
    In the Matter of the Estate of Winifred Austin, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 24, 1888.)
    
    Surrogate’s power to anticipate payment oe legacy—How exercised— Code Civ. Pro., § 2719.
    The power of the surrogate to anticipate the payment of legacies should he exercised with great care and caution. Under Code of Civil Procedure, § 2719, as a condition of payment, the surrogate must require security to he given.
    Appeal from an order of the surrogate directing the payment to the respondent, Leonidas S. Osborn, of the sum of $500, in anticipation of the payment to him of his legacy under will of decedent.
    
      Henry L. Sprague, for app’lt; Henry B. Hathaway, for resp’t.
   Van Brunt, P. J.

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 elymosenary institutions, their determinations should not be" controlled or influenced by such considerations, and it is doubtful 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 was irregular and improper.

The order should be reversed, with $10 costs and disbursements, with.leave to renew upon additional papers.

Brady and Macomber, JJ., concur.

Appeal from an order of tho surrogate directing the payment to the respondent, Winifred Osborn, of the sum of $500, in anticipation of the payment to her of the income of a legacy.

Henry L. Sprague, for app’lt; Henry B. Hathaway, for resp’t.

Van Brunt, P. J.

The same disposition must be made of this appeal as was made of that upon the appeal from the order in favor of Leonidas Osborn.

Macomber and Brady, JJ., concur.  