shares cannot be accurately ascertained until an accounting has been had, and many questions relating to marriage, legitimacy, etc., may arise, which can only be determined by a decree of the court. Therefore, except in the most simple of estates, it will be found to be the better part of wisdom to defer the final distribution until the administrator's accounting. This does not mean, however, that an earlier division in part, or even in whole, constitutes a breach of duty, for the law permits an application by the widow or any of the next of kin for the payment of their shares, after three months from the grant of letters, if the amount can then be fixed and the rights of no other person are prejudiced thereby. This is especially so where the payment is necessary for the education or support of the distributee, and provision is made by the statute for such a case.

If one of the next of kin has died before distribution, his share can be paid to no one but his executor or administrator, when appointed. Under no circumstances is it safe or proper to pay it to his next of kin.

Where the person entitled to a share is a minor, the payment to his guardian should usually await the direction of the court which will require the guardian, before receiving the fund, to furnish a bond for its safe keeping.

113. Trustee's investments.

We have now reached the point where the representative has completed his purely executorial duties, and if there are no trusts imposed upon him, he is ready for his accounting and discharge. But if the will requires him to set apart and invest a fund for the benefit of one or more persons, there are still further duties which must be performed. The designated trusts must be erected and suitable investments made. This should be done with reasonable promptness, else the trustee may be charged with the interest which might have been earned. There is no inflexible rule as to how soon the investment should be made, but it has been said that six months after the fund is ascertained is ample time within which to find and select a suitable security. At any rate it is not necessary to wait until the account of the executor has been passed, and the fund directed to be turned over.

If the testator specifies the manner of investment, as he has unlimited power to do, of course the directions must be followed, and the trustee is bound to make good any loss resulting from a disregard of them. Even if the will authorizes the trustee to retain the testator's investments, this does not absolve him from all further concern respecting them. On the contrary, he is bound

to exercise toward them the same degree of vigilance as with respect to those which he himself has made, and he should keep himself informed of all matters affecting the investment, and take such measures as become a prudent man, to prevent a loss to the estate. Trust funds may not lawfully be mingled with other funds with which the trust is not concerned. Thus, the loan of a trust fund, in combination with other funds, in a transaction which may in any conceivable event require the concurrence of a stranger to the trust for the enforcement of the security, is illegal.

Although the rule is less strict in other states, in New York the law places upon trustees what is equivalent to a positive duty to restrict investments to the same kind of securities as those in which savings banks are by law authorized to invest the money deposited therein, and in bonds and mortgages on unincumbered real property in that state worth fifty per centum more than the amount loaned thereon. Any departure from this plain injunction renders the trustee liable for loss, even though the will may have authorized an investment "in such manner and upon such securities as to the trustee shall seem advisable." But a distinct declaration by the testator that the trustee is not to be held liable for loss or injury to the estate must be respected and obeyed.

It is hardly necessary to point out that anything which savors of speculation must be sedulously avoided. Speculation is not investment. It is rather for the purpose of increasing the principal, while investment has in view the securing of an income, which alone is embraced within the trustee's duty.

Having made the investments and secured possession of the evidences thereof, the responsibility of the trustee is not confined to the receipt and distribution of the income to those entitled to it. On the contrary, he must maintain constant watch over them, and take notice of all matters affecting their value and desirability. He need not concern himself with every decline in a feverish market, but a serious and prolonged drop in the price certainly requires investigation. Of course, depreciation in the value of securities, whether due to a normal decline in the market, or to a general panic, is not to be charged to the trustee where he has not been wanting in ordinary prudence.

A default in the payment of interest upon a mortgage or the failure of the mortgagor to discharge the taxes, puts the trustee upon inquiry and suggests the advisability of taking legal measures to prevent a loss. If, upon foreclosing a mortgage, the trustee is obliged to buy in the

mortgaged premises, as it may well be his duty to do, the land will be regarded as personal property, which should be converted into money as soon as possible and reinvested.

A beneficiary may assent to any form of investment made, and if he has done so, with knowledge of the facts, he cannot thereafter make objection thereto or question its propriety. Not only this, but the share of the assenting beneficiary in the income or principal may be withheld by the trustee and applied to the payment of any loss that may result from the unauthorized investment.

114. Personal dealings with property.

If the trustee deals with the trust property for his own benefit, he must account for any profit that may result; but any loss must be borne by him alone. No principle is better settled than that which forbids the trustee to purchase the trust property for himself or his own property for the trust. Such transactions are presumptively fraudulent. That the sale was fair and the consideration ample is of no consequence. The court will not stop to enquire into the details, but will at once disregard every kind of dealing from which arises a conflict between personal interest and official duty. Thus, in one case, a trustee, having a fund