The Subrogate.
As to the question of the alleged violation of the duty of the trustees in retaining the securities, such as bank and insurance stocks, it is well settled by numerous authorities that the trustees under such circumstances, must invest, the fund in government, or real estate securities (King v. Talbot, 40 N. Y., 76). Justice Woodruff, in that case says, “ my own -judgment after an examination of the subject, bearing [359]*359in mind the nature of the office, its importance, and the consideration which alone induces a man of suitable experience, capacity, and responsibility, to accept its usually thankless burden, is that the just and true rule is, that a trustee is bound to employ such diligence and such prudence, in the care and management, as in general, prudent men of discretion and intelligence, in such matters, would employ in their own like affairs.” But he further suggests that such prudence excludes all speculation, all uncertain and doubtful risks ; that the, preservation of the fund, and the procurement of the best income therefrom, are the primary objects of the trust, and should be primarily urged.
It is quite evident that the purpose of the- testator was to provide investments which would yield a regular income for the support of his children, and the maintenance of his widow; that the trustees were chargeable with the duty of making such investments within a reasonable time after they had assumed the trust; nevertheless, it seems to be conceded by the counsel for the legatees that a reasonable time for the disposition of the irregular securities found on hand, would be 18 months, as the time afforded by the statute, for the full performance of their duties as executors.
In Lockhart v. The Public Administrator (4 Bradf., 21), it is held substantially that an administrator is not bound to make a temporary investment for the benefit of the estate, but that he may be required by the Surrogate to deposit the funds with a Trust Company, so as to be earning interest, while the estate is in process of settlement, and which I think substantially gives the executors that 18 months, in which to convert the securities on hand, and to make the necessary investment as trustees.
In the case of King v. Talbot (supra), there were ir[360]*360regular investments made by the trustees themselves, which were adjudged improper, and the trustees were charged with the amount of money so involved, with (j per cent, interest.0
The counsel for the legatees claims that the bank stock, which proved to be quite profitable, should have \ been retained by the trustees, and that it was competent for the cestuis que trustent to elect to accept such securities as they chose, and reject the others, they having withdrawn all objection to the executors’ account, so far as it related to the retention of the bank stock, which withdrawal bears date February 7th, 187(1./
I entertain no doubt that it was the duty oi the trustees to sell the securities mentioned, including the bank stock, without any objection having been made by the beneficiaries. I do not think that the objection filed to the account upon that subject, affected the rights of the cestuis que trustent. In other words, it seems to me that the sale of the bank stock was authorized by the trustees, and that the cestui que trustent were entitled to the benefit of whatever income had been derived from the bank stock up to the time of its sale, and that they had the right to discriminate in their acceptance or rejection of the income from the several accounts of stock retained, and though the language of Mr. Justice Woodruff, in King v. Talbot, above cited, page 91, was obiter, nevertheless it was based upon authority, and obvious principles of equity.
It.would be very inequitable to allow trustees to make various investments in violation of the well-settled rule of law. Because one investment should prove successful, and largely renumerative, they might use that for the purpose of relieving themselves from loss, by reason of other unauthorized investments which should prove a loss; in short, each investment should stand upon [361]*361its own merits. (See Hill on Trustees, 374.) It becomes necessary in settling the trustees’ account, in respect to a mass of securities inventoried, consisting of bank stock, insurance stock, &c., to ascertain the actual income of each particular stock; if the bank stock, paid a larger dividend than 7 per cent., the eestuis que trustent are entitled to be credited the full amount received: and as to the insurance and other stocks, where there was a loss, the income received from them should be charged against the 6 per cent interest upon the estimated value 18 months after the issuing of letters testamentary. And one of the statements or testimony seems to afford the necessary evidence to enable me to make a statement of such receipts, or income. Hence, it seems to me that it will be necessary to make a reference to take testimony upon that subject, but it may be well to suggest that the respective legatees, except the widow, can only be charged with the excess of interest paid to them, and that any excess paid to the widow cannot he allowed to the trustees, on this accounting, as’ against the other legatees, for any over payment made to the widow, which must he charged to her, and the trustees must look to her estate for the purpose of reimbursing themselves (Raly v. Ridelagh, 7 De Gex, M. & G. 104; Trafford v. Boehm, 3 Atk., 440.)
Tills seems to me to be the necessary result of the authorities cited, without regard to the question of good or bad faith on the part of the trustees, but it is due to the case to say that I find no evidence which impugns that good faith.
It is urged by the counsel for the trustees that the attempted election on the part of the legatees to receive the income of the hank stock, is not allowable under the authority of King v. Talbot, because the trust is still in force, and there is no party competent to make an election to retain the profitable investment.
[362]*362I see no good reason why the continuance of the trust should debar them from such an election. If they have the right to this accounting, it necessarily involves the right to have the trust accounts finally and authoritatively settled to the date of the present accounting; and I am not able to appreciate or perceive any difficulty on the part of the adult cestui que trustent in making-such election.
The argument would undoubtedly be good, were the cestui que trustent infants, or otherwise incapacitated from approving of the investments, or estopping themselves from objecting thereto.
As to the objection that certain discounts on notes were allowed without the authority of the Surrogate to compromise them, it is sufficient to answer that the executors had full power to do só, without any liability over to the estate, unless it were shown that they made a serious error in judgment: the statute authorizing the compromises of debts due to the estate by the executor and administrator does not confer upon those officers powers which they did not possess before, but affords additional protection when acting in good faith in the • exercise of their common law powers. (Redfield Surr. Pr., 232; Choteau v. Suydam, 21 N. Y., 179 ; Matter of Scott, 1 Redf.,
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The Subrogate.
As to the question of the alleged violation of the duty of the trustees in retaining the securities, such as bank and insurance stocks, it is well settled by numerous authorities that the trustees under such circumstances, must invest, the fund in government, or real estate securities (King v. Talbot, 40 N. Y., 76). Justice Woodruff, in that case says, “ my own -judgment after an examination of the subject, bearing [359]*359in mind the nature of the office, its importance, and the consideration which alone induces a man of suitable experience, capacity, and responsibility, to accept its usually thankless burden, is that the just and true rule is, that a trustee is bound to employ such diligence and such prudence, in the care and management, as in general, prudent men of discretion and intelligence, in such matters, would employ in their own like affairs.” But he further suggests that such prudence excludes all speculation, all uncertain and doubtful risks ; that the, preservation of the fund, and the procurement of the best income therefrom, are the primary objects of the trust, and should be primarily urged.
It is quite evident that the purpose of the- testator was to provide investments which would yield a regular income for the support of his children, and the maintenance of his widow; that the trustees were chargeable with the duty of making such investments within a reasonable time after they had assumed the trust; nevertheless, it seems to be conceded by the counsel for the legatees that a reasonable time for the disposition of the irregular securities found on hand, would be 18 months, as the time afforded by the statute, for the full performance of their duties as executors.
In Lockhart v. The Public Administrator (4 Bradf., 21), it is held substantially that an administrator is not bound to make a temporary investment for the benefit of the estate, but that he may be required by the Surrogate to deposit the funds with a Trust Company, so as to be earning interest, while the estate is in process of settlement, and which I think substantially gives the executors that 18 months, in which to convert the securities on hand, and to make the necessary investment as trustees.
In the case of King v. Talbot (supra), there were ir[360]*360regular investments made by the trustees themselves, which were adjudged improper, and the trustees were charged with the amount of money so involved, with (j per cent, interest.0
The counsel for the legatees claims that the bank stock, which proved to be quite profitable, should have \ been retained by the trustees, and that it was competent for the cestuis que trustent to elect to accept such securities as they chose, and reject the others, they having withdrawn all objection to the executors’ account, so far as it related to the retention of the bank stock, which withdrawal bears date February 7th, 187(1./
I entertain no doubt that it was the duty oi the trustees to sell the securities mentioned, including the bank stock, without any objection having been made by the beneficiaries. I do not think that the objection filed to the account upon that subject, affected the rights of the cestuis que trustent. In other words, it seems to me that the sale of the bank stock was authorized by the trustees, and that the cestui que trustent were entitled to the benefit of whatever income had been derived from the bank stock up to the time of its sale, and that they had the right to discriminate in their acceptance or rejection of the income from the several accounts of stock retained, and though the language of Mr. Justice Woodruff, in King v. Talbot, above cited, page 91, was obiter, nevertheless it was based upon authority, and obvious principles of equity.
It.would be very inequitable to allow trustees to make various investments in violation of the well-settled rule of law. Because one investment should prove successful, and largely renumerative, they might use that for the purpose of relieving themselves from loss, by reason of other unauthorized investments which should prove a loss; in short, each investment should stand upon [361]*361its own merits. (See Hill on Trustees, 374.) It becomes necessary in settling the trustees’ account, in respect to a mass of securities inventoried, consisting of bank stock, insurance stock, &c., to ascertain the actual income of each particular stock; if the bank stock, paid a larger dividend than 7 per cent., the eestuis que trustent are entitled to be credited the full amount received: and as to the insurance and other stocks, where there was a loss, the income received from them should be charged against the 6 per cent interest upon the estimated value 18 months after the issuing of letters testamentary. And one of the statements or testimony seems to afford the necessary evidence to enable me to make a statement of such receipts, or income. Hence, it seems to me that it will be necessary to make a reference to take testimony upon that subject, but it may be well to suggest that the respective legatees, except the widow, can only be charged with the excess of interest paid to them, and that any excess paid to the widow cannot he allowed to the trustees, on this accounting, as’ against the other legatees, for any over payment made to the widow, which must he charged to her, and the trustees must look to her estate for the purpose of reimbursing themselves (Raly v. Ridelagh, 7 De Gex, M. & G. 104; Trafford v. Boehm, 3 Atk., 440.)
Tills seems to me to be the necessary result of the authorities cited, without regard to the question of good or bad faith on the part of the trustees, but it is due to the case to say that I find no evidence which impugns that good faith.
It is urged by the counsel for the trustees that the attempted election on the part of the legatees to receive the income of the hank stock, is not allowable under the authority of King v. Talbot, because the trust is still in force, and there is no party competent to make an election to retain the profitable investment.
[362]*362I see no good reason why the continuance of the trust should debar them from such an election. If they have the right to this accounting, it necessarily involves the right to have the trust accounts finally and authoritatively settled to the date of the present accounting; and I am not able to appreciate or perceive any difficulty on the part of the adult cestui que trustent in making-such election.
The argument would undoubtedly be good, were the cestui que trustent infants, or otherwise incapacitated from approving of the investments, or estopping themselves from objecting thereto.
As to the objection that certain discounts on notes were allowed without the authority of the Surrogate to compromise them, it is sufficient to answer that the executors had full power to do só, without any liability over to the estate, unless it were shown that they made a serious error in judgment: the statute authorizing the compromises of debts due to the estate by the executor and administrator does not confer upon those officers powers which they did not possess before, but affords additional protection when acting in good faith in the • exercise of their common law powers. (Redfield Surr. Pr., 232; Choteau v. Suydam, 21 N. Y., 179 ; Matter of Scott, 1 Redf., 234); and there is no evidence in this case, that the compromises made were not judicious, or that a larger sum might have been realized by the executors.
The error in the statement of the value of the 328 shares of the Tradesman’s National Bank, being an understatement of $25.62, and of 280 shares of the American Exchange Bank stock being an under-estimate of $174,—as also the -$64.00 over statement of Home Eire Insurance stock, should be corrected accord- ' ing to the fact.
[363]*363The objection that the executors failed to collect the debts, or to bring suits for the same, seems to me untenable, for the reason that the debts in question were such as were inventoried as worthless, and there is no evidence tending to show that any such debts were collectable, and under the circumstances appearing in the testimony, it seems to me that it would have been an unauthorized expense to the estate, to have prosecuted such claims, as were inventoried under the advice of the bookkeeper of the testator, as worthless.
The objection to the large payment by the executors, of the debts of the firm, is equally untenable, because they derived their information as to the validity of such claims against the estate from the books of the testator, and it seems to me that it would be an extraordinary precaution to require additional vouchers for such claims.
As to the payment to the then late servants of the deceased, it was sufficient authority for them to pay those claims when made, and the widow,who must have been conversant with the facts, informed the trustees that the claims were just and valid, and it should therefore be allowed as charged.
I have now reached a question involved in this case, of considerable embarrassment, which is, the objection interposed to the charges made by the executors and trustees for the payment of taxes, insurance, and repairs upon the Elizabeth property.
It is well settled that all ordinary taxes, assessments and interest on encumbrances and charges for repairs, must be paid out of the income by the life tenant (Hepburn v. Hepburn, 2 Bradf., 74; Griswold v. Griswold, 4 Id., 216; Sheldon v. Ferris, 45 Barb., 124; Pinckney v. Pinckney, 1 Bradf., 269; Booth v. Ammerman, 4 Id., 129); but it is also held that a municipal assessment [364]*364for the flagging of sidewalks, and other improvements, must be apportioned between the tenant for life, and the remainderman.
In Stillwell v. Doughty (2 Bradf., 311), it was held that the tenant for life must pay the annual interest upon the assessment, but that the principal is chargeable to the remainderman, and this division of the burden, is put upon the ground, by Surrogate Bradford, that a life tenant has the benefit, and the use of the permanent improvement, while the improvement itself enures to the benefit of the remainderman.
In Peck v. Sherwood (56 N. Y., 615), the same principle is declared. It is also held in that case that the expenses for insurance, and placing lightning rods on the building, should be apportioned, although the case does not disclose the proportion which the court deemed propel to charge upon the respective estates, but the decision of the case of Stillwell v. Doughty (supra) seems to be reasonable and just. I am not able to discover any evidence in the will in question indicative of an intent on the part of the testator to charge his estate with the payment of taxes and assessments, the making of the necessary repairs on the Elizabeth property: Under these authorities, it seems to me that any repairs which do not come under the head of ordinary repairs, but are necessary and permanent improvements to the estate, should be chargeable to the tenants for life, and to the remainderman, or the residuary estate, in the proportion suggested by the above authorities; in other words, that a life tenant must be held liable for the interest upon the permanent improvements, and the estate held liable for the improvements themselves, but that temporary, or ordinary repairs are chargeable against the life tenant, and that in this case they aire so chargeable, except so far as they appear to have been [365]*365made on the credit and responsibility of the widow, to whose estate the trustees must look for their reimbursement, unless they shall appear to have assets in their hands belonging to her, but the testimony upon, the subject of such taxes, improvements, insurance, &e., is not sufficiently specific to enable me to determine the appropriate charges to the respective interests, and the matter will have to go to a reference for further proof upon that subject, so that the separate expenditures whether for permanent or temporary repairs may be clearly stated.
As to the question of the validity of the note for 54,982.57 executed by the testator under seal, dated December 29th, 1862, I entertain no doubt upon the testimony as to the execution of the note, nor do I think that the failure on the part of the claimant to enforce payment of the note, or the lapse of time, in any way militate against the validity of the note. Such delay may be entirely consistent with the liability of the estate to pay, and the right of the owner to enforce payment; nor does the fact that the widow persuaded the owner to delay the enforcement either of interest or principal, impair its validity. While those circumstances were competent as evidence upon the subject of its validity, yet in the absence of any proof of payment, or release of the liability, or any other circumstance affecting its validity, the note must be held valid, unless it he barred by the statute of limitations.
As the note purports on its face, and by the terms of the instrument to be under seal, there seems to be no doubt of the seal, such as it is, having been attached at the time when it was signed. It is objected by the counsel for the legatees that the instrument is not under seal, as the so-called seal is not made of wax, or wafer, or any other substance capable of being impress[366]*366ed, but is simply a paper seal, without the accustomed wafer, or wax beneath it. Webster defines a seal to be wax affixed to a letter, or instrument, and impressed with a seal, also wax, wafer, or other adhesive substance which closes a letter, or other paper, that which confirms, or secures—confirmation—authentication—attestation. Bouvier, in his dictionary, defines a seal to be an impression upon wax or wafer, or some other tenaious substance capable of being impressed; and this is the common law definition. By section 61 (2 Statutes at Large, 420,) it is provided that the seal of any court, or public officer may be affixed by an impression directly on the paper, and shall be so valid as if made by a wafer, or wax; but the 62d section provides that this latter section shall not extend to private seals, which shall be made as heretofore, on wafer, wax, or some similar substance.
In Coit v. Millikin (1 Denio, 376), Chief Justice Bronson, in discussing the sufficiency of a seal of the State of Michigan, which was impressed upon paper, not upon wax, of other adhesive substance, says, “at common law a seal is an impression upon wax, wafer, or some other tenacious substance; the impression upon paper alone is not a seal except where it has been made so by statute.” To the same effect is Warren v. Lynch (5 Johns., 238).
In Ross v. Bedell (5 Duer, 462), Judge Dúer, in discussing the question whether a notarial certificate was sufficient with the seal stamped upon the paper says: “ we are clearly of opinion than an actual seal stamped upon paper of sufficient tenacity to receive and retain the impression, must be deemed » seal in the technical sense, and within the strict definition of the common law,”—citing also the case of Curtis v. Leavitt (17 Barb., 318), as authority for that principle; but though this [367]*367decision by Judge Dues, was in March, 1856, he makes no reference to the statute above referred to, passed in 1848, authorizing such an impression as a seal. In the case of Curtis v. Leavitt, (supra) Mr. Justice Boosevelt, held that bonds issued by a Trust and Banking Company were sufficiently sealed by the impression of a seal upon paper not impressed upon wax, or wafer, but stamped into the paper. He says, “the whole discussion on this point every sensible man must admit, were it not for some unfortunate dicta in the books, would look very much like childish triflingyet that judge fails to consider the force of the Revised Statutes above cited.
It is in evidence in this case that the testator intended to seal the instrument in question, and that what purported to be such, was so recognized by the parties, when he executed the note in question, and I am of the opinion under the authorities, that the paper called the seal, which was affixed by moistening the mucilage upon it, in order to make it adhere and the stamping of it for. that propose, constituted to all intents and purposes, a seal according to common law, for the mucilage was a substance sufficiently tenacious to adhere, and receive an impression, and it appears to have had that impression.
The object of a seal is doubtless to receive a permanent impression, and that at- the time of the early authorities defining a common law seal, the subsistence of mucilage was unknown, but it seems to me that that substance answers the purpose of a permanent impression, much more than does an impression upon wax; the one adheres by means of moisture, the other of heating, but the wafer adheres by moisture also; besides, it seems to me that it would be an extraordinary principle to hold as between individuals making and enforcing [368]*368contracts, recognized and understood by both parties to be under seal affixed for the purpose of affecting the result, that the seal should be denied that effect; certainly, no question of public policy would forbid, and I have no hesitation in holding that the note in question is a sealed note for all practical purposes, and therefore not barred by the statute of limitations, and must be allowed to the executor holding the same.
The evidence that the owner of this note never intended to enforce it, and was induced to present it, because of what he supposed to be an improper, and unjust litigation of the claims of the trustees, constitutes no legal objection to its enforcement, and in no way militates against the validity of the claim, and even a verbal agreement not to enforce it, without consideration, would be void. I think the claimant entitled under all the facts disclosed to the amount of the note according to its terms.
As to the claim of the counsel for the legatees that no commissions should be allowed the executors in this matter, an examination of the testimony has satisfied me that the executors have not wilfully committed any breach of trust, nor have they been guilty of any vexatious conduct in their treatment of the estate. It is true that they have retained irregular securities contrary to the requirements of the law, yet they were securities paying a large income, until the entirely unforeseen and most extraordinary disaster, to wit: the Chicago fire, occurred, which swept away much of the capital of those insurance companies, and nevertheless they continued to pay the legatees as though the income had continued. I am not able to find any evidence of such dereliction of duty as would justify a refusal of commissions.
As to the question of the costs of this proceeding, [369]*369though some irregularities have been shown in respect to the trustees’ account, rendering this investigation more difficult and embarrassing and expensive, yet according to my views herein expressed, several matters of considerable moment have been objected to and litigated, which have resulted adverse to the objectors. I am not prepared to say that an undue proportion of the litigation has resulted from the neglect or misconduct of' the executors, and I see no good reason why the estate should not pay the expenses of the same. As to the amount to be allowed the respective counsel, let that question be reserved until the final decree.
Decree accordingly.