
    In the Matter of the Petition of LEWIS H. WIGGINS to Remove LEWIS H. SMITH as Testmentary Trustee.
    
      Trustee — application to remove a trustee, upon the ground that he has converted a portion of the trust pi'operty to his own use — it will not he defeated hy proof that he Tuts made a settlement with those of the heneficia/ries whose property he had converted, and that the residue of the trust property is, then, in the possession of amd properly invested by his cotrustees.
    
    Appeal from a decree of the surrogate of Suffolk county, dismissing the petition of the appellant to revoke letters testamentary issued to Lewis H. Smith, respondent, one of the executors and testamentary trustees under the above-named will, and to remove him from his position as such testamentary trustee.
    The petition alleged that the trustee had converted some $6,000 of the testator’s estate to his own use, and that he was insolvent. The answer did not deny these allegations, but averred' that the respondent had satisfied the parties in interest by giving his obligations for this deficiency, and that his business was profitable. Testimony was taken from which it appeared that the allegations of the petition were true. The surrogate denied the application.
    The court at General Term said: “ I think in so doing he erred. The petitioner’s interest is small, but he was entitled to have it protected. The misconduct of the trustee rendered him improper to longer discharge his trusts. His settlement with the other legatees may have discharged him from legal liability to them on account of his default, but it did not obliterate the fault itself.
    
      “ The fund in which the petitioner is interested is now securely invested and in the hands of the other trustee, as to whom no complaint is made. But this does not necessarily secure the petitioner. The respondent is equally entitled to the possession of the fund with such cotrustee. Also, as the trustee was insolvent, he should have been ordered to file security.”
    
      William, Riley, for the petitioner, appellant.
    
      Thos. S. Mount, for Smith, executor and trustee, respondent.
   Opinion by

Cullen, J.

Present — Barnard, P. J., Dykman and Cullen, JJ.

Decree of surrogate of Suffolk county reversed, with costs, unless the trustee Smith file security in twenty days.  