In re Moody

Under our former statutes (S J¿. 5t7i ed., 185, § 87 ¡ id., 177, §§ 58-56,) where there was no general guardian at the time of the accounting and decree, the Surrogate was obliged to direct the investment of the fund, .and see to its final disposal as therein directed. He was clothed with no power, after making the decree as provided, to ord.er it paid to a guardian subsequently appointed. The above section 87 has been superseded by §2746 of the Code, but §§52-56 of the R. S. are unrepealed, and are still in force, and have to be read in connection with above § 2746, in order that we may know how to dispose of a distributive share where there is no general guardian. Hence, if there be no guardian, the distributive share, under § 53 should, if there were no other and more recent enactment, be invested under the order of the Surrogate. But by § 2537 of the Code, the share must be paid to the county treasurer, to be invested by him. If this were all, it would have to be kept invested by the latter, as it was formerly done under the Surrogate’s direction. But again, the last mentioned section makes §§ 744 and 747 applicable to a case of this kind, the latter, of which authorizes the Surrogate, at any time, to direct the money to be paid to a guardian, if he has given security satisfactory to the court for the faithful execution of his trust.

I have nothing before me to show what security has *626been given. The petition merely alleges that the petitioner has given the bond required by law. The amount of the penalty will depend upon the amount of the minor’s estate, as stated in the petition to the Surrogate of Hew York, on the application made for his appointment, and as to which this court is uninformed. A certified copy of such petition "and of the bond will furnish the needed information, on which this court may judge as to the sufficiency of the security given by the petitioner. If it shall be found satisfactory, the order sought will be made.