Concurring in Part and Dissenting in Part. — While I concur in the view that the amount of the judgment of the district court against the guardian should be increased, I cannot agree with the conclusion of the majority of the court as to allowances to the guardian for attorney’s fees and for his personal services.
As to attorney’s fees, it seems to me the majority opinion ignores the very wholesome rule there stated that the burden is on the guardian to show the necessity for the employment of an attorney. In this case no suit was brought and none was threatened that would have involved the guardian. Most of the so-called services of the attorney consisted of advice to the guardian about matters with which he had nothing to do and about possible lawsuits to which, if they had been brought, the guardian would not have been a party. The *202appearance of the attorney for the guardian in the probate and district courts was rendered necessary by the negligence of the guardian, and under the rule announced cannot, I think, be properly charged against the estate. In my judgment there is a total lack of necessity shown for the employment of an attorney.
As to the allowance of $367.20 to the guardian for his services, I am not in accord with the majority, for the reason that the guardian’s course throughout the entire period of his guardianship, beginning in 1906, has been one of gross negligence and unfaithfulness. A re-reading of the record confirms me in this view, which is based almost wholly on the reports and testimony of the guardian himself. The estate of the ward in this case consisted entirely of money paid into the hands of the guardian, which required him to keep accurate accounts of the money received^ the amount earned by him therewith and the expenditures made by him. He admits receiving $3,311.82 belonging to the ward, but, though he was asked to give the date upon which he received this sum, we search his testimony and his reports in vain for the exact date. This court has been able to fix a definite date for the beginning of his responsibility only by faking the date upon which he verified his first report, Sept. 25, 1908. While this is accepted as the earliest date that can be definitely fixed for charging him with these funds, there is evidence in the record strongly tending to show that on the date above mentioned he had been in possession of the funds for more than a year. He made no attempt to obtain interest for his ward until compelled to do so after complaint had been made by the ward’s sister, and then he was content to accept the low rate of 4 per cent, with no pretense that at any time he made the slightest effort to get more. Possibly this was the best that could be done safely, but if so it is somewhat singular that the guardian nowhere claims that it was. In the district court he testified that he was carrying the funds in a certificate of deposit which he renewed every six months for the amount of the old certificate and interest for the preceding six months, but when he rendered his account to the probate court he charged *203himself with only simple interest. It is not necessary, however, to rely solely upon these matters in determining the degree of fidelity shown by the guardian in the execution of this trust, which the courts universally hold to be of the highest and most sacred character. His interest in and attention to his duties are clearly indicated by his answer when questioned as to his employment of an attorney: “I had given a good-sized bond in this matter, and I wasn’t giving it any special attention — it was more perfunctorily, my handling of it — and I wanted the advice of an attorney to keep me straight. ’ ’ And further, when he said in reply to a question of his attorney as to what he meant when he said he thought this was to be a temporary affair:
“Why, I expected that at any time I might receive a court order to distribute the money; I was appointed at the instigation of someone interested in the heirs, I don’t know who; I think it was Thompson, of Pendleton; it was merely perfunctory with me; I gave the bond and took the appointment, and if I am allowed to say so, at that time I had matters that were of moment and weight to me, considerably more than was this along about those dates, and I didn’t do anything more in this matter than I was naturally called upon to do, or give it much thought. It seemed to be running along all right, and I was given to understand from Mr. Smith this would be temporary, and I let it run along that way.”
When we contrast the spirit and conduct of the guardian as expressed above with the spirit and conduct enjoined by the law in requiring the guardian “to dispose of and manage the estate according to law and for the best interest of the ward, and faithfully to discharge his trust in relation thereto,” it seems to me there is no escape from the conclusion that the guardian has been guilty of gross negligence and unfaithfulness to his trust. So believing, I think the court should disallow all his claims for compensation for himsklf and for attorney’s fees and add to the sum of $4,904.35 the sum of $100 allowed as attorney’s fees and the sum of $367.20 allowed the guardian for his sendees, with interest on said *204last-named amount at 7 per'cent, compounded annually, from Sept. 2*5, 1908, to March 1, 1917, and direct the district court to enter judgment as of March 1, 1917, against the guardian for the aggregate of these sums.