard Bell and others.

as quoted, except that the final clause directs that after the death of his sister the trustee for

the time being of the said trust “convey, transCHASE, J. Henry Villard died November fer, deliver and pay over the capital of the said 10, 1900, leaving a will which was duly pro- estate or fund with all gains and increase of bated December 29, 1900, and his widow, by the twenty-first article of this my will, I give,

capital thereof, if any, to the persons to whom, Fanny Garrison Villard, his friend, Horace and bequeath my residuary estate and in the White, and his late private secretary, like shares in which I so give and bequeath to Charles A. Spofford, were duly named as ex- them my residuary estate and I give and be ecutrix and executors and qualified as such. queath the same to them accordingly.").

“Twenty-Third. I hereby will and declare that The will, so far as now material, provides the executors of this my will may in their disas follows:

cretion retain unsold for so long as they shall "Sixth. I give and bequeath to my daughter think fit, any and all stocks and bonds and Helen, an annuity or yearly sum of six thousand other securities and other personal property or dollars, to be paid to her in equal quarterly in assets which shall belong to me at the time of stallments from the time of my death during her my death and pot by this will specifically benatural life, the first of such installments to be queathed, and for any loss resulting from any paid to her at the expiration of three months such retention such executors shall be in no wise next after my death, and in order to provide for liable or responsible. such annuity I direct that the executors of this

“Twenty-Fourth, I hereby will and declare my will hereinafter named as soon as practicable that the trustees or trustee for the time being after my death, set apart a sum of money or of any trust by this my will created may in the securities to an amount or of value in their discretion of such trustees or trustee retain as judgment amply sufficient to provide from the investments of the trust estate or fund for so annual income thereof the sum of six thousand long as such trustees or trustee shall think fit dollars in each year over and above all taxes, any bonds or other securities belonging to me charges, commissions and expenses lawfully at the time of my death which may be received chargeable against or in respect of the said fund by such trustees or trustee from the executors or the income thereof, and transfer, deliver and of this my will as part of the trust estate or pay over the same to the Farmers' Loan & Trust fund although the same may not be of such charCompany of New York, to which company I acter as is permitted for investments by trusgive and bequeath the same to be had and holden tees by the general rules of law, and I do hereby by the said company and its successors in the will and declare that investments and reinvest. trust, as trustee, in trust during the natural life ments of moneys at any time belonging to or of my said daughter Helen, to invest and keep forming part of any trust estate or fund by this invested the same, with power to call in and my will created may be made by the trustees change the investments thereof from time to time or trustee for the time being of such trust in and to collect and receive the income thereof, bonds or stocks of the United States or in bonds and after paying thereout all lawful expenses of any state or of any city in the United States and charges, to pay to my said daughter the said or in bonds secured by first mortgages on real sum of six thousand dollars free from all de estate in the United States or in first mortgage ductions, in each year during her natural life bonds of any railroad or railway company, or in equal quarterly installments as aforesaid ; | in productive real estate situated within the and until such sum or fund shall be set apart, United States and for any loss resulting from transferred and delivered to the said the Farm- any investments so made the trustees or trustee ers' Loan and Trust Company of New York as making the same shall not be liable or responsi aforesaid I direct that such annuity be paid by l ble."

*

The testator gave one-half of his residua- viz. Mrs. Helen V. Bell, Bergstrasse 38, Dresry estate to his wife, and one-fourth each den, Germany, all quarterly installments of the to his two sons. He left a personal estate annuity provided for, up to and including No

vember 12, 1901. The next quarterly installamounting to about $3,000,000, of which ment, therefore, will be due February 12, 1902. about $530,000 was in cash. A gift by the “A quarterly dividend upon the shares of the will to his wife of $250,000 was paid to her Metropolitan Street Railway Company has been in cash, January 10, 1901, and a gift to his which I wiù send you a check for the amount.

declared payable January 15th, upon receipt of son Oswald of $50,000 was paid December “Please sign and return to us the accompany30, 1901, partly in cash and partly in se ing form of receipt and oblige.* curities. Substantially all of his gifts to in With said letter the stocks as therein menstitutions and persons other than as pro- tioned were delivered to said trust company, vided by said paragraphs 6 and 7 of the will and it gave to the executors a receipt of and of the residuary estate were paid by the which the following is a copy: executors by January 7, 1902.

"Received from Fanny Garrison Villard, exThe deceased's indebtedness other than a ecutrix and Horace White and Charles A. claim of one Wetmore aggregated about $34,- Spofford, executors of the last will and testa000. One Wetmore presented a claim against (500) shares of the preferred capital stock of

ment of Henry Villard, deceased, five hundred the estate of several hundred thousand dol- the Milwaukee Electric Railway & Light Co. lars. The executors attempted to compro certificates Nos. A 46, 47, 48, 49, 50, all regmise such claim, but were unable to make a istered in the name of Henry Villard, and five settlement for several years. The claim was Metropolitan Street Railway Co. Nos. 16336,

hundred (500) shares of the capital stock of the finally settled in 1910 for $5,000. In March, 17507, 17508, 17509 and 17510, all registered 1901, the residuary legatees delivered to the in the name of C. A. Spofford, to be held by this executors a letter, the material part of which company as trustee under the sixth clause of

the will of said Henry Villard." is as follows: "We hereby request you to sell as many of

A similar letter was delivered to the trust the bonds belonging to the estate as can be dis- company relating to the trust for the beneposed of to advantage at the present market fit of Madame Von Xylander, except that prices and to invest the proceeds arising therefrom in the following named and such other divi- the stocks therein mentioned and therewith dend paying stocks as you deem safe:

delivered consisted of 550 shares of the MilBaltimore & Ohio,

Preferred.

waukee Electric Railway & Light Company Metropolitan Street Railway.

and 500 shares of the preferred stock of the The executors and executrix in compliance Baltimore & Ohio Railroad Company. with such request prior to March 3, 1902, The trust company delivered to the execusold bonds and stocks belonging to the estate tors a receipt similar to the one given to at the market price and purchased other them relating to the trust for the benefit of stocks, paying therefor in the aggregate $1,- the testator's daughter Helen. The stocks 028,528.42. Included in the stocks so pur- of the Milwaukee Electric Railway & Light chased was 500 shares of the Metropolitan Company so delivered were owned by Henry Street Railway Company, and 1,000 shares Villard at the time of his death. The stocks of the Baltimore & Ohio Railroad Company of the Metropolitan Street Railway Company preferred stock.

and of the Baltimore & Ohio Railroad ComOn or prior to January 9, 1902, one of the pany were a part of the stocks purchased by executors went to the Farmers' Loan & Trust the executors in compliance with the reCompany, and there talked with its secre- quests made to them by the residuary legatary and told him what securities the execu- tees. The stock certificates of the Metropoltors proposed to place in the trusts provided itan Railroad Company and the Baltimore by the sixth and seventh paragraphs of the & Ohio Railroad Company were all dated will, and asked if the securities proposed subsequent to the death of Henry Villard were satisfactory, and he was told by the and were in the individual name of the exsecretary that such securities would be sat- ecutor Spofford. isfactory for said trusts. On the 9th day The value of the stocks so delivered for of January, 1902, the executors delivered to the trust for the benefit of the testator's said Farmers' Loan & Trust Company a daughter Helen, at the time of the delivery, letter, the material parts of which are as was about $142,000, and of the stocks So follows:

delivered for the benefit of Madame Von "In compliance with the direction contained in Xylander was about $114,000. A large part article sixth of the last will and testament of of said stocks have been retained by the Henry Villard, deceased, a copy of which we trust company without change. The stocks have furnished you, we herewith deliver to you: Five hundred (500) shares of the preferred cap- of the Metropolitan Street Railroad Compaital stock of the Milwaukee Electric Railway & ny have become wholly or substantially Light Company certificates Nos. A 46, 47, 48, worthless, and the stocks of the Baltimore 49, 50, all registered in the name of H. Villard; and five hundred (500) shares of the cap- & Ohio Railroad Company were at the time ital stock of the Metropolitan Street Railway of the accounting materially reduced in marCompany certificates Nos. 16336, 17507, 17508, ket value. 17509, 17510, all registered in the name of C.

The trust company did not have actual noA. Spofford-to be held by you as trustee for the purposes of the trust, thus created. We tice that the stocks of the Metropolitan Street have paid to the beneficiary under this trust, Railway Company and the Baltimore & Ohio

Railroad Company did not belong to Henry | Railroad Company by the exercise of ordinary Villard at the time of his death until No- care could have known that neither said stocks vember 12, 1912. The executors did not have nor either of them were owned by the testator

at his death." a settlement of their account prior to the "XXXIII. The trust company at all times aftaccounting in this action. In October, 1911, er the delivery to and acceptance by it of said the plaintiffs, the residuary legatees, brought shares of the capital stock of the Metropolitan this action to compel an accounting by the exercise of reasonable care have ascertained,

Street Railway Company new, or could by the executors and the Farmers' Loan & Trust that its investment in said shares of stock was Company as trustee under the sixth and unsafe and insecure and was continuously grow. seventh provisions of said will, "and that ing more unsafe and insecure. this court ascertain, determine, adjudge, and ceptance thereof by the trust company, was a

"XXXIV. Six months from and after the ac declare what amounts are due and owing reasonable time within which to sell said shares and properly payable to the plaintiffs as of stock of the Metropolitan Street Railway residuary legatees under the said last will Company and said shares of the preferred stock

of the Baltimore & Ohio Railroad Company of Henry Villard, deceased; and that the and reinvest the proceeds thereof, and said provisions of the said will of Henry Villard, shares of stock could by the exercise of ordinary deceased, in respect to the amounts above care have been sold and disposed of in the open mentioned, be construed as to the right in- prices of $164 per share for said shares of stock

market during said period of six months at tent and meaning thereof, and the rights and of the Metropolitan Street Railway Company duties of the trustees, executrix, and execu- and $96 per share for said shares of the pretors thereof, and of the parties to this ac- ferred stock of the Baltimore & Ohio Railroad

Company. tion, be determined and declared."

"XXXV. The trust company as such trustee The court at the trial found:

was guilty of negligence in retaining as an in“X. The said 500 shares of the capital stock vestment of the trust created by the sixth paraof the Metropolitan Street Railway Company graph of said will said 500 shares of the capital had at the time of the delivery thereof by the stock of the Metropolitan Street Railway Comexecutors to the trust company as aforesaid a pany and in failing to sell the same and reinmarket value of $164 per share, and the said vest the proceeds thereof. shares of the capital stock of the Metropolitan

"XXXVI. The loss of the value of said 500 Street Railway Company could have been sold shares of the capital stock of the Metropolitan during four months next after the delivery of Street Railway Company and of the principal said shares to the trust company as aforesaid of the trust created by the sixth paragraph of for a sum in excess of $82,000.

said will was caused by wrongful retention by “XI. The said stock of the Metropolitan the trust company of said shares as an investStreet Railway Company at the time of the said ment of the trust created by the sixth paradelivery thereof, and for more than a year prior | graph of said will and by the negligence of the thereto, had regularly paid dividends at the rate trust company in retaining said shares and in of?' per cent. per annum, and at the time of failing to sell the same and reinvest the proceeds said delivery said shares of the stock of the thereof. Metropolitan Street Railway Company produced

"XXXVII. Said 500 shares of the preferred an annual income of $3,500.

capital stock of the Baltimore & Ohio Railroad "XII. The said 500 shares of the preferred Company have since May 1, 1902, depreciated capital stock of the Milwaukee Electric Rail- in value to the extent of $3,500 and have caused way & Light Company and the 500 shares of a loss in the principal of the trust created by the capital stock of the Metropolitan Street the seventh paragraph of said will of $3,500. Railway Company were accepted by the trust "XXXVIII. Said loss in the principal of said company in full payment, satisfaction, and dis- trust created by the seventh paragraph of said charge of the bequest made to the trust com- will was caused by the wrongful retention by the pany by the sixth paragraph of said will, and trust company as an investment of said trust of were at the time of such delivery of a value said 500 shares of the preferred capital stock amply sufficient to produce the sum of $6,000 of the Baltimore & Ohio Railroad Company by in each year over and above all taxes, charges, its failure to sell said shares and reinvest the commissions, and expenses lawfully chargeable proceeds thereof. against or in respect of said fund or the in "XXXIX. During the year 1902 safe investcome thereof, and were in the judgment of the ments could by the exercise of ordinary care be executrix and executors of a value amply suffi- secured in first mortgage bonds of railway comcient for such purpose.'

panies and in first mortgages on real estate in "XVII. Said 550 shares of the preferred cap- the United States to yield not less than 442 per ital stock of the Milwaukee Electric Railway & cent, on the amount so invested." Light Company and 500 shares of the preferred capital stock of the Baltimore & Ohio Rail

The court charged the appellant with the road Company were of a value amply sufficient losses to said trusts arising from depreciato provide from the income thereof the sum oftion of the stocks in the Metropolitan Street 20,000 reichsmark in each year over and above Railway Company and in the Baltimore & all taxes, charges, commissions, and expenses lawfully chargeable against or in respect of the Ohio Railroad Company. It was not by stat. said fund or the income thereof, and were in the ute authorized to hold said stocks as a part judgment of the executors amply sufficient for of the trust funds. Its authority by will is such purpose, and the said shares of stock did at said time and for long prior thereto provide stated in the twenty-fourth paragraph there an income in excess of 20,000 reichsmark over of quoted. and above all the taxes, charges, commissions,

In the voluminous briefs presented to us and expenses lawfully chargeable against or in respect of said fund or the income there- herein, much is said about the respective duof.

ties of executors and trustees. It is only "XXVI. The trust company at the time of necessary to consider the duties of each so the delivery to and acceptance by, it of said far as such consideration is essential for the shares of the capital stock of the Metropolitan Street Railway Company and said shares of the purpose of determining whether the judg.

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