267 A.D. 783 | N.Y. App. Div. | 1943
Appeal by a testamentary trustee from so much of a decree of the Surrogate’s Court, Westchester County, as surcharged the trustee for negligence in retaining in the trust fund certain guaranteed mortgage certificates in violation of the directions of the testator as expressed in his will, and from an order denying the trustee’s motion that the Surrogate file an amended opinion and decision showing the grounds or basis of the property values which he found. Decree and order, insofar as appealed from, unanimously affirmed, with one bill of costs to respondent Harold D. Toomey, as special guardian for Muriel Joan Campbell, payable by the trustee and not out of the estate. The Surrogate’s holding that the appellant was negligent in its conduct as trustee was proper. The appellant’s contentions to the contrary are unimpressive. In determining the values of the mortgaged properties, the Surrogate was not bound by the opinion evidence of any of the experts who testified, hut was entitled to form an independent judgment upon the factual evidence relating to the properties. (Roberts v. N. T. E. B. B. Co., 128 N. T. 455, 464, 465; Kelly v. Wills, 116 App. Div. 758, 761; Harley v. Buffalo Car Mfg. Co., 142 N. T. 31, 37; Brooklyn Heights B. B. Co. v. Brooklyn City B. B. Co., 124 App. Div. 896, 901, 902.) The decision of the Surrogate as to values is adequate and finds abundant support in the evidence, and he was not required to make further findings on the application of the trustee. (Surrogate’s Ct. Act, § 71.) Present — Close, P. J., Hagarty, Carswell and Adel, JJ.; Taylor, J., not voting.
