Apart from that of ancillary character the sole relief prayed for in the petition is the revocation of the letters of trusteeship and the removal of the trustees for alleged misconduct in the execution of the affairs of the trust. (Surrogate’s Ct. Act, § 99, subd. 2.) Specifically it is charged that the fiduciaries — a member of the Bar and a trust company — had wasted and improperly applied and managed the sole asset of the trust, improvidently and in excess of the power granted by the will had entered into the agreement for the sale of the capital stock upon an installment payment basis and because of prior business and professional contacts with the corporation had developed undivorceable loyalties which were in conflict with the proper discharge of their duties as trustees.
*405By statute (Surrogate’s Ct. Act, § 101) the removal of a trustee or the revocation of letters issued to him is purely discretionary. (Stolz v. New York Cent. R. R. Co., 7 N Y 2d 269, motion for reargument denied 7 N Y 2d 995; Matter of Clark, 136 Misc. 459.) In the exercise of his statutory power the Surrogate dismissed the petition. It is not found that the discretion was abused. Hence, I perceive no basis to justify our vitiation of the agreement of purchase and sale of the trust asset at this stage of the administration of the trust estate—particularly since the agreement itself was not an issue in the proceeding and bore relevance only to the question whether the revocative and removal processes should be invoked for misconduct. (Surrogate’s Ct. Act, §§ 40, 99, 101.)
The terms of the agreement may be inadequate to protect the cestui que trust from pecuniary loss. That, of course, depends upon future events. If they should prove to be, the ruling of the Surrogate does not relieve the trustees from responsibility for the omission or other act which may occasion loss to the trust estate unless exonerated by other provisions of the will, the import of which we need not now decide. (Matter of Sherman, 9 Misc 2d 731, affd. 279 App. Div. 981, motion for leave to appeal denied 279 App. Div. 1065.)
Accordingly, I would affirm the order appealed from.
Bergan, P. J., Gibson and Reynolds, JJ., concur with Herlihy, J.; Taylor, J., dissents, in an opinion, and votes to affirm.
Decree reversed, on the law, and the proceeding remitted for further proceedings not inconsistent with the opinion herein, with costs to appellant payable from the estate.