We concur in the majority opinion in all respects except in so far as it increases the allowance to the guardian ad litem from eight to thirty-five thousand dollars, and as to this we respectfully dissent.
Section 8259 of the Code of 1923 governs the fixation of such fees and confers upon the court appointing the guardian ad litem the duty of ascertaining "a reasonable fee or compensation to be allowed and paid to such guardian ad litem for his service rendered in such cause, to be taxed as a part of the costs." The court, in pursuance of this power and in the exercise of a judicial discretion incident thereto, made what appears to us a very liberal allowance.
It appears without dispute that, when extra counsel were authorized and employed by the court, they agreed to be satisfied with a reasonable fee to be fixed as a guardian ad litem's fee, and, unless it can be said that the court grossly abused the discretion, to the detriment of the guardian ad litem, the decree in this respect should be affirmed. Butler et al. v. Fuller et al., 204 Ala. 272, 85 So. 539.
The question presented in the litigation was one of law arising from the interpretation of the will of Watters, Sr., not involving any dispute of fact. For the services performed by the complainant's solicitors, involving the same character and extent of services, they were allowed a fee of $1500, and accepted it without question, and the evidence is clear to the conclusion that, if the minor had been sui juris and able to contract, he could have secured the rendition of the services rendered by the guardian ad litem and his associates for from three to five thousand dollars; but, being an infant, he must depend upon the court and its appointees to protect his interest.
The estate consists of a trust fund of liquid assets and cash in the hands of the bank as trustee, accumulated by the grandfather of the infant and left for its protection by the grandfather's will. The services rendered did not add one cent to the fund, and the controversy was whether the estate should go to the mother of the infant or to the infant. The services consisted of arguing the case and the preparation of the brief on the hearing in the circuit court and in this court on appeal, and, as conceded in argument, did not consume more than five months time. The minor's interest is protected here by taxing against his estate, as costs, a fee of $35,000 to be taken from said trust fund, and to that extent reducing the inheritance. This, to our mind, is shocking to the judicial conscience. The trial judge should be commended for his judicial courage in fixing the fee of the guardian ad litem at $8,000, and that decree, in our judgment, should be affirmed. *Page 262