Marguerite B. Burke, Respondent, v. Charles A. Baudouine and John F. Baudouine, Individually and as Executors, etc., of Charles A. Baudouine, Deceased, and Others, Appellants, and John Alden Baudouine, an Infant, Respondent

Marguerite B. Burke, Respondent, v. Charles A. Baudouine and John F. Baudouine, Individually and as Executors, etc., of Charles A. Baudouine, Deceased, and Others, Appellants, and John Alden Baudouine, an Infant, Respondent. First Department, December 19, 1919. Trust — evidence insufficient to justify, removal of trustees. The removal of the trustees of an express trust is not justified where there was absolutely nothing proved against their management of the estate and no evidence of any character produced against one of them and no dereliction of duty proved against the other or that he had been unfaithful in any manner to his trust, and the sole evidence produced tended to show that he was insolvent and had filed a petition in bankruptcy, and .that there was some hostility between said trustee and the plaintiff, but it was not shown that said hostility militated against the interest of the plaintiff or influenced the trustee in the discharge of his duty. Appeal by the defendants, John F. Baudouine and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the'county of New York on the 27th day of May, 1919, after a trial at the New York Special Term, and also from an order entered in said clerk’s office on the same day denying the motion of the defendant John F. Baudouine for leave to serve a supplemental answer and to reopen the case. Cortland Betts, for the appellants John F. Baudouine, Jr., and Charles A. Baudouine, 2d. John A. Garver of counsel [Shearman & Sterling, attorneys], for the appellant John F. Baudouine. Thomas W. Burke, for the respondent Marguerite B. Burke. Henry Bogert Clark, for the respondent John Alden Baudouine. [MAJORITY — Page, J.:] Page, J.: The accounting of the removed trustees has been recently before this court. We then considered the objections filed by the plaintiff herein to the accounts. The surrogate had' approved the accounts with a very slight modification, and we surcharged the account by one small item; otherwise we found that although very serious objections had been made, they were entirely unfounded. (Matter of Baudouine, 189 App. Div. 934.) The trustees have been removed in this case on the most flimsy evidence. There was absolutely nothing proved against their management of the estate. There was no evidence of any character "produced against Charles A. Baudouine. Nevertheless, the decision was that he should be removed. There was no dereliction of duty proved against John F. Baudouine, nor was it shown that he had been unfaithful in any way, shape or manner to his trust. The sole evidence produced tended to show that John F. Baudouine was insolvent; that he had filed a petition in bankruptcy, and that he had left unpaid certain obligations which it is claimed were owed either by him personally or by bis former copartnership. Stress is laid upon the relation between the plaintiff, who is the daughter of John F. Baudouine, and himself. It has not been shown that this hostility in any way militated against the interest of the plaintiff or that John F. Baudouine had been influenced in any manner in the discharge of his trust by such feeling of hostility. The judgment should be reversed, with costs, and the complaint dismissed, with costs. Dowling, Laughlin, Merrell and Philbin, JJ., concur. Judgment reversed, with costs, and complaint dismissed, with costs. Settle order on notice.