Estate of Silling.

motives involving moral turpitude, they could not be held to have been actuated by good faith; and therefore, the expense of the reference ordered upon the accounting-to wit, the costs allowed a special guardian for his services, and to the attorney for the executor and the disburements, including referee's fees-should be charged against the objectors personally, and to make such payment certain it should be deducted from their respective shares in the estate in the hands of the executors.

(Decided August 19, 1888.)

Motion to charge objectors with expenses, etc., of accounting.

The facts appear in the opinion.

Hordley, Lauterbach & Johnson, for executor and motion.

David Fim, Martin L. Hollister and Oscar J. Dockstader, for heirs and devisees.

RANSOM, Surr.-The report of the referee was confirmed on the argument. I reserved consideration of the question whether the expense of the reference should be borne by the objectors personally. The executor has filed an affidavit of his attorney to sustain his motion to charge such expense to the objectors personally, and proves thereby that the objections were filed for the sole purpose of preventing distribution until the objectors could be prepared with an action against the executor. This statement was made to the executor's attorney by the attorney of the objectors, and is not denied by him. He simply swears that he does not remember it. The attorney for the objector and one of his clients stoutly contend by affidavit and argument that the objections were all filed in good faith. I have heretofore given the true definition of the expression "good faith" (See Estate of Whelan, Sur. Dec., 1888, 256).

This proceeding differs somewhat from that, as here I

Estate of Silling.

do not believe the objectors were actuated by motives involving moral turpitude. But they cannot be held to have acted in good faith if we have due regard for the motives confessed by their attorney. Their act in objecting may, perhaps, be fairly described as a bit of strategy in the course of their campaign to assert title in their father to a considerable portion of this estate, which the executor here had in possession as a part of his testator's estate. To this view I commit myself. The statute provides that, if justice requires, the surrogate may charge the costs of the contest upon the contestant personally, or upon the estate. It is manifest that the success of the objectors occasioned the delay incident to this reference, made necessary by their objections, notwithstanding the reference proceedings were forwarded with gratifying industry and brought promptly to a close, and thus reducing such delay to the minimum, they should not be at the expense of the estate, as thereby other persons interested therein, and not interested in the scheme of the objectors, will be compelled to suffer to some extent.

I conclude, therefore, that the expense of this reference,―viz., the costs allowed by me to the special guardian for his services therein and the attorney for the executor and the disbursements, including referee's fees, must be paid by the objectors personally, and such payment will be made certain by deducting the amount from their respective shares of the estate in the hands of the executor.

In re Kopp.

IN RE ACCOUNTING OF GOTTLIEB KOPP, AS GENERAL GUARDIAN, ETC.

SURROGATE'S COURT, NEW YORK COUNTY, JUNE, 1888.

$$ 2557, 2850.

Costs-when general guardian charged with accounting-when generat guardian not allowed commissions.

Where the evidence upon the accounting of a general guardian shows maladministration by him of his ward's estate, his ignorance is no excuse therefor, and he is properly disallowed any commissions, and the entire costs of the proceedings should be charged upon him personally.

A general guardian, who himself occupies premises in which his ward has an interest, is properly charged with his ward's share of the rents thereof.

Taxes, water rents, etc., of real property belonging to a ward, paid by the general guardian after the ward became of age, without the latter's knowledge or consent, cannot properly be considered upon the accounting of the general guardian. (Decided June 27, 1888.)

Exceptions to report of referee filed upon accounting of general guardian.

Other facts appear in the opinion.

Arthur P. Hilton, for contestant and exceptions.

Frank H. Rodenberg, for general guardian.

John P. Schmitt, for the executors.

In re Kopp.

RAMSON, Surr.-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 (1) imply that the guardian is entitled to commissions; and (2) 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, which 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, &c., upon said premises. These taxes, &c., 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,

Estate of Willett, No. 1.

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.

ESTATE OF MARGARET WILLETT, DECEASED. No. 1. SURROGATE'S COURT, NEW YORK COUNTY, JUNE, 1888. $$ 2557, 2558, 2561, 2562.

Costs-when not charged against contestants upon accounting of trustees -how taxed-commissions of trustees.

The mere fact that objectors, upon an accounting of testamentary trustees, were in the main unsuccessful, is not alone sufficient to charge them with the expenses of the contest; and they will not be so charged where they acted in good faith and the account was one which any reasonable man would have contested under the circumstances.

Where objections filed to the account of testamentary trustees were substantially disallowed, but the costs were not charged upon the contestants for the reason that they acted in good faith, the costs should not be charged against the trustees.

Where, upon the accounting of testamentary trustees, objections were filed and referred to a referee, who, after a trial, filed a report substantially overruling all of them, $70 costs of contest should be allowed the trustees.

Where, upon the accounting of trustees in the surrogate's court, a trial was had before the surrogate and another before a referee, the entire charge for days consumed before the surrogate and before the referee should be included in one sum in the bill of costs, under the provision, therein stated, as being for allowance under Code of Civil Procedure, section 2562.

Where, upon a taxation of a bill of costs, there was a wide discrepancy