
    
      Ex Parte, John Smith, in the matter of the executors of Bradshaw.
    The Court of Chancery may order the funds of an infant under its control, to he paid to a guardian residing and appointed in another State, but in doing so, will take every precaution to guard against abuse -and loss to the infant: the Court will, in such case, order a reference to ascertain the fact of the guardian’s appointment, his fitness and whether sufficient security has been given. [*141]
    James Bradshaw died in 1828, having previously made his will, bequeathing his property to his two minor children, about the ages of eight and fire years. Geo. W. Egleston and P. G. Gerard were appointed executors. They qualified and sold the property, paid the debts and invested the proceeds under the order of this Court, in stock.
    Mrs. Bradshaw died before her husband. The children reside with their maternal grandfather, John Smith of New York. He was appointed by the Surrogate of New York guardian of these children, and gave bond and security for the discharge of his duties.
    The executors have always paid him the dividends on the stock, and he has recently applied to them, to transfer the property to him as guardian.
    The executors admit the facts stated in the petition, and are perfectly willing to transfer the estate if they can receive the sanction of the Court; but they aré not willing to transfer the property to a guardian not aPP°inted *riiis State, without such sanction, and this petition was accordingly filed to obtain it.
    Chancellor Johnston dismissed the petition — and a motion is now submitted to reverse the decision, on the ground that the petitioner having been appointed guardian of the legatees, in the city of New York, now the place of their domicil, was entitled to receive the estate of the minors and the prayer of the petition should have been granted.
    
      Dunkin, for the petitioner.
   Harper, J.

I have no doubt on 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. This must often be a matter of almost absolute necessity, but is subject to the direction of the Court. It has been held, that where no administration had been granted in the State, a debtor of an intestate, making payment bona fide to an administrator, appointed in another State where the intestate was domiciliated at the time 'of his death, was discharged. The executors might perhaps have been justified in paying over to the guardian, on their own responsibility. With respect to the infants, however, they are trustees, and it was proper that they should take the direction of the Court.

In making such an order, the Court will take every precaution to guard against abuse and loss to the infants. There must be a reference, not only to ascertain the fact of the guardian’s having been regularly appointed, according to the laws of the State in which he and the ward reside, but his fitness for the appointment; and whether sufficient security has been given.

The order dismissing the petition is, therefore, reversed, and a reference ordered accordingly.

Johnson and O’Neall, Js., concurred.  