p. 832In the Accounting of Gottlieb Kopp, as General Guardian, etc.(Surrogate’s Court, New York County,Headnote
■General guardiAn oe incant—When not entitled to commission by REASON OE maladministration—When charged with costs. .Where from the testimony it appeared that the guardian of an infant had turned over to said infant upon his attaining his majority only half of his property, had not charged himself with all the interest he had received, and had failed to charge himself with certain rents received and had permitted his mother-in-law to live in certain of the ward's property without paying rent and without the knowledge of the ward paid taxes, etc., thereon after the ward became of age, Held, that the facts both justify and demand that the guardian be allowed no commissions and be charged personally with the entire costs of the proceedings on the accounting. That the taxes paid as aforesaid could not constitute a portion of his account.
Arthur P. Hilton, for contestant; John P. Schmitt, for executors; Frank H. Rodenbery, for general guardian.
The above general guardian filed his account upon his ward attaining majority. Objections to the same were filed by the ward, and the account and objections were sent to a referee. His report has been filed, to which exceptions are taken by the ward.
The two exceptions relate to the findings that (1st) imply that the guardian is entitled to commissions; and (2d) that the costs of this proceeding should be paid from the estate.
From the testimony taken it appears that when the ward attained his majority in 1885, the guardian turned over to him $1,107.95, claiming that that sum was all the money in his hands belonging to the ward, whereas he actually had $2,144.79, with which sum the referee has charged him. It further appears that the guardian received from the savings bank more interest than he charged to himself,
p. 833which sum the referee has charged against him. It further appears that the guardian failed to charge himself with certain rents of premises, in which his ward had an interest and which he himself occupied. The ward’s share in these rents has been correctly charged against the guardian by the referee- It further appears from the testimony, and is correctly found by the referee, that the guardian permitted the stepmother of his ward to occupy and remain in possession of the premises above referred to and to collect the rents thereof without herself accounting therefor; and, further, that, after the ward became of age, the guardian, without his knowledge or consent, paid taxes, water rents, etc., upon said premises. These taxes, etc., cannot properly constitute a portion of his account.
The question of granting or refusing commissions is so well settled to be entirely in the discretion of the surrogate, "that it is unnecessary to discuss that point or to cite any authorities to sustain it. The evidence shows maladministration of the ward’s estate by the guardian. This is substantially found by the referee, who, however, excuses the guardian on the score of ignorance. Ignorance is no excuse in law. This is an eminently proper case to disallow all commissions, and the facts not only justify but demand that such a course be taken, and that, furthermore, the entire costs of this proceeding be charged upon the guardian personally. 0