
    In the Matter of the Petition of Albert Thieriot, as Executor, etc., of Rosa Delmonico, Deceased, and Lorenzo Crist Delmonico, for the Revocation as to Josephine Crist Delmonico of Letters Testamentary Issued to Her, as Executrix, and Albert Thieriot, as Executor, etc., of Rosa Delmonico, Deceased, and for the Removal of the Said Josephine Crist Delmonico, as Testamentary Trustee under Said Will, Respondents. Josephine Crist Delmonico, Appellant.
    First Department,
    February 25, 1907.
    Partnership — executors and administrators — when surviving partner ■should not be removed as executor.
    When the will of'a deceased partner gives to a surviving partner, who is also made executrix and trustee, the controlling'interest in the business and mat-
    . ag'ement thereof, free from any control or dictation from any person whomsoever, the surviving partner is the sole legal owner of the assets and has exclusive right of management in winding up the partnership affairs within the limits of good faith.
    The other representatives of the deceased partner have no right to interfere with the surviving partner, or to require her removal as executrix and trustee, so long as she is applying the proceeds of the firm in settlement of its debts.
    The representative of the deceased partner may require the application of the assets in payment of debts, but the mode and manner of so doing is under the exclusive control of the surviving partner.
    A trustee appointed by will or deed will not be removed for violation of duty, or even breach of trust, if the fund is in no danger of being lost, and the court., will only interfere when it is necessary to save the trust property. There must be such misconduct as^to show want of capacity or fidelity, putting the trust in jeopardy.
    
      Appeal by Josephine Crist Delmonico from a decree of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 27 th day of December, 1906, revoking as to herself letters testamentary theretofore issued to her and Albert Thieriot jointly, and removing her as testamentary trustee- under the last will and testament of Eosa Delmonico, deceased.
    
      Morgan J. O'Brien, for the appellant.
    
      Solomon Hanford, for the respondents.
   Lambert, J.:

In the year 1901 a copartnership known as “ Delmonico’s ” existed for the purpose of carrying on a restaurant in the city of Mew York. . This partnership consisted of Eosa Delmonico* owning four-sixths parts; Josephine C. Delmonico, with one-sixth, and Lorenzo C. Delmonico, the remaining-one-sixth interest. The latter became the manager of the business. In 1993 it became known that Lorenzo C. Delmonico was heavily in debt,- and that he had overdrawn his account with the firm to the extent of $14,665.71. The copartnership was dissolved by mutual consent, Lorenzo C. Delmonico retiring, assigning his interest in the copartnership to Eosa and Josephine C. Delmonico in equal shares, and these two bécame copartners in the transaction of the business. At this time Eosa Delmonico owned four-fifths of the copartnership assets and Josephine C. Delmonico one-fifth, and this was the situation at the time of -th.e death of Eosa.»Delmonico.on the 24th day of March, 1904. By her will the said- Eosa Delmonico gave one-fourth of her interest in the copartnership to Lorenzo 0. Delmonico and three-fourths thereof to Josephine- C. Delmonico, and the will provides that the latter is to have •“ the controlling interest in the said business in my place or stead, and as succeeding me in the same and in such control. It is my express wish and desire, and I-hereby will and direct, that my niece, the said Josephine'Crist Delmonico,. shall have and exercise the controlling interest in the management, conduct and direction qf 'said business, and that she shall control and dispose of the same -as; and when she shall see fit, absolutely, free from any control- Or dictation of any person or persons whomsoever.”

Under the provisions of the will Josephine C. Delmonico and Albert Tliieriot were made executors,, and both of them have qualified and entered upon the, discharge of their duties. The decree now before this court on appeal, revokes the letters testamentary issued to the appellant, Josephine C. Delmonico, and removes lief as a testamentary trustee, because of certain alleged acts of misconduct on her'.part in dealing with the affairs of the copartnership known as “Dehnonico’s.” It is alleged on the part of.the petitioners, Albert Tliieriot and Lorenzo C. Delmonico, that in December, 1904, it was decided by the executors that “ Delmonico’s ” should be sold,., and-that for the purpose of reaching this result it was arranged that a firm of accountants, Barrow, Wade, Guthrie & Co., should be employed to make up a financial statement of the affairs'of the copartnership. This firm was subsequently installed by the appellant, with the approval of1 the appellant and Tliieriot, her coexecutof, as treasurer of the business. This relation continued for some time when the appellant,- taking offense at some extra charges píiáde by the treasurer and desiring to employ a less expensive firm,-discharged the firm of Barrow, Wade, Guthrie & Co. . This proceed-' ing was then instituted foi the removal of the appellant as executrix and testamentary trustee. So. far the petitioners have succeeded, though the moving papers, which are not supported by any common-law evidence, do not charge in competency, bad faith Or any of the things which have been held necessary to justify the courts in displacing the executors and trustees named by a testator. :

In the view which wé take of this case, however,- there as no-occasion for determining whether the conduct alleged is such as to justify a removal of a testamentary trustee. It appears that at the time of the' death of Kosa Delmonico the firm was largely indebted for current bills. Josephine C. Dehmonieo/as the. sole surviving' partner, became -the legal owner of the assets of the copartnership and had the exclusive right to sell,, mortgage and dispose'-of them In the performance of her duty in closing up the affairs of the partnership, and she had a right to do this in any manner, within the limits of:good faith, that she might deem bést for' the intérests of those concerned. The representatives of Rosa Delmonico have no ■ legal interest in such assets' and no legal right to interfere in their administration so long as the. survivor is prosecuting the business'df closing up the estate and applying its proceeds- to the payment of the firm debts. The survivor does not take such assets as trustee, but as survivor, and holds the legal title subject to such equitable rights as the representatives have in the due application of the proceeds. They may, therefore, require the application of the assets to the payment of partnership debts, but the time, mode and manner of doing so are a part of the administration of the estate which is under the exclusive control of the survivors. While su,ch representatives have an equal interest in the distribution of- any surplus remaining after the payment of the debts, yet until all of such debts are paid, it is a mere, contingency which may or may not eventually ripen into a legal right. (Williams v. Whedon, 109 N. Y. 333, 338.) While it has been suggested that the case above cited stated the law rather too broadly, there is no question that the only right of a personal representative is to call the surviving partner to account (Secor v. Tradesmen's Nat. Bank, 92 App. Div. 294, 298, and authority there cited), and as the appellant now before this court has claimed to act under her rights as a surviving partner, and • neither she nor her coexecutor and trustee have had any occasion to deal with the assets of the copartnership of “ Delmonico’s,” it cannot be said that she has been guilty of any misconduct as .executrix or trustee under the will of Rosa Delmonico, even though she may have done all that is alleged in the petition. It appears from the record that the firm owed large debts; that these debts are being paid off out of the proceeds of the business, which has been "conducted by the surviving partner for the purpose of placing it in a position where the property may be disposed of at an advantage; and until these debts are all paid and the affairs of the copartnership are adjusted, the executors and trustees under the will of" Rosa Delmonico have no relation to the affairs of the copartnership, except to see that the surviving partner liquidates the affairs of the firm within a reasonable time. (Secor v. Tradesmen's Nat. Bank, supra.)

We are of opinion that, under the rule recognized in Matter of Scott (49 App. Div. 130), all of the questions presented by the record are open to review here, and that upon the record as shown by the pleadings, the petitioners are not entitled to the relief 'demanded for the reasons above suggested. Moreover, upon the facts placed before us, we are unable to discover sufficient grounds for removal, even if the subject-matter were within the purview of-.tile' éxecutors and trustees. The rule is sanctioned bjr authority that a trustee will not be removed for every violation of duty, or even breach of the trust, if the fund is in ño danger of being lost. The power of' removal of trustees appointed by deed or will ought to be exercised sparingly by the court, There must be a cleat necessity for interference to save trust property. Mere error, or breach of trust may not "be sufficient. There must be such misconi duct as to shpw want of capacity or of'fidelity, putting the trust ill jeopardy.. (Elias v. Schweyer, 13 App. Div. 336, 340; Matter of Waterman, 112 id. 313, 318.)

The decree appealed from should be reversed,, with costs, and the proceeding dismissed, with costs.

Ingraham and LauGhlin, JJ., concurred; Patterson, P. J.,- and Houghton, J., concurred in result.

Order reversed, with costs, and proceeding dismissed, with costs. Order filed.  