(concurring). While I concur in the result arrived at on all points involved in these appeals, I do not wish to commit myself to the proposition laid down in the opinion that where a trustee uses trust funds by loaning them at interest in his own name he must necessarily be charged with the rate of interest fixed by law “for the loan or forbearance of money,” where no different rate *418is contracted for by the parties, although it be made to appear that he in fact loaned it at a less rate. To treat it as a loan to himself, to which the statute referred to would apply, might logically lead to some embarrassing results. Suppose, for example, as was the case in this state in former years, the usual and current rate of interest on loans of money was 12 per cent., while the statutory rate in such cases, in the absence of an agreement for a different rate, was only 7 per cent.; and suppose, further, that it appeared that a trustee had loaned trust funds in his own name, but it did not appear at what rate of interest, — I think the presumption would be that he received the usual and current rate, and that he would be chargeable with 12 per cent, and not merely 7. But as suggested in the opinion the point is not necessarily involved in this case. Every presumption is against a trustee who uses trust funds in his own business, or invests them in his own name. Hence, if he loans them in his own name, the presumption is that he received the current rate of interest. In this case it did not appear, and for reasons stated in the opinion the trustee was unable to show, at what rate of interest it had loaned this trust fund, except that it had loaned moneys indiscriminately out of this and other funds at rates varying from 4 to 8 per cent., — a majority at 6 per cent. On this state of the evidence, aided by knowledge of facts of which I think perhaps the court had a right to take judicial notice, it had a right to adopt 7 per cent, as the current rate of interest, and to assume that the trustee had loaned the trust funds ■at that rate.
In reference to the amount upon which the trustee should be ¡charged 7 per cent, interest I wish to make these suggestions: I do •not think that it was entitled, as a matter of law, to have the whole nr any aliquot part of its cash balances kept on deposit with its banker treated as a part of the trust fund kept on hand and not invested. It does' not follow that a person has received no profit or advantage of money because he lets it lie in the bank, for, if it is necessary for him to keep money at his banker’s for the purposes of his credit, .and for use in his own business not connected with the trust, ;and he uses the trust money for that purpose, he does use it in his ■own .business as much as if he had actually expended it. It answers the purposes of his business, and he derives as much advantage from it as if .it had been his own money. If this clearly appeared to be. *419the state of facts in this case, I could not hold that the trustee was entitled to a deduction of any part of its balance kept in bank. But I think there was evidence from which the trial court was justified in finding as a fact that this balance was kept on hand chiefiy for the purpose of meeting current demands upon it on account of the various trust funds in its hands, including the Kittson estate. While caution should be exercised not to relax the strict rules of accountability applicable to trustees, yet I think, under all the facts and circumstances disclosed on the evidence, the court was justified in deducting from the entire trust fund in the hands of the trustee, and not otherwise invested, the proportion of the cash balances suggested ip the opinion, and only charging 7 per cent, on the remainder.
Upon a point made in the brief, but not specifically mentioned in the opinion, I will add that I do not think there was in the case any question of election between profits and interest. My view is that, when a court of probate or of equity charges a trustee with interest on the trust fund, it is charged not as interest “upon a loan or forbearance of money,” but as the measure of profits which he is proved or presumed to have made or is estopped from saying that he did not make, or which he ought to have made, but did not malee. Hence the only question in this case is, with what rate of profits, proved or presumed, ought the trustee to be charged?