Order affirmed, with costs payable by appellants personally.
Irving Miller died a resident of Nassau County on March 25, 1958. He was survived by his widow, Mildred L. Miller, a son and two daughters. Certain objections to the final judicial settlement of the accounts of the trustees of the testamentary marital and nonmarital trusts of the testator have been previously resolved by this court (Matter of Miller, 99 A.D.2d 780). The instant appeal is from an order dismissing all remaining objections. We affirm.
Although attorney trustee Edward Lee discarded certain records concerning the trust and others were accidentally lost, there was no proof that any pecuniary loss to the estate resulted and the trustees' commissions are not, therefore, subject to forfeiture (see, Matter of Ludlam, 24 N.Y.2d 828; Matter of Baker, 249 App. Div. 265; 2 Scott, Trusts § 205 [2d ed]).
We are persuaded by the evidence presented at the hearing that there were justifiable reasons for maintaining a portion of the trust assets in interest-bearing checking and savings accounts at commercial banks, upon the advice of investment counsel. The fact that slightly more income would have been earned had the trust purchased Treasury bills or commercial paper instead does not establish a breach of fiduciary duty which would entitle the estate to a surcharge (see, Matter of Bank of New York, 35 N.Y.2d 512; EPTL 11-2.2).
We have reviewed objectants' remaining contentions and find them to be without merit. Gibbons, J.P., Thompson, Brown and Eiber, JJ., concur.