#### W. T. EFIRD, Guardian of W. T. EFIRD, JR., JOHN EFIRD, DOROTHY EFIRD, RUTH EFIRD, JANE EFIRD, COLUMBUS EFIRD, and THOMAS EFIRD, and W. H. EFIRD and J. J. EFIRD, v. R. L. SMITH, CHARLES A. CANNON, and WACHOVIA BANK AND TRUST COMPANY, Trustees Under the Will of JOHN S. EFIRD, Deceased.

(Filed 26 June, 1935.)

*1.*Trusts F b — Plaintiff beneficiaries must make out prima facie case against trustees to be entitled to their removal.

Where the court finds that the plaintiffs, beneficiaries under a trust created by will, have not made out a *prima facie*case that defendant trustees were guilty of misconduct or bad faith in the administration of the trust or of damage to plaintiffs in the administration thereof, the findings support the court’s order refusing plaintiffs’ prayer for the removal of the trustees.

2. Appeal and Error F b—

Where the only assignment of error is based on appellants’ exception to the judgment, and the judgment is supported by the findings of fact, the judgment will be affirmed on appeal.

3. Appeal and Error J d—

The burden is on appellant to show error upon appeal.

4. Appeal and Error F a—

Only questions presented by exceptions duly taken can be reviewed by the Supreme Court on appeal.

Stacy, C. J., dissents.

Appeal by plaintiffs from *Clement, J.,*at Chambers, in the town of Albemarle, on 9 October, 1934.

Affirmed.

This is an action for an accounting by the defendants as trustees under the will of John S. Efird, deceased, to the plaintiffs as beneficiaries under said will. See *In re Will of Efird,*195 N. 0., 76, 141 S. E., 460.

The action was heard on affidavits submitted by both the plaintiffs and the defendants.

On the facts found by the judge, the motion of the plaintiffs for the relief prayed for in their complaint was denied. The action was dismissed, and the plaintiffs excepted and appealed to the Supreme Court, assigning as error the signing of the judgment.

*Vann & Millilcen and Varser, McIntyre & Hewry for plaintiffs.*

*Manly, Hendren .& Womble, Wm. H. Beckerdite, and Cansler & Cansler for defendants.*

*395Pee OueiaM.

After bearing tbe affidavits submitted by botb plaintiffs and defendants, and arguments of tbeir counsel, tbe judge found as a fact, and beld as a matter of law, tbat tbe plaintiffs bad failed to make out a *•prima facie*case against tbe defendant trustees, or any of them, to tbe effect tbat they bave been guilty of any bad faith, misconduct, or other breach of trust in tbe administration of tbeir trust, as alleged in tbe complaint, or tbat tbe plaintiffs or other beneficiaries of said trust bave suffered any loss or damage on account of tbe administration of said trust by tbe defendant trustees.

On these findings of fact and conclusions of law, tbe motion of tbe plaintiffs for tbe relief prayed for in tbeir complaint was denied, and tbe action dismissed.

Tbe only assignment of error in this appeal is based on plaintiff’s exception to tbe judgment. This assignment of error cannot be sustained, because tbe judgment is supported by tbe findings of fact. Manifestly, if tbe plaintiffs failed to show at least a *prima facie*case at tbe bearing of tbeir motion, they are not entitled to tbe relief sought by tbeir action.

Tbe judgment is affirmed on tbe authority of *Wilson v.*Charlotte, 206 N. C., 856, 175 S. E., 306. In tbat case it is said:

“It is elementary law tbat upon appeal to tbe Supreme Court tbe appellant must show error. Moreover, this Court can only review such questions as are presented by exceptions duly taken and assignments of error duly made.”

Affirmed.

Stacy, O. J., dissents.