OPINION OF THE COURT BY
PERRY, J.(Galbraith, J., Dissenting.)
This is an appeal by the ward, by her next friend, from an order of a Circuit Judge allowing J. A. Magoon, the guardian, the sum of $1250 as compensation for professional services rendered by him as attorney in resisting an application made by the ward for a termination of the guardianship. The allowance is sought to be set aside on the grounds, first, that Ma-goon’s appearance was not on behalf of the ward but for his own benefit in order to secure a continuation of the relationship *395of guardian and ward and the emoluments to himself arising: therefrom, and, second, that the sum allowed is excessive.
As we understand the argument for the ward, it is not com tended that extra compensation may not in any case be allowed: a guardian who is an attorney, for legal services rendered. Elsewhere the decisions on the subject are not uniform. In this jurisdiction it has become the established practice to allow such compensation in proper cases. See In re Estate of Kalua Kapukini, 14 Haw. 204; Magoon v. Brash et al., 11 Haw. 204, and also In re Estate of Hiram Maikai, 3 Haw. 522. In the’ case at bar, Magoon’s appearance and his resistance of the application were for the benefit of the ward; it was the guardian’s, duty, under the circumstances of the case, to appear and defend. Upon the record we find no reason for holding that the resistance offered was solely in the personal interest of Mr. Magoon.
Was the fee allowed excessive? The application for termination of the guardianship seems to have been based upon two’ grounds, (1) that the adjudication that the ward was a spendthrift should not have been made and (2) that the guardianship-was no longer necessary. The answer was a denial of the essential averments of the petition and an assertion that the guardianship was still necessary. The Circuit Judge after trial' granted the application but on appeal his decree was reversed' and the application denied. Evidence was taken before the Circuit Judge on four separate days and on three or four other days counsel appeared in court upon other details of the hearing. In this court, the proceedings consisted of a motion to’ dismiss the appeal, which motion was argued and passed upon within a few minutes, and on another day a submission of the main case without oral argument. The guardian’s brief was-less than four pages in length. The issues arising upon the application were mainly of fact and of no great difficulty. In-addition to these services, the guardian also appeared before a Circuit Judge upon a motion of Mr. Fitch, counsel for the ward,. for an allowance of fees, the proceedings consisting of an order, on one day, for a continuance, and, on another day, a hearing and ruling upon the matter. The main trial, it may *396be added, must have involved some preparation in the examination of witnesses and otherwise, although there is no evidence in this case on the subject.
Circuit Judge Gear, who made the allowance of $1250 appealed from, heard no testimony as to the value of Mr. Ma-.goon’s services but 'evidently acted upon his own knowledge of the proceedings had and of the services rendered. It is stipulated, however, in this court, although the record does not show this and although the order appealed from recites that there was no dispute as to the value of the services, that certain evi-dence theretofore taken before Circuit Judge De Bolt bearing upon the question of the value of Mr. Bitch’s services in pre-senting the application was by agreement considered as evidence on Mr. Magoon’s application before Judge Gear. This latter evidence, and more particularly the expert testimony of Messrs. Stanley, Robertson and Hatch, members of the bar, is much relied upon by the appellee in support of the allowance, made. The evidence of Messrs. Stanley and Robertson was, in brief, that the services of Mr. Fitch, as stated in the hypothetical question propounded, were reasonably worth from $1000 to $1500, and that of Mr. Hatch was that such services were worth from $1500 to $2000. Assuming that the evidence of these experts is properly before us, we do not regard it as entitled to much, if any, weight on this issue. In the first place, the witnesses testified concerning the services of Mr. Fitch and not concerning those of Mr. Magoon. One of the witnesses laid a great ■deal of stress upon the standing, experience and ability of counsel and the two others also considered that an element in measuring the compensation; and all three, if we may judge from their estimates of value, regarded Mr. Fitch’s standing, experience and ability as of a very high order. Whether or not they would place Mr. Magoon in the same class in those respects, it is impossible for us to say without indulging in conjecture. 'The witnesses, secondly, based their estimates very largely upon the fact that the services rendered consisted of an attempt to add the ward of the guardianship and to restore to her full control over her property. Mr. Magoon’s services were in opposi*397tion to that attempt and his energies were directed to the upholding and continuance of the guardianship. Then, again,, the hypothetical question upon which the testimony was based,, did not correctly state the facts material to be considered with reference to Mr. Magoon’s fee. The questions assumed that, in addition to the services in the Circuit and Supreme Courts,. Mr. Fitch had for a period of fourteen months acted as the legal adviser of the ward. No such services are claimed to have been rendered by Mr. Magoon. The question also assumed that the ward’s property was of the value of from $30000 to $40000, although on cross-examination two of the witnesses testified with reference to a property-value of $25000. The evidence is that the property did not exceed in value $22670 and was perhaps-less.
In making the allowance appealed from, the Circuit Judge, as appears from his written opinion, seems to have been largely influenced by the fact that Mr. Fitch, who had been unsuccessful in the attempt to have the guardianship terminated, had been awarded a fee of $1250 and reasoned that opposing counsel whose efforts had been successful should have at least as much. In this connection it may be noted that at the hearing before Judge De Bolt the ward consented to a fee of from $1000 to $1500, that no evidence was adduced by the guardian as to the value of Mr. Fitch’s services, and that practically the only contest by the guardian was on the question whether any fee at all should be allowed. In any event, this court is not bound by the standard of measurement adopted by the Circuit Judge. It may be added that no more can be allowed to Mr. Magoon than the latter, as guardian, would have been, under all of the circumstances of the case, justified in paying if he had employed other counsel; and in the latter event, acting, as he was, in a fiduciary capacity, he would not have been at liberty to employ counsel at fancy figures but it would have been his duty to bear in mind always the ability of the ward’s estate to pay, as well, as the other circumstances, and to secure assistance at a cost' that would be reasonable.
There is, then, before us no expert evidence entitled to weight *398on the subject of the value of Mr. Magoon’s services. Whatever the rule may be in cases where there is such evidence, the «court- in this case is- at liberty, and it is its duty, to give its own •estimate of the value based upon the evidence as to the nature .and extent of the services and the other circumstances generally. In our opinion, Mr. Magoon should be allowed, for his services in question, a fee of not exceeding two hundred and fifty dollars.
E. M. Watson, next friend, for the ward. J. A. Magoon, guardian, in person.The order appealed from is reversed and the cause remanded to the Circuit Judge for such further proceedings, not inconsistent with this opinion, as may be proper.