majority">Bacon, J.

The only controversy between these parties as presented on this appeal, respects the disallowance by the surrogate of items in the guardian’s accounts, amounting in the aggregate to some $400, consisting of charges running through six years, for his personal services and expenses in attending to and keeping in repair the property of which he had charge on behalf of his wards. If the surrogate had placed his decision upon the ground either that the services *35had not been rendered, or that the charges were improper or extortionate, we should not probably have deemed it expedient to review, or reverse his final judgment. But in the opinion given hy him in disposing of the case, it is expressly conceded that the services were rendered; but “ the charges,” he says, “ are all disallowed on the ground that the commissions of the guardian cover every thing which can be allowed to him for his services respecting the estate of his ward.”

This is placing the decision upon very simple and intelligible ground, and if the rule is as thus announced, and this case cannot for any other reason be excepted from its operation, then the judgment of the surrogate is right, and must be affirmed. Is it then, in the first place, the inflexible rule, that the commissions of the guardian cover “everything” which can be allowed to him for his services “ respecting the estate of his ward ?” It will be conceded that the accounts, settlements and compensation of guardians are governed by the same rules that are either prescribed by law, or by the construction of the courts have been made applicable to those of executors and administrators. In the case of executors and administrators, the statute provides that they shall receive “for their services,” besides their expenses, certain fixed rates of compensation by way of commissions upon their receipts and disbursements. Bow for what “ services” is this compensation provided ? Are they not, briefly and generally expressed, those which have respect to the proper management of the funds committed to their charge, to the duty of leasing and selling under certain circumstances, the real and personal estate, and to keeping and rendering just and accurate accounts ?

For services of this character, the statute has assumed that a certain rate of commission upon funds received and disbursed would afford a reasonable compensation, and has therefore fixed the rate accordingly. The rule is éxpressed in Vanderheyden v. Vanderheyden, (2 Paige, 288,) as follows : “ The executor must be confined tp the allowance of a fixed rate by *36way of commission &c. in full for his services in discharge of the trust.” And in respect to guardians, in Clows v. Van Antwerp, (4 Barb. 418,) the court use substantially the same language, when they say that “ for the services of the guardian as such the compensation is limited to the commissions allowed by law.”

There are cases to be found in our reports where language has been used, and sometimes the application of a rule has been made, indicating that this rate of compensation covered the entire field of service and duty of the guardian, and would apparently deny him remuneration for personal services outside of his specific trust, and for moneys actually disbursed by him for the benefit of the estate. We have been referred to several such cases. They indicate a jealous scrutiny, such as should always be exercised by the courts, in respect to accounts against infants, and the estates of deceased parties, which experience shows are peculiarly liable to spoliation. In McWhorter v. Benson, (Hopk. 28,) it was held that the act of 1817 authorized the court to make an allowance to executors, for their services, at a fixed rate, but did not authorize any special allowances without regard to such rate. It did not appear in that case that the executor had performed any services outside of his peculiar duties in taking charge of the estate, but it did appear that he had employed an agent to manage the affairs of the estate, which were extended and complicated, and for this agent a specific compensation was allowed, and thus practically, although not directly, the rule was dispensed with in that case.

In Clinch v. Eckford, (8 Paige, 412,) it was held that the executors were not authorized to employ one of their number to perform extra services as clerk, in keeping the accounts of the estate, and to allow him a salary in addition to the commissions allowed by law. The keeping of the accounts is one of the specific and most appropriate duties of an executor in the discharge of his trust. In Vanderheyden v. Vanderheyden, (2 Paige, 287,) it was however decided that an executor *37or guardian might employ a clerk or agent, and charge the expense to the estate, where from the peculiar situation or nature of the property, the services of such clerk or agent would he beneficial to the estate, although for his own services the statutory commissions only could be allowed. In the Matter of Livingston, (9 Paige, 440,) the same rule was held; -the chancellor deciding that the committee of a lunatic could not receive an extra compensation for his services as clerk on behalf of the estate, but that such compensation was embraced in the allowance of commissions under the statute.

Such is the general scope and tenor of the cases. And from them I think the rule is fairly deducible, that where extra compensation has been applied for and denied, the services for which such remuneration was asked, were strictly, and it might perhaps be said peculiarly, within the official duties of the executor, guardian or trustee, and that no other recompense can be allowed than such as the statute provides for conducting the administration of the estate in all that legitimately pertains to it.

But I do not understand that this rule is so narrow and restricted that it denies all compensation to a guardian for services of a personal or professional character, rendered by him for the benefit of the ward, and in doing which he has bestowed personal labor, and incurred actual expenses, and which have been useful and serviceable to the estate. Several examples of this are indicated in the brief of the appellants’ counsel; and it is pertinently said that by becoming a guardian the individuality of the person is not lost, nor is he any the less a physician, lawyer, farmer or mechanic, as the case may be. . If in any such character he bestows services reasonable in amount and valuable in their nature, why should he be deprived of all compensation for them because, in another character he has performed other services for which the law has made specific provision ? In the case of an attorney who had performed professional services for his ward, the court of chancery has decided that he was entitled to the costs *38of suits prosecuted by him on behalf of the estate. (In the. matter of the Bank of Niagara, 6 Paige, 213.) This decision, in my judgment, covers the whole ground, indicates the true rule to be applied to this case, and establishes the claim of the appellant to the compensation for services and expenses charged by him, it being conceded that those services were fairly and honestly rendered. If an attorney may charge for and collect his costs, which are in a large degree for his personal services, I am unable to see why a mechanic, for services in his line, rendered for his ward, is not entitled to the same measure of simple remuneration. It is no answer to say that the fees of the attorney are fixed by law, and are thus to be deemed a sort .of statutory allowance; for although the items are fixed, they are no less intended to be and are in fact a compensation for purely personal services, and thus afford to the guardian or trustee a personal profit.

If this is the correct conclusion, it is decisive of this case, and leads necessarily to a reversal of the decree of the surrogate. But there is another aspect, still, in regard to which it may be doubted whether the surrogate did not err in rejecting these disputed items.

During the time these services were rendered, the guardian, upon reference to and consultation with the surrogate then in office, received from him instructions in regard to the manner in which the work should be done, how the account should be kept, and the amount of his compensation, and from year to year and every year covered by these charges, the account was rendered to the surrogate, examined carefully, and the amount fixed and allowed by him.

One of the duties of the surrogate prescribed by the statute in respect to guardians, is, “ to direct and control their conduct.” (3 R. S. 362, § 1, sub. 7.) And this seems to me just one of the cases where the direction of the surrogate having been invoked, the whole matter having been under his advice and control, the service rendered and the charges •made pursuant to such direction, and the account scrutinized *39and settled by him, it should have been conclusive upon his successor, and upon no just principle liable to be again opened and readjusted.

No hardship could in such a case occur to the wards; for their interests were in the keeping of the tribunal peculiarly set for their protection and defense, exercising therein precisely the office discharged by the surrogate now in office, and with equal and co-ordinate authority. Of such a case I should say, in the words of Surrogate Bradford, that although for services as guardian there is no other compensation than the commission fixed by law, yet “for work done not as guardian, under the permission of the surrogate, there is no possible reason why he should not have the usual compensation.” It is not necessary, however, to put the case on this ground, as the other is conclusive.

The decree of the surrogate should be reversed, and the case sent back for a rehearing. The proper adjustment can undoubtedly be made upon the proof now before him, and he may perhaps deem it expedient to modify the order in regard to the costs of the proceeding, by charging them upon the estate!

Mullín, J. concurred.

Morgan, J.

(dissenting.) It is a principle of general application that one having a trust to perform cannot bind the cestui que trust by a contract in his own behalf. The temptation which such an authority would hold out to the trustee to make a profit of the transaction, is a sufficient reason for adhering to the principle in all cases which come within its application. (See Van Epps v. Van Epps, 9 Paige, 241.) It is admitted that the guardian in this case had no right as guardian to perform the services and charge them to his ward. But I have failed to appreciate the distinction between his doing the services as guardian or as a mechanic. It is said that it is no part of the duty of the guafdian to *40drive nails and repair houses and fences. But I am inclined to think that it was the duty of the guardian either to do it himself or to procure somebody else to do it. He was under no obligation to spend his time in doing the labor himself, but had an undoubted right to procure some one else to do it, and charge the expense to his ward. If he did it himself, he cannot make a profit out of it, for it is contrary to the whole tenor of the decisions to allow the guardian to make a profit in his dealings with his ward. The profit belongs to his ward, and not to the guardian. It may be asked, what are the profits in this case. It is difficult to determine, and this very difficulty shows the importance of adhering to the rule, which as I understand it, refuses to allow any .thing to the guardian except his commissions for personal services. Plausible reasons are given for allowing the guardian, who is a doctor, to charge the ward for services which he has rendered to his ward as a physician; and also to allow the guardian a certain sum for board when it appears proper that the ward should board in the family of the guardian. It is easy to see that in exceptional cases, such allowances would at least be no more than would be paid for the same services to others; and the guardian might be willing in some cases to board the ward cheaper than he could procure it elsewhere. Of course the statute allowances would cover the actual expenses of medicine and board in the cases supposed, and all beyond that are profits. It would doubtless prove a difficult task to determine what was the actual expense of board, when the account came before the surrogate; but it is better that the guardian should be put to this difficulty, than to allow him to make a. profit out of it. I think the statute intended to make full provision for the personal services of the guardian, whether he is a physician or a mechanic, and that it is a dangerous departure from the rule applicable to guardians and wards to sanction the doctrine which is so ably defended by the appellant’s counsel in this case. The chancellor in one ease allowed an attorney, who was guardian, to charge his *41ward the taxable bill of costs when the interests of his ward had been in litigation. It may be said of that case, that the statute and not the guardian, fixed the amount of the compensation. Still the precedent is now urged to give color to charges in all cases where the guardian has performed services instead of procuring others to perform them. I think that case stands quite alone a§ an authority in this state, and if it establishes a new principle, should not be extended to other cases not coming within its application. It is an anomaly in legal language for a guardian to hire himself to do carpenter's work for his ward, and such a contract is clearly a violation of the principle which prohibits a trustee to act for himself while he has a duty to perform towards his ward, inconsistent with his own interest as an individual. It might not lead to abuse if the -guardian, as in this case, first obtained the consent of the surrogate to charge for such services, but it is for the legislature and not the courts to adopt 'such a rule, if it is found necessary and convenient. There is no reason to doubt the good faith of the former surrogate in his dealings with the guardian here; and it is not from any belief that injustice was done the infant by the former surrogate, that I feel constrained to sustain the decision of the present surrogate in disallowing the items of account which the former surrogate thought proper to sanction; but I am unwilling to impair a rule so necessary to the safety of infants, and adopt a new one, which will hold out a strong temptation to guardians to eat up the estate of infants by similar charges. The decision or opinion of the former surrogate in allowing for these services, while the ward was under age, was without authority. (Diaper v. Anderson, 37 Barb. 168.) I think the decree should be affirmed.

[Oneida General Term,January 6, 1863.

Mullin, Morgan and Bacon, Justices.]

Decree reversed.

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