In re Austin's Estate — 2 N.Y.S. 875

Majority

p. 875

In re Austin’s Estate.

(Supreme Court, General Term, First Department.

November 23, 1888.)

Headnote

Executors and Administrators—Probate Practice—Anticipation op Legacy.

An order of the surrogate directing the payment of a sum of money in anticipation of a legacy, which does not require security to be given as a condition of payment, as provided by Code Civil Proo. N. Y. § 2719, is fatally irregular.

Appeal from surrogate’s court, New York county; R. S. Ransom, Surrogate.

This is an appeal by Jane Oakes, executrix of the will of Winifred Austin, deceased, from an order of the surrogate directing the payment to the respond-ent, Leonidas S. Osborn, of the sum of $500, in anticipation of the payment-to him of certain legacies under the will of decedent.

Argued before Van Brunt, P. J., and Brady and Macomber, JJ.

Henry L. Sprague, for appellant. Henry B. Hathaway, for respondent.

The power of the surrogate to anticipate the payment-of legacies should be exercised with great care and caution, and, although upon" the moving papers a strong appeal is made to the sympathies of the-court, yet, as courts are not eleemosynary institutions, their determinations should not be controlled or influenced by such considerations, and it is doubt-* fui whether, under the facts disclosed by the moving papers, the order in question should have been ,made. There is, however, an objection taken-which is fatal. Section 2719 of the Code of Civil Procedure clearly provides that as a condition of payment the surrogate must require security to be given. This was not done, and therefore the order made was irregular and improper. The order should be reversed, with .$10 costs and disbursements, with leave to renew upon additional papers.

Macomber and Brady, JJ., concur.