
    Matter of the Estate of Richard Klein, Deceased.
    (Surrogate’s Court, New York County,
    June, 1916.)
    Guardians — accounting of testamentary — security required — infants.
    Under section 2739 of the Code of Civil Procedure the decree to be entered upon the judicial settlement of the accounts of a testamentary guardian appointed without bond before the new Surrogates’ Act went into effect should provide that he give sufficient security upon the payment to him of the distributive share of the infants.
    Proceeding upon the judicial settlement of accounts of a guardian.
    Gilbert & Wessel (Harry N. Wessel, of counsel), for petitioners.
    Francis B. Foraker, special guardian.
   Fowler, S.

This is an accounting proceeding which was instituted on April 25,1916. Upon the settlement of the decree, the special guardian asks that the decree direct the shares of the infants herein be paid over to the testamentary guardian upon filing her bond with sufficient security in conformity with section 2739, Code of Civil Procedure. It appears that the testamentary guardian was appointed without bond, April 21, 1914, before the new Surrogates’ Act went into effect. Under the old practice the testamentary guardian would be entitled to receive the property of the infants under an accounting decree without filing security. Matter of Klingenstein, 156 App. Div. 749. This accounting proceeding was instituted under the new Surrogates’ Law and in my opinion the distribution of the funds of the estate ought to be governed as provided under the new law regulating accountings. Section 2739 requires the filing of security by a guardian where a legacy or distributive share is payable to an infant, and the decree in this instance should so provide. If there is any doubt on the law, I prefer (o exact security and I think there is doubt.

Before the provisions of the proposed decree directing assignments and payments in kind can be accepted, an appraisal must be had, pursuant to section 2376, Code of Civil Procedure.

Decreed accordingly.  