This is no controversy as to facts. The plaintiff is entitled .under her father’s will to one-third of the net income of the residue of the estate after payment of legacies. The estate of the life tenant must bear the burden of the taxes and ordinary repairs, and the payment of the interest upon the liens, if any exist. The defendant Quinby is the trustee under the will, and Ms account confounds the income derived from the estate and the charges thereon with the principal or corpus of the estate; and the judgment appealed from does not seem to have made the proper ■distinction between the two accounts. The referee, in stating the account of the defendant as executor and trustee, has charged him with all moneys received, whether on account of the principal or interest, and has credited him with all moneys paid, without regard to the fact whether the payment was on account of the fund or income. In figuring the amount for which the trustee is liable to the plaintiff he should first be charged with the amounts received by him for rents, which, according to his account, after deducting the rent belonging to Mrs. Quinby, was $5,591.54. From this must be deducted the amount paid by him during the same time for repairs and insurance, which is $3,752.28; leaving a net income of $1,839.26. As there is no proof respecting their character, we must assume that *115they were ordinary repairs, which are chargeable to the life tenant. As the trustee was liable to be called upon for the net income at ■any time, and was under an obligation to pay it to the life tenant whenever it was demanded, and as the account was running and uncertain, he should not be charged with interest thereon. From the above balance, $1,839.26, must be deducted the commissions of ■the trustee on the total amount received, $5,591.54, which amounts to $164.78, mailing the amount due to life tenant $1,674.48, of which the plaintiff is entitled to one-third. As to the principal of the fund, the plaintiff is to be charged with the amount received by him from the sale of stock and the rent collected, $943.33. From this is to be deducted the amount adjudged to be due by the surrogate’s decree, $849.91; leaving $92.42 in his hands belonging to the trust fund. To this sum must be added the amount received for stone and dirt •sold, $279.70, with the damages received for diverting the water of Bronx river, $750, which makes $1,123.12. Out of this he paid $500 legacy, leaving $623.12 belonging to the trust funds. He is also chargeable as trustee with the amount he received upon the sale of the farm, which, after making the deduction for the land included in Sound View avenue, was $83,295. Upon this he is to be credited with $2,316.38 for the amounts paid for commissions on the •sale of the farm, for the survey, and for legal services; leaving chargeable to him on this account $80,978.62. Add this.to the above amount, $623.12, and we have the total amount of the trust fund, $81,601.74. As the money was invested within a reasonable time by the trustee, he should not be charged with more interest than he has received; and as, at the time of the accounting, this interest was not due, he should not be charged with interest up to that time. The judgment should be modified in accordance with this opinion without costs to either party on this appeal. Order to be settled by Justice DYKMAN.
A motion was made to dismiss the appeal because the defendant had taken the benefit of the judgment and order, and was therefore concluded by the same. We do not find the fact to be as claimed by the respondent, and the motion is therefore denied, with $10 costs and disbursements, to be retained by the appellants from the funds in their hands.