This is an .appeal from so much of the decree, settling the account of a corporate executor, as surcharges that account with a sum of money which equals the difference between three per centum per annum for a fixed period, upon the corpus of an estate consisting of money, which the executor allowed in the account filed, and six per centum per annum thereon, which the surrogate determined should have been allowed. The determination was in accord with the contention of the residuary legatee, the sole party in interest, and with the report of the referee.
*700There is also an appeal from so much of the decree as adjudges that costs taxed and allowed on behalf of the appellant shall not include any part of the expenses of the reference, and that the appellant be required personally to pay the expenses of that reference.
We will examine the adjudication as to interest.
Herzog v. Title Guarantee & Trust Co. (148 App. Div. 234; affd., 210 N. Y. 531) is decisive of the error of the determination in the case at bar. The cases cannot be distinguished in principle. An examination of the record in the Herzog Case (State Law Library N. Y. Ct. App. Oases & Briefs, Vol. 210 N. Y. 530 Pt. 2 — 533, Case No. 3, pp. 182, 183, 202; Vol. 2936, Court of Appeals Cases, Brooklyn Law Library, Case No. 2, pp. 182, 183, 202) reveals no substantial variance in the facts. We are influenced, however, by the difference in the legal relations of the parties and the legal nature of the funds, unimportant though those circumstances may be, briefly to write in applying the doctrine of that case to the case under review.
The amounts subject to interest and the period for which interest should be allowed are not disputed. It is not claimed that any bank of deposit pays any greater rate of interest on such funds than the appellant. There was no misappropriation or infidelity or profit making, as those terms are legally defined.
The appellant, the executor, is a trust company. The money which it received as executor it deposited with itself as a banking institution to its credit as executor.
The trust company having been named as executor in the will of the testator, the statute commanded its appointment. (Banking Law [Consol. Laws, chap. 2; Laws of 1909, chap. 10], § 189.) The investments of money received by it in such capacity are at its sole risk; “* * * and for all losses of such money the capital stock, property and effects of the corporation shall .be absolutely liable, unless the investments are such as the courts recognize as proper when made by an individual acting as * * * executor, * * *. If dissolved by the Legislature or the court, or otherwise, the debts due from the corporation as such executor * * * shall have *701the preference.” (Id. § 190, as amd. by Laws of 1909, chap. 240.) “ On all sums of money not less than one hundred dollars which shall he collected and received by such corporation acting as executor, * * * interest shall be allowed by such corporation at not less than the rate of two per centum per annum until the moneys so received shall be duly expended or distributed.” (Id. § 194.) The foregoing provisions, with amendments, are now contained in subdivisions 1, 7, 8 and 11 of section 188 of the present Banking Law (Consol. Laws, chap. 2; Laws of 1914, chap. 369).
The elements as grounds for liability for interest on funds received by a fiduciary upon whom the duty of investment is not imposed by law or the instrument creating the trust are well settled and need not be restated. It is sufficient to say that none of them is proved in this record, and the burden of proving the existence of them is upon him who alleges- they exist. (Price v. Holman, 135 N. Y. 132, 133; Beard v. Beard, 140 id. 260, 266; Matter of Nesmith, Id. 609, 616.)
A corporate executor is subject to a liability no greater than that which devolves upon an individual executor, except as prescribed by statute. We have seen that the statute imposes an interest charge upon sums of $100 and upwards received by a trust company éxécutor in its representative capacity. In its account filed the appellant has charged itself with a sum in excess of the minimum fixation. It thus fully discharged the statutory duty laid upon it. The statute imposing the duty was doubtless enacted in contemplation of the right of a trust company to act as a hanking institution and to receive, as such, deposits of funds intrusted to it as an executor, those deposits being accorded a statutory preference in the event of the dissolution or liquidation of the trust company and being hedged with a special security in the event of improper investment.
When we consider the nature of a trust company, the statutory authorization to act as a bank of deposit and as an executor, and the legal obligations protective of the fund, imposed by statute upon such an institution, it is unreasonable, unjust and discordant with the statute law to require it to deposit in another banking institution, upon the assets of which it has no more security than any other creditor, the money received by *702it as a fiduciary, or to show that such deposit did not contribute in any degree to its profits as a banking- institution.
The question discussed was the important question before the referee. Its examination did not require the taking of much testimony. The other numerous objections could have readily been adjusted without incurring substantial expense. Justice does not require that the appellant should be charged with the expense of the reference.
The decree of the Surrogate’s Court of Nassau county should be modified by striking therefrom the provisions surcharging the appellant with the sum of $6,830.78 interest, and $462.50, the expense of the reference, and directing that the expense of the reference be made payable out of the estate, and as modified affirmed, with costs to the appellant payable out of the estate.
Jenks, P. J., Carr, Mills and Rich, JJ., concurred.
Decree of • the Surrogate’s Court of Nassau county modified by striking therefrom the provisions surcharging the appellant with the sum of $6,830.78 interest, and $462.50, the expense of the reference, and directing that the expense of the reference be made payable out of the estate; and as modified affirmed, with costs to the appellant payable out of the estate.