In re Austin's Estate

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.