SUPPLEMENTAL OPINION ON REHEARING.
Friday, February, 17, 1911.
Per Curiam.In a petition for n rehearing our at-' tention has been called to a mistake of fact in the opinion heretofore filed herein, and to the further fact that due consideration was not given the case of Ordway v. Phelps, 45 Iowa, 281. A re-examination of the record shows that we were mistaken in saying that the guardian was appointed as the result of a second trial. The facts in this connection are that Phinehart was appointed temporary guardian upon an ex parte showing, and as such took possession of some of the property of the ward; that there were thereafter two trials, the first resulting in a disagreement, and the second in a verdict of a jury finding Walker incompetent and a proper subject for guardianship. This last verdict was set aside by the trial court, and upon appeal here the order was sustained. Walker v. Walker, 115 N. W. (Iowa) 1132. Before another trial could be had, *290Walker died, and we may say parenthetically that in a contest over the probate of his will he was found to be lacking in mental capacity. In re Walker’s Will (Iowa), 128 N. W. 386. After the death of Walker, the court ordered the temporary guardian to make final report, and the proceedings with reference thereto were as stated in the original opinion. It should also be stated that the original petition was prepared in the presence of Thomas Walker, was read over to him and that he stated to the attorney who drew the petition that he wished Einehart appointed to manage his property. Einehart was also present and took part in the conversation. Pursuant to this the following statement was written into the petition: “That the defendant himself desires that one J. M. Einehart shall be appointed to take charge of his affairs and' manage the same under the direction of the court.” The appointment of Einehart was made under the allegations of this petition. So much by way of correction of the facts stated in the original opinion.
Coming now to the law: The case most' strongly relied' upon by appellee, to wit, Ordway v. Phelps, 45 Iowa, 279, was cited in the original opinion; but nothing was said specifically of the doctrine of that opinion. It is strenuously insisted that the case is controlling, and calls for an affirmance of the order made by the trial court. In view of this contention, we have thought it advisable to note the facts which distinguish.that case from this. In that case attorneys, who, it is claimed, had rendered services for ia guardian of one deceased, filed a claim with the administrator of'the estate of the deceased, seeking to hold the estate liable. They did not claim anything of the guardian, but elected to present their claim against the estate of the deceased. The trial court in that case, without' request of either party and upon, its own motion, ordered the matter transferred to the guardianship proceedings, and directed that the attorneys file their claim with the *291guardian and in the guardianship proceedings. This order was, of course, erroneous; for the attorneys were not seeking to enforce their claims against the guardian, and did not claim that they had -any against the guardian. Surely in such a situation the trial court was in error in ordering the transfer of the matter to the .guardianship proceedings ; no claim having been made against the guardian, and the report of the guardian being in no manner involved.
Here the guardian filed his report upon order of court. He presented his claims for expenses incurred, and asked for a full settlement of all matters connected with his trusteeship. The administrator appeared and filed objections, and was properly in court. The court itself had jurisdiction of the subject-matter and of all the parties, and there was no occasion for ordering the matter transferred to the estate of Walker. The Ordway case does not hold that, in a guardianship proceeding, proper and reasonable charges and expenses can not be considered and allowed in settling the matters of his guardianship, although his ward may have died pending the guardianship. True, the guardian can not, after the death of his ward, incur additional expenses, save such as are necessary to preserve the property until it may properly be turned over to the representative -of the estate; but upon final settlement of his accounts he should be allowed the proper and reasonable expenses, if any, incurred by him before the death of his ward.
The original opinion, with these modifications, is adhered to, and the petition for rehearing is overruled.
Evans, J., taking no part.