#### ADA T. SMITH; ADA KELLY SMITH HINES and husband, LOVIT HINES, et al v. SAM B. UNDERWOOD, JR.; SANDRA LEE HONEYCUTT (Divorced); et al

No. 4A94

(Filed 6 May 1994)

Appeal by respondent Sam B. Underwood, Jr., pursuant to N.C.G.S. § 7A-30(2), from the decision of a divided panel of the Court of Appeals, 113 N.C. App. 45, 437 S.E.2d 512 (1993), which reversed an order entered on 27 January 1992, nunc pro tunc 17 January 1992, by Herring, J., in the Superior Court, Pitt County, in which the trial court in its discretion denied petitioners’ petition to remove the respondent, Sam B. Underwood, Jr., as co-trustee of the Ada T. Smith and W. H. Smith Trust. Heard in the Supreme Court 14 April 1994.

Bass, Bryant & Moore, by John Walter Bryant and William E. Moore, Jr., for petitioner-appellees.

Ward and Smith, P.A., by Ryál W. Tayloe and A. Charles Ellis, for respondent-appellant Sam B. Underwood, Jr.

PER CURIAM.

For the reasons stated in the dissenting opinion for the Court of Appeals by John, J., the decision of the Court of Appeals is reversed. The case is remanded to the Court of Appeals for further remand to the Superior Court, Pitt County, for reinstatement of the trial court’s order denying, in its discretion, the petition to remove the respondent-appellant as a co-trustee of the Ada T. Smith and W. H. Smith Trust.

REVERSED AND REMANDED.