¶1By section 71 of the revised statutes 6th edition page 101, it is provided that on the settlement of the account of an executor, or administrator, the Surrogate shall allow to him certain commissions particularly stated in the section, and I am of the opinion that the statute referred to does not contemplate that the executor or administrator, will at his own pleasure appropriate the funds belonging to the estate as commissions, but that they do not become commissions, and are not set apart from the body of the estate until there is a settlement of their accounts. This being so the executors ordinarily would be chargeable with interest on the amount thus appropriated to the time when the account was settled; but in this case, I am of the opinion that no injustice has been done to the estate in question by disallowing the interest on the sum thus appropriated, for the reason that the proof shows, that if it had been retained it would not have earned interest as an ordinary investment. Yet the trustees might have realized some interest if the fund had been deposited in a trust company, and it seems to me that it would be a wise rule to adopt, to require trustees, after diligent andunsuccessful effort to invest the funds in their hands, in ordinary regular securities, to deposit the fund in a trust company so that some interest may be realized, and I think it my duty to recommend this practice, which seems not to have been generally observed, and I make this suggestion in the hope that it may become a general practice hereafter; but as such practice does not seem to have prevailed heretofore, I am disinclined to charge the trustees interest in this case on the fund uninvested, because of the non-deposit on interest in a trust company.
¶2it may be urged,—in answer to the suggestion that no injury has been done to the estate by the appropria*503tian of the so called commissions, because of the inability of the trustees to make investments,—that the trustees appropriating these funds without authority, before they had been set apart for them, should be held to have misappropriated the funds of the estate, and so rendered themselves liable for interest thereon at full rates, in analogy to the rule laid down by the courts in the case of the ordinary unlawful use of the funds of the estate, in the business of the trustee; but the analogy does not hold good, for the reason that they have taken no more than they would have been entitled to reserve in their hands, as against any claim which might have been made against the estate, and therefore had not put the funds of the estate in any jeopardy, for they could not be compelled to so part with the funds of the estate, as to leave themselves dependent upon the uncertainty of sufficient funds being thereafter realized to pay their commissions, or turned over to proceedings to recover them back, but this court would justify them in retaining in their hands—though not in appropriating as their own—a sufficient fund to cover their lawful commissions to be awarded on settlement of their account.
¶3I am therefore of the opinion that the report of the referee should be confirmed, and that the application of Washington S. Wheelwright should be denied.
¶4Order accordingly.