In the Matter of the Application of Modesto Berardini, Appellant, as One of the Executors and Trustees under the Will of Michael Berardini, Deceased, and as a Person Beneficially Interested in the Execution of the Trust under the Will of Michael Berardini, Deceased, to Remove Philip Berardini, Michael Berardini, Jr., and John J. Pulleyn, Respondents, as Executors and Trustees under the Said Will and to Revoke the Letters Testamentary as Executors and Trustees Issued to Them

In the Matter of the Application of Modesto Berardini, Appellant, as One of the Executors and Trustees under the Will of Michael Berardini, Deceased, and as a Person Beneficially Interested in the Execution of the Trust under the Will of Michael Berardini, Deceased, to Remove Philip Berardini, Michael Berardini, Jr., and John J. Pulleyn, Respondents, as Executors and Trustees under the Said Will and to Revoke the Letters Testamentary as Executors and Trustees Issued to Them. [MAJORITY] Decree of the Surrogate’s Court of the county of Richmond modified by striking therefrom the provision imposing the costs and disbursements of the proceeding upon Modesto Berardini personally, and inserting in the place thereof a provision that the costs and disbursements shall be paid from the estate, and as thus modified the decree is unanimously affirmed, with costs, payable out of the estate, to the appellant. This appeal is academic so far as the removal of the respondents is concerned. Therefore, that phase of the appeal is not passed upon. We have examined, however, into the merits for the purpose of ascertaining whether or not the facts as they appear justified the appellant in instituing and prosecuting the proceeding. We have concluded that they did so justify him, and, therefore, it was improper to charge him with the costs thereof. There was and could be no basis for a finding of estoppel under the circumstances herein. The thirteenth paragraph of respondents’ findings is reversed. Present — Lazansky, P. J., Young, Rapper, Carswell and Tompkins, JJ.