On the subject of the masters' fees and expenses and of the fees of the retiring guardian's attorneys, I am unable to concur.
As shown by the masters' report, the inventory book value of the ward's estate at the time of the resignation of the retiring guardian and the appointment of a successor was $1,012,769.73. The retiring guardian had been under a bond of $1,000,000. As was their duty under the order of the trial court, the masters examined all of the investments made by the retiring guardian as well as all of the statements of income received and of expenditures made. The face value of the securities attacked by the incoming guardian was only $145,745 and of this latter sum only $84,245 has been surcharged by this court to the retiring guardian. The time and the efforts devoted *Page 988 by the masters to the case were caused in part only by the errors of the retiring guardian in the making of investments and in large part by the examination into investments which were not attacked by any one and into investments which, although attacked, have been sustained by this court.
The resignation of the Trent Trust Company was prepared by the attorney of the incoming guardian. The accounts of the retiring guardian and its resignation were prepared and filed without the aid of any attorney employed by the retiring guardian. It was only after the new guardian had been appointed and an attack had been made by him upon some of the investments of the retiring guardian that the latter employed the attorneys whose compensation of $1500 is now one of the items in question. At this stage of the case the contest became one between the incoming guardian and the retiring guardian. The Trent Trust Company in its employment of counsel from that time on was seeking, not to protect the estate of the ward, but to protect itself from surcharges sought to be made against it. The employment of the retiring guardian's attorneys was not for the purpose of aiding the masters in their investigation, although undoubtedly it did operate incidentally by way of assisting the masters to a correct conclusion.
Under all of these circumstances an apportionment of the fees (both of the masters and of the attorneys) and other expenses incident to the hearing before the masters and the determination by them is required in order to treat both the ward's estate and the retiring guardian equitably; but as there is no inflexible rule relating to fees and other incidental expenses applicable alike to all cases of examination into the investments made by a guardian, so, also, it is impossible in the case at bar to apportion such fees and expenses with mathematical *Page 989 accuracy. The best that a court can do is to make an approximation in the way of such an apportionment. In this case an adjudication that the ward's estate shall bear all of the masters' fees and expenses and that the retiring guardian shall pay the fees of its own attorneys is as close an approximation to doing justice to the parties concerned as to me seems possible.
In all other respects I concur in the opinion of the majority.