
    Ex parte, James Heard, Guardian.
    Under what restrictions the Court of Chancery may order the funds of an infant under its control, to be paid to a guardian appointed and residing in another State. [-*55]
    Barnwell — February, 1834.
    The petition, in this case, stated that the petitioner removed from this State to Georgia, where he was regularly appointed the guardian of the persons and estates of his children, who are entitled to certain personal property in this State, and to moneys now in the hands of the Commissioner; and that he has given bond and security for the proper discharge of his duties : That he is desirous of removing the property of his wards to Georgia, where it can be more profitably invested than in this State; and prays an order of the Court, authorizing the same to be paid and delivered to him.
    On the petition being referred to the Commissioner, he reported that the petitioner was a proper person to receive the appointment of guardian, that he had given sufficient security, and that it would be for the benefit of his wards to grant the prayer of the petition. On the report being submitted, Chancellor Johnston made the following order :—
    On reading the petition, it was referred, that the facts might come out, in order that the Court of Appeals might have the whole matter before them, and correct my judgment in rejecting the petition, which I felt that I must do for the want of power to transfer trust funds out of the jurisdiction. At the same time, I will allow the petitioner, upon security here, to borrow the funds from the Commissioner. It is ordered, that the petition be rejected. It is also ordered, that the Commissioner vest the funds in his hands at interest, taking good bond and security, and that the petitioner have leave to borrow on those terms.
    The petitioner now moved the Court of Appeals to reform this order, so as to grant the prayer of the petition.
    Patterson, for the appellant.
   O’Neall, J.

In the case ex parte John Smith, in the matter of the executors of James Bradshaw, 1 Hill, Oh. 140, decided at Charleston, April Term, 1833, an application, similar to the present, was held to be within the power of the Chancellor.

*In that case my brother Harper says, “I have no doubt, on *55] principle and the practice of the Court of Chancery, of the competency of the Court to order funds of an infant, under its control, to be paid to a guardian appointed and residing in another State. ” In pointing-out how an order of transfer might be guarded against abuse, he suggests three things to be examined into and reported by the Commissioner :— First, the fact of the guardian having been regularly appointed, according to the laws of the State in which the wards reside; secondly, the fitness of the guardian for his appointment; and thirdly, whether sufficient security has been given.

The two last of these inquiries were made in this case, under the order of the Chancellor ; and the Commissioner reported in the affirmative on each: he, also, under the order, reported that it would be for the benefit of the wards to make the transfer. The Chancellor denied the motion to confirm the Commissioner’s report, and transfer the funds, as he says, for want of power to transfer trust funds out of the jurisdiction.”

The case cited shows that he had the power which he disclaimed, and his decree must be reversed. But, as the Commissioner did not inquire into the fact, whether the petitioner had been appointed guardian of his minor children, according to the laws of Georgia, it will be necessary that the cause should go back to the Circuit Court, to enable the Commissioner to examine into that question ; and while he is doing that, he may as well re-examine the whole case, and report upon all the points to the next Circuit Court.

It is therefore ordered and decreed, that the Chancellor’s decree be reversed, and that the cause be remanded with directions to the Commissioner to make an examination of the case, according to the principles contained in this opinion, and report upon the same to the next Court for Barnwell District.

Johnson, J., concurred.

Harper, J., absent.  