#### JOHN GRIFFITH, Guardian, &c. *vs*SAMUEL BYRD, Administrator, &c.

On petitions for distributive shares, which are in the nature of proceedings in Equity, an appeal for costs only will not' be entertained, except under very peculiar circumstances.

Where the Guardian of an infant distributee sued the administrator of the estate the very day he was appointed guardian, and without any demand upon the administrator, and the administrator was guilty of no default, but promptly rendered an account, which was found to be correct, *held*that the Guardian should pay the costs of the suit.

The case of *Ryder1 v Jones,*3 Hawks. 24, cited and approved.

This was an appeal from the decree of *the*Superior Court of Law of fancy County, at Fall Term,- 1841, his Honor Judge Manly presiding, on a petition for a distributive share of the estate of George Byrd, deceased. George Byrd died in 1825, leaving surviving him a widow and nine children, and also six grandchildren, who were the children of Ann Griffith, a deceased daughter of the intestate. Of those grandchildren four were' infants in 1839, and for them the County Court then appointed a guardian ; and he, on the day of his appointment, and without any communication with or notice to the administrator, filed the present petition in the County Court in behalf of his ward tor an account of the personal estate of the intestate, George Byrd, and payment of the shares of the four infants. The defendant answered and showed a balance in favor of the estate of $211 75, due in December, 1826, of which one eleventh part, or the sum of $19 25, belonged to Mrs. Griffith’s children. The answer states that the defendant had always been ready to pay the shares of the said sum of $19 25, to which the four infants were entitled, but could not do so, for the reason that no guardian had been previously appointed for either of them ; *73and therefore the defendant submits whether he ought to pay ° 1 *J*interest. In the County Court there was a decree against the defendant for $>26 83$, from which the guardian appealed. Upon a reference in the Superior Courts a report was made in exact accordance with the answer, except only that theclerk charged the defendant interest while the money lay in his hands. That made the share of all the children of Ann Griffith amount,- on the 11th day of October, 1841, to $35 96. Neither party excepted to the report, and it was confirmed; and a decree thereupon made that the defendant pay to the guardian that sum of $35 96, but that the guardian should pay the costs of the suit. From this decree the guardian appealed to this Court.

*Francis*for the plaintiff.

No counsel for the defendant*

Ruffin, C. J.

Petitions for distributive shares are in the nature of proceedings in Equity, and are governed as to the costs; a's well as other matters, by the principles and practice of the Court of Equity: *Ryden*v *Jones,*3 Hawks, 24. In general it is the iule of that.Court, except under very peculiar circumstances, that an appeal will not be entertained for costs only. 2 Mad. Eq. 577. , The reason is, that in Equity costs do not, as of strict right, follow the event of the cause, but are given in the discretion of the Court, according to the circumstances and conduct of the parties in each case. On this ground alone; the decree would be comfirm-ed in the case before us.

But, besides, this case very fully evinces the soundness of the principles, on which costs are giver, in Equity; and that the decree here was a ver^ proper exercise of the discretion of the Court. The defendantis an administrator, a mere trustee, charged with no breach of trust and guilty of no default whatever! He interposed no obstacle in the way Of the plaintiffs. He might have done so without an imputation in this case, since' the petition does not make all the next of kin of the intestate parties, nor even the two adult children of Mrs. Byrd; and it would have been but at reasonable precaution, to make the *74*objection, that they were*not parties, in order to *protect the*defendant from the expense and trouble of accounting a second time with those persons. But the defendant waived every thing of that kind, and, without delay, rendered an. account, which is found to be correct. Under such circumstances, the defendant ought not to be made to pay the plaintiff’s costs nor even his own; but ought tó be indemnified for his necessary expenses. Then the hasty institution by the guardian of a suit so entirely needless, in the first instance, and the prosecuting of it by appeal from Court to Court, for distributive shares so very small as these, indicate, altogether, that the guardian sought the office that he might vex the defendant with a litigation, which he thought would be at the defendant’s expense. The suit seems to have been wantonly brought and vexatiously pursued. It is to be observed, too, that the decree, as it is, does injustice to the defendant, inasmuch as it makes him pay to four of the children of Ann Griffith, what was found to belong to all six. This we cannot now correct, forasmuch as the defendant submitted to it. But it furnishes another reason for not disturbing, *bat*affirming the decree appealed from; which is done accordingly and with costs in this Court.

Per Curiam, Decree affirmed with costs.