dissenting. — I dissent for the reasons more fully given in my adjudication, which I summarize as follows:
*3461. An investment in a fraction of a mortgage, like an investment in a full mortgage, must be justified by an appraisement close enough in time to be informative. Two years was not close enough under the circumstances of this case.
2. The transfer from another trust account is in principle no different from a transfer from the trustee’s individual account and at least puts upon the trustee the burden of showing a careful contemporary appraisement. This view has been so fully dealt with by Judge Ladner in his dissenting opinion that I will say nothing more about it.
3. The trustees should not have invested in a mortgage on a property which had become unsalable and did not carry itself at the time the investment was made — facts which they ought to have known, and did know.
I also dissent most decidedly from the reason given at the end of the majority opinion for refusing a surcharge, viz, that a loss has not been definitely established.
Ever since I have been in this court, surcharges have been dealt with by directing the fiduciary to substitute cash and take over the investment himself. This has been so universal a practice that nothing about it can be found in the books. It is, however, familiar equity doctrine, viz, that the beneficiary may elect to take an improper investment or to take cash (see Restatement of Trusts, sec. 210). If the investment was improper, then it is the trustee who must take the risk of loss. If in the end there will be no loss, the pocket of the trustee will be saved, and I will be very glad of it. But the beneficiaries ought not to take the risk and wait perhaps for 10 years more, as they have for nearly 10 years last past.
If this reason for the decision is more than a mere makeweight, then the refusal to surcharge at this time will not dispose of the matter and the question can be raised in the future. In that case the exceptions ought to be dismissed without prejudice.
*347But that is not fair to the trustees. There are three trustees here. One of them is dead. All the trustees are entitled to know now where they stand. The executors of the deceased trustee are entitled to discharge. The living individual trustee is entitled to have the matter determined while he is living and can testify. The corporate trustee is entitled to have the matter determined before its officers who handled this matter die or forget.