An investment in savings bank stock is proper; Fanning v. Main, 77 Conn. 94, 58 Atl. 472 ; but not in a private banking part nership ; Penn v. Fogler, 182 Ill. 76, 55 N. E. 192; or in the purchase and opening of a coal mine; Butler v. Butler, 164 Ill. 171, 45 N. E. 426; or in buying a patent right and manufacturing patented articles; Trull v. Trull, 13 Allen (Mass.) 407.
A trustee with absolute power may invest in other securities than those declared by law the proper investments for ordinary trustees; 1 Ky. L. Bull. 786.
Voluntary investments of a speculative na ture outside of the state should not be made; In re Reed, 45 App. Div. 196, 61 N. Y. Supp. 50; but there is no arbitrary rule that trust funds should not be invested in fixed proper ty in another state; Thayer v. Dewey, 185 Mass. 68, 69 N. E. 1074. A trustee should not invest in unincumbered western lands; In re Reed, 45 App. Div. 196, 61 N. Y. Supp. 50 ; or in speculative railroad stocks; White 'v. Sherman, 168 Ill. 589, 48 N. E. 128, 61 Am.
St. Rep. 132; or in the stock of a corpora tion; Tucker v. State, 72 Ind. 242; or in the debentured stock of a speculative trust com bination; In re Hall, 164 N. Y. 196, 58 N. E. 11; or in second mortgage bonds of a rail road; Clark v. Anderson, 13 Bush (Ky.) 111; though such an investment is said not to be inconsistent with sound discretion; Taft v. Smith, 186 Mass. 31, 70 N. E. 1031; Bartol's Estate, 182 Pa. 407, 38 Atl. 527.
An investment in corporate stock is a breach of duty; Tucker v. Hart, 72 Ind. 242; and so is one in encumbered real estate; v. Latta, 90 Ind. 136; Singleton v. Lowndes, 9 S. C. 465 ; contra, as to a second mortgage; Sherman v. Lanier, 39 N. J. Eq. 249.
'A testamentary trustee, who has retained investments made by his testator which have depreciated, will not be surcharged simply because his judgment turned out to be wrong; Green v. Crapo, 181 Mass. 55, 62 N. E. 956; so in Peckham v. Newton, 15 R. I. 321, 4 At]. 758. So a specific legacy may be kept in the investments made by the testa tor; Ward v. Kitchen, 30 N. J. Eq. 31. Where a mortgage loan was sufficiently se cured when made, the subsequent deprecia tion of the land will not be chargeable to the trustee; Clark v. Anderson, 13 Bush (Ky.)
111. If a trustee acts in good faith and with diligence and in a way that the court would have approved under the circumstances as the trustee honestly believed them to be, he will not be held responsible; Gilbert v. Kolb, 85 Md. 627, 37 Atl. 423. That a trustee act ed under advice of counsel is not an excuse; In re Westerfield, 32 App. Div. 324, 53 N. Y. Supp. 25. When a trustee is wanting in common prudence, and a loss to the trust results, he must bear the loss ; Hart's Estate, 203 Pa. 480, 53 Atl. 364; if he so invested funds as t•) Make it possible for him to make a profit himself, this would render him re sponsible for any loss; Carr's Estate, 24 Pa. Super. Ct. 369. Trustees are not liable if they acted in good faith and in the exercise of a reasonable discretion and as they would have dealt with their own property; Watkins v. Stewart, 78 Va. 111.
If the cestui quo trust assents, or if an in vestment is made at his request, he cannot complain; Matter of Hall, 164 N. Y. 196, 58 N. E. 11; but the consent of the cestui que trust to an investment in railroad stocks is held to be no protection to the trustee in case of loss; White v. Sherman, 168 III. 589, 48 N. E. 128, 61 Am. St. Rep. 132 ; nor to an in vestment forbidden by law; Aydelott Breeding, 111 Ky. 847, 64 S. W. 916; nor was the consent of the beneficiary material where it appeared that he was a person greatly dominated by the trustee; Wieters v. Hart, 68 N. J. Eq. 796, 64 Atl. 1135. But in Phil lips v. Burton, 107 Ky. 88, 52 S. W. 1064, it was held that the beneficiary could not com plain after consenting to an investment and after long acquiescence; also where several life tenants acquiesced in an investment; In re Hall, 164 N. Y. 196, 58 N. E. 11.
Trust funds must be invested within a rea sonable time; a year was held to be with "all convenient speed"; 11 Hare 160; six months has been held reasonable; Dunscomb v. Dunscomb, 1 Johns. Ch. (N. Y.) 508, 7 Am. Dec. 504; three months; Barney v. Saunders, 16 How. (U. S.) 543, 14 L. Ed. 1047; two months; Appeal of Witmer, 87 Pa. 120.