The record is not inconclusive in establishing whether the Guardian has failed to properly account; the record is conclusive that she did not properly account, and that she offered no legal or equitable excuse for her failure to comply with the provisions of 58 O.S. 1961 § 550[ 58-550], which provisions are mandatory upon both the litigants and the trial court. Considering the record, this case falls within the observation made in In re Lewis' Estate, 81 Okla. 240, 196 P. 341, on page 346, wherein we said: "It does appear that the guardian was like numerous other guardians who have an erroneous idea that when they are appointed guardian they become the owner of the ward's property * * *."

(Sec. 15-228, I. C. A.; In re Jones' Estate, 135 P. 293; Minnesota Loan Trust Co. v. Pettit, et al., 175 N.W. Rep., p. 540; In re McKinney's Estate, 112 Cal. 447, 44 P. 743; Davison v. Sibley, 79 S.E. 855; In re Johnson's Estate, 245 P. 1089.) It is a well settled rule of law that the rental value of the real estate of a decedent used by the executor for his own personal use shall bee charged against him. (Bancroft's Probate Practice, Vol. 3, p. 1622, Sec. 951; Walls v. Walker, 37 Cal. 424; In re Lewis' Estate, 196 P. 341; In re More's Estate, 54 P. 97; In re Laberee's Estate, 269 P. 861; Bancroft's Probate Practice, p. 1622, note 13.) GIVENS, C.J.

As to the number of acres in cultivation in the year 1915, we conclude from the evidence that the additional land cleared in that year was not cultivated for that year and to that extent the guardians should not be charged with the additional increase in acreage from 65 to 81 acres until the year 1916; that the amount chargeable for the year 1915 should be reduced in the sum of $160 on account of error as to the number of acres in cultivation, and with that exception the finding of the court as to the rental value of the land should be affirmed. In the case of In re Estate of Lewis, 81 Okla. 240, 196 P. 341, it was there held that where a guardian reports that he has rented certain lands of his ward, and reports only a nominal sum received as rents, and it is disclosed that the guardian rented the land to his minor son and a negro emloyee, the guardian furnishing the teams and seed and was to receive one-half the crops, and no accounting was kept of the crop raised, it was not error for the court to charge the guardian with the reasonable value of the land during said time, and where the amount charged as the reasonable rental value of the land is not clearly against the weight of the evidence, the finding will not be disturbed on appeal to this court. Complaint was also made by the plaintiff in error that the trial court did not allow him compensation for clearing a portion of the land.

This may be done by any evidence, either direct or circumstantial, which is competent under the well-recognized rules of evidence. See 12 Ruling Case Law, 1154; Tilman v. Tilman. 74 Okla. 259, 177 Pac, 558; In re Cobb's Estate, 66 Okla. 53, 166 P. 885; In re Bates' Guardianship, 70 Okla. 321, 174 P. 743; In re Lewis' Estate, 81 Okla. 240, 196 P. 341; In re Myers Estate, 93 Okla. 143, 219 P. 943. The plaintiffs in error in their brief assert that the lower court, without evidence to support its action, wrongfully surcharged the guardian's approved annual reports as to his wards as follows:

The appellee, in contesting the $666.66 item and the $84.88 item, which were allowed by special order of the court upon petition of the guardian, does not object to or contest these items by motion to set aside the orders allowing and directing them to be paid, and does not claim any mistake or fraud, and does not deny that they were paid, but proceeds on the theory that they are such items of the estate reported in the annual reports as can be contested by objection to the final report of the guardian, under the general rule as stated in Lewis' Estate, 81 Okla. 240, 196 P. 341; In re. Cobb's Estate, 66 Okla. 53, 66 P. 885; Tilman v. Tilman, 74 Oklahoma, 177 P. 558, and Rule 4 of this court, stated in 47 Okla. at page xv; and we are in full accord with the general rule as stated in all these cases but they are not applicable to the question raised by the appellant in the case at bar. In the case of Lewis' Estate, supra, all the annual reports of the guardian were introduced in evidence and the question of fraud and proper vouchers were the questions involved in the case.

Section 16 of art. 7 of the Constitution provides that all cases appealed from the county court to the district court shall be tried de novo in the district court upon questions of both law and fact. See, also, In re Lewis' Estate (Hobbs v. Wiley), 81 Okla. 240, 193 P. 341. It is unnecessary to file a motion for a new trial where the case is tried de novo in the appellate court.