In re Carman — 21 N.Y. St. Rep. 254

Majority

p. 254

In the Matter of Richard F. Carman.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

Practice—Court has power to grant allowance to guardian for expenses ON ACCOUNTING.

The court has the power to grant an allowance to a guardian for the expenses of his accounting; the judgment of the court, however, must be founded upon legal proof as to the value of the services.

Appeal from order of special term, settling the accounts of guardians, and allowing $250, as and for the expenses of the accounting.

S. W. Dexter, for app’lt; J. Delehanty, for resp’t.

The court clearly had the authority to indemnify the guardian for the expenses of his accounting.

The authority to award costs or allowance in addition to ■costs in a proceeding of this nature, was not at all neccessary to justify this indemnification.

The court has the right to charge the trust fund with all The expenses to which the guardian may be put, in order to discharge himself of his trust; and therefore, whatever •expenses may have been paid by him, which are reasonable and just in discharging himself from the trust with which he has been clothed, are a proper charge to be allowed by the court. It was this power which the court assumed to exercise in the granting of the allowance for the expenses ■ of the accounting in question. It was not in the nature of •costs, or of allowance in addition to costs, but an indemnity to the trustee for the expenses incurred in discharging 'himself of his trust. It is probably true that at the time of the presentation of these papers to the court, as is claimed

p. 255

upon the part of the respondent, the matter of the amount to be allowed to the trustee was left to the court, but such does not appear upon the record, and we can only determine the question upon the facts which appear.

It is necessary, in order to sustain such an allowance, that it should appear to be just and reasonable, and until the evidence upon which the allowance is made, is spread upon the record, we are unable to determine as to whether the court had any legal proof upon which to act, or whether it acted entirely upon its own judgment. In cases of this, description, the amount of the indemnity is not in the discretion of the court, but the judgment of the court must be founded upon legal proof, and where there is no legal proof of the value of the services for which this allowance is made, it cannot be sustained.

The order in question, must be reversed, and the case remitted to the special term for further action without costs.

Daniels and Brady, JJ., concur.