majority">Parser, J.

It appears, from the final decision of the court, that the claim made by the appellee, as guardian of the appellant, was not well founded j and upon examination of the facts in the case it may well excite surprise that any controversy should have arisen. Had the appellant proceeded in the matter upon his own motion, or without competent advice, the responsibility might well be left to rest upon him. If without sufficient investigation he had seen fit to prosecute an unfounded claim, he could not have complained had he been left to pay the expense ; and there is enough to show that the claim was utterly unfounded, and to lead to the belief that a thorough investigation might have convinced any one of that fact. Were there no other circumstances, we should have no hesitation in disallowing any claim for the expenses thus incurred.

*19But there are other matters to be considered. The appellee was led, in the first place, before he took the guardianship, to a belief that injustice had been done, and he was solicited to become guardian for the purpose of having the error corrected. His first step was to consult two counsellors at law ; and for aught which appears, he disclosed to them all the information he had upon the subject. There is nothing to show that they disregarded their duty, and advised to the prosecution of a claim appearing to them to be unfounded. Upon their advice, so much time having elapsed that an appeal as a matter of right could no longer be claimed, he proceeded, in pursuance of the statute, to petition this court for leave to enter an appeal. What was laid before the court upon that application does not now appear. The adverse party came in, upon notice, and a hearing was the regular course of proceeding. It is suggested, that there was but a partial hearing, and that after the evidence on the part of this appellee, as guardian, had been put in, and some discussion had, Benjamin Burleigh, the defendant in that proceeding, assented that leave to appeal should be granted, for the purpose of having an investigation; and that the matter went off in this way without being fully examined by the court. These facts do not appear by the report of the auditor in this case. The case finds that leave to enter an appeal was granted by the court. But if it had been as suggested, it appears farther, that the matter was then committed to an auditor, selected by the parties or appointed by the court, and who their held the office of judge of probate for the county, who found $689 00 unaccounted for in the hands of Burleigh. This result is sufficiently astonishing upon the case before us ; and how the conclusion was reached is certainly not very apparent; but under all these circumstances, can we say that this guardian acted in bad faith, or so imprudently that the expenses of this litigation should fall upon him ?

He was to gain nothing by the litigation, if successful. *20In such case, the advantage would have accrued to his wards; and although this is not of itself a justification, it must be considered with the other facts ; and when we find that the guardian accepted his trust mainly because he was told that injustice had been done, and for the purpose of having it corrected ; — that he probably laid the facts as communicated to him fairly before counsel who ought to have been able to advise him correctly, and who did advise him to proceed ; — that an auditor, upon a hearing before him, found a large balance in favor of the wards ; — and when we add to this the fact that this litigation was had by permission of this court, upon due application for that purpose, even if this permission was granted in some measure upon the assent of the parties, we cannot surely charge upon this guardian bad faith, nor such a want of reasonable ground for belief in the justice of the claim as to make him liable to pay the expenses out of his own pocket.

However unfounded the claim may have been, and may now seem to be, that knowledge does not appear to have been possessed by the guardian at the time; and he had some right to rely upon others, if he stated fairly the facts within his knowledge. The circumstance that the appeal ivas granted by the proper judicial tribunal, if it had been upon an investigation, must alone have been conclusive upon the subject; for it could not be assumed that the prosecution of the claim was unreasonable, when done by the authority of a competent court, unless actual bad faith was apparent.

That this litigation has been a most unfortunate one for the wards, is very true — and that they, being minors, had no active agency in advising or carrying it on, also appears; but this cannot change the principle which must govern the case, or authorize us to charge all the misfortune upon the guardian, who prosecuted as he believed for their benefit.

Decree affirmed.

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