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In the Matter of the Accounting of Gertrude B. Lingham, as Trustee under the Will of Charles A. Lingham, Henry George School of Social Science
Decree reversed as a matter of discretion and matter remitted to the Surrogate’s Court for further proceedings not
[967] inconsistent with the memorandum. Memorandum: The petition alleges, and testimony was taken on, various instances of misconduct on the part of the trustee. It is undisputed that trustee’s commissions were, for a period, charged to principal contrary to the terms of the will and a prior order of the Surrogate. There was, moreover, evidence that the trustee had not exercised due care and prudence in the retention of certain oil royalties. In addition, the petitioner, prima facie, established that there was a “ sales load ” or brokerage fee on the purchase by the trust of shares in mutual funds. The testimony of the experts called by each side as well as certain publications of the Securities and Exchange Commission (Statement of Policy of Aug. 11, 1950, subd. [o] and amend, thereto of Jan. 31, 1955, subds. [o], [p]) lend strong support to petitioner’s position. The Surrogate, nonetheless, found that there was no “sales load” included in the total price of the shares and appears to have condoned charging their entire cost to principal. Where, as here, there has been no formal account in 12 years and the sole trustee is also the principal income beneficiary, the discretion of the court should be exercised in favor of the remainderman. The function of taking evidence upon the petition was to determine whether, prima facie, petitioner’s claims of misconduct were well founded. We hold only that petitioner has made a sufficient showing to entitle it to an accounting. The determination of the issues raised by the allegations of misconduct must await the accounting itself. (Matter of Laffargue, 142 App. Div. 426, affd. 202 N. Y. 614.) All concur. (Appeal from a decree of Niagara Surrogate’s Court denying a petition of Henry George School of Science for an order directing respondent to render and settle her account as trustee.) Present — Vaughan, J. P., Kimball, Williams, Bastow and Goldman, JJ.