¶1I dissent. Before the removal can be justified, it must be shown by competent conclusive evidence that the interests of the estate, as distinguished from the caprice and wishes of coexecutors, are jeopardized. Matter of Burr, 118 App. Div. 482, 104 N. Y. Supp. 29; Matter of Waterman, 112 App. Div. 313, 98 N. Y. Supp. 583; Matter of Thieriot, 117 App. Div. 686, 102 N. Y. Supp. 952. After a careful examination of the evidence, I am unable to find a condition which would justify the removal, and no fact is found by the learned surrogate under which it could be justified, though it does unfortunately appear that she has upon occasions been coerced in her official actions by her husband. It was said in Matter of Johnson, 15 N. Y. St. Rep. 752, in a similar proceeding:
“The principle governing the disposition of applications such as this is well expressed in this phrase, ‘whom the testator will trust, so will the law.’ The executor is the confidential agent, solemnly chosen by the testator to execute his wishes as they may be expressed in his will. To this agent the testator confides a most sacred trust. His will must be obeyed by courts and parties within the wholesome rules which have been made in the ages that have passed, by judges and courts of the highest order of ability, aided by vast experience in the practical affairs of men.”
¶2The respondent was undoubtedly selected because of the trust and confidence reposed in her, and, if she has been remiss in the discharge of her duties to the extent of incurring a personal responsibility to the estate, that subject may be presented to the surrogate, to be passed upon by him in the proceeding for accounting, which is now pending. Matter of Monroe, 142 N. Y. 484, 37 N. E. 517.
¶3I must vote for affirmance. .