The mother of the infants, who was the only surviving parent, died on the 17th day of October, 1899, leaving a last will and testament by which, among other things, she appointed Arthur B Appleby,. John W. Herbert and Mrs. Amanda V. Holmes executors of her estate, and directed that such of them as should so qualify should also be the guardians of such of her children as were under the age of twenty-one years at the time of her death. The will was admitted to probate, and Mr. Appleby and Mrs. Holmes qualified as executors. On the 6th of December, 1899, Mrs. Margaret I. Barrios, the married sister of the infant children of the. testatrix, filed with the surrogate an affidavit that the two persons named as guardians were non-residents of the State of New York, and had no place for the transaction of business therein, and she objected to the • granting of letters of guardianship to them, unless they should give adequate security for the performance of the trust. After that Mr. Appleby and Mrs. Holmes presented a petition to the surrogate, and upon it procured an order to show cause, directed to Mrs. Barrios, why the surrogate should not issue letters of guardianship to them upon such terms as might to him seem just. On the hearing a bond in the sum of $60,000 properly executed was presented on behalf of the guardians. Affidavits were filed with the surrogate as to the value of the estate of the infants which would come into the hands of the guardians, and after taking proof the surrogate denied the application of the appellants to be appointed guardians. The appeal is taken from that order.
In our judgment that order was érroneous. The mother of these infants, who was the only surviving parent, had an absolute right to designate who should be the guardians of her children. (Domestic Relations Law, Laws of 1896, chap. 272, § 51.) As soon as the will had been admitted to probate, the persons so designated were at liberty to qualify within thirty days, and when they had so qualified they were entitled to letters of guardianship. (Oode Civ. Proc. § 2852.)
The particular objections here were that the persons named as *191guardians were not residents of the State of Hew York, although they were citizens of the United States, and also that their circumstances were such that they could not furnish adequate security. When these objections were made it was the duty of the surrogate to satisfy himself that they were well taken. (§§ 2637, 2852.) If the only objection had been that the persons were non-residents of the State, still the surrogate would have been at liberty to issue the letters if they had an office in the State for the transaction of business. This they attempted to show in the present case, but whether it was proved to the satisfaction of the surrogate or not we are not advised. However, the surrogate was not at liberty to refuse to grant letters of guardianship, even if he had reached the conclusion that they had no such office in the State, or that their circumstances were such that they could not furnish adequate security (§ 2638), for he was bound, nevertheless, to issue the letters where these are the only objections upon requiring such security as the circumstances of the case demand. Whether the particular bond offered was one which, under all the circumstances of the case, was sufficient to secure the infants in whose interest the will created the trust was a question to be determined very largely in the discretion of the surrogate, and depended very largely upon what amount he considered the value of the estate to be and the residence and circumstances of the applicants. If it was such as was stated by the objector, it may very well be that the bond was not large enough. But even if it was too small he was not at liberty to refuse to grant the letters, but he should have prescribed the amount and the kind of bond that should be given by the guardians, and upon their giving it he should issue the letters as required by section 2852 of the Code. The decree must be reversed, with costs, and the matter sent back to the surrogate with directions to issue the letters of testamentary guardianship upon the compliance of the applicants for them with the provisions of the statute.
Van Brunt, P. J., Barrett, Patterson and McLaughlin, JJ., concurred.
Decree reversed, with costs, and matter sent back to the surrogate as directed in opinion.