In re Wright

the accounting is now presented for settlement, and the question arises as to the propriety of directing a judgment in favor of the guardian against the ward, and of the manner in which the costs of the proceeding are to be paid. An important consideration in determining this point is the fact that under section 2837 of the Code, notwithstanding the discharge of the guardian in this proceeding, his successor or the ward may compel another judicial settlement of his account, in the same manner and with the like effect as if this decree had not been made, and his sureties continue to be liable until his account is judicially settled in accordance with this section. The present proceedings are therefore necessarily tentative. I think that this consideration alone would control, so far as decree against the infant is concerned. The decree should judicially settle and state the account as between the guardian and ward, showing the balance in favor of the guardian, without any direction whatever as to its payment. Upon the question of costs, I consider the decision in Re Jones, 4 Sandf. Ch. 615 , influential. In that case it was held that on a trustee applying to be discharged from his trust, there being no cause for it other than his wish to be relieved from its duty, the court will impose, as terms of discharging him, that he bear the costs of the petition and the appointment of a new trustee, and that he be not allowed any commissions on the capital of the trust funds. The consideration of commissions to the guardian herein is disposed of by his stipulation waiving the same. The principle enunciated in Re Jones, supra, has been followed in Brautigam v. Escher, 2 Dem. Sur. 269, where it was held that the testamentary trustee retiring from office for his own convenience could not receive out of the trust fund an allowance to defray the expense of the proceedings to procure his discharge. In Re Allen, 29 Hun, 7 , the principle was applied so far as to disallow a trustee, retiring under such circumstances, commissions on the capital of the estate. The principle of law followed in the cases above cited is recognized in Phillips v. Lockwood, 4 Dem. Sur. 299, decided in 1886 by Surrogate Hollins. In the case at bar it will be noticed that the desire for the substitution of another guardian is mutual, and the history of the proceedings shows that unfriendliness, if not animosity, exists between father and daughter, and the relations between the trustee of the estate through which the ward derives her property and the father are inimical. My opinion is that the costs should be apportioned in the following manner: The infant should bear all the allowance awarded to the special guardian. The accounting party should be disallowed all costs, beyond the ordinary costs of an accounting, without contest. In addition to the fact that his retirement from the office of guardian is to a large extent for his own convenience, some weight should be given to the fact that the reference was made necessary by, and the contest related solely to, the allowance to the guardian of expenditures made prior to his appointment as such as well as after, which were allowed to him on the principle that had he made application to the court in proper time, it would have been granted to him. Had he procured his appointment and made application at the proper time, the necessity for this contest would have been avoided. The accounting and the contest arose purely and simply out of his neglect to make this application in proper time. I think the court was sufficiently considerate when it allowed to him expenses before his appointment as guardian, and taxed the ward’s estate for the excess of his disbursements in her behalf after his appointment.