
    Scobey v. Gano.
    1. An administratrix of an estate in which a minor is interested, is, under the act of 1858 (1 S. & 0. 671, § 3), ineligible to be appointed guardian of the estate of such minor; and the minor having become a resident of another county, the probate court of that county has power to appoint another guardian, although no order vacating the former appointment has been made.
    
      2i In the settlement of a guardian’s account, he was credited with the payment of moneys for his ward, which in fact had not been paid, and the account was subsequently corrected, during the minority of the ward— Held, that in such case the liability of the surety in the guardian’s bond is not affected.
    Error to the District Court of Butler county.
    On June IB, 1874, William H. Scobey, guardian of Eliza Kinney, commenced an action in the Court of Common Pleas of Butler county, against John Cox, administrator of Abraham P. Cox, and Charles L. Cano.
    An answer by Cano and a reply thereto were filed, the administrator making default; and the cause having been submitted to the court of common pleas on the testimony, that court found in favor of the plaintiff, Seobey, and rendered judgment in his favor, as such guardian, for $1,591.72.
    A motion for a new trial having been (overruled, a bill of exceptions was allowed, containing all the evidence, and, on error prosecuted by Gano, the judgment was reversed by the district court.
    A petition in error was filed in this court, on leave,to reverse the judgment of reversal.
    The material facts are as follows : Horatio S. Kinney dying in 1861, Amanda, his widow, was appointed by the Probate Court of Butler county as his administratrix. In 1865, Abraham P. Cox was appointed, by the same court? guardian of the person and estate of Kinney’s daughter, Eliza, then five years of age. Charles L. Gano was surety in his bond as such guardian. Cox continued to act as guardian until his death, which occurred in October, 1872, but he filed no settlement account in the probate court. Soon after his death, John Cox was appointed as his administrator.
    Amanda Kinney having, with her daughter, Eliza, removed to Hamilton county, of which county they became residents, Amanda was, on November 6, 1872, appointed by the probate court of that county guardian of the person and estate of Eliza, and gave bond and received letters of guardianship.
    On November 21, 1872, Amanda, at the request of John Cox, attended at the Probate Court of Butler county, where he, as administrator, filed a settlement account of A. P. Cox as guardian of Eliza Kinney. Amanda, as guardian, then gave him a receipt for $1,356.58, and he received credit in the settlement for the payment to her of that sum in money. In fact, however, no money was paid, but instead thereof, John Cox, as administrator, gave to Amanda a due bill for the amount, payable to her as guardian of Eliza Kinney; but no part of the due bill was ever paid. She says that the due bill was not received in payment; and it is clear that she did not fully understand the nature of the transaction.
    On April 6, 1874, Amanda and Eliza had again become residents of Butler county. On that day, Eliza, then nearly sixteen years of age, and living with her mother, went to the probate court of that county, and made choice of William II. Scobey as her guardian, and he was accordingly appointed guardian of her person and estate.
    On April 17, 1874, Scobey and John Cox appeared in the Probate Court of Butler county and consented to a modification of the settlement account; and thereupon the court entered an order modifying the settlement, so as to show that, while the true amount due to Eliza Kinney from the estate of her former guardian, A. P. Cox, was $1,356.58, yet that no part of it had been paid; and that Amanda had no authority to receive the due bill. The due 'bill was then surrendered, and the court ordered John Cox, as such administrator, to pay into com-t, forthwith, the amount so found due, with interest from November 21, 1872.
    The order to pay the money into court not having been complied with, Scobey, as guardian, brought this suit against John Cox, administrator, and Charles L. Gano, on the bond of Cox, as guardian, with Gano as surety ; and, as already stated, the district court having reversed the judgment which Scobey obtained, he seeks in this proceeding to reverse the judgment of reversal.
    P. G. Conklin and J. G. McKemy, for plaintiff in error.
    
      Thomas Millikin, for C. L. Gano.
   Okey, J.

In support of Scobey’s claim that he was legally appointed, his counsel rely on the fact that Amanda, mother of Eliza Kinney, was, at the time of her appointment as guardian, the administratrix of the estate of Horatio S. Kinney, father of the child; and they cite the act of 1858 (55 Ohio L. 54, § 3; R: S. § 6256), which provides that, “No person who may have been, or shall be, an administrator on an estate, or executor of a last will and testament, shall be appointed guardian of the person and estate, or of the estate only, of any minor who shall be interested in the estate administered upon, or who shall be entitled to any interest under, or by virtue of, such last will and testament; but an executor or administrator may be appointed guardian of the person only of any minor.”

Clearly, as it seems to us, the facts show that Amanda’s appointment was within the prohibition of this statute, however it may be construed; but the question remains, whether such appointment can be regarded as void in a collateral proceeding. We fully recognize the rule stated in the well-considered case of Shroyer v. Richmond, 16 Ohio St. 455, as to the character of the jurisdiction of the probate courts and the verity which is imported by their records; but this does not conflict with another well established general rule, that the jurisdiction of a court is a matter into which inquiry may be made even in collateral proceedings, where the record contains no finding of facts expressly showing jurisdiction. Maxsom v. Sawyer, 12 Ohio, 195; Moore v. Starks, 1 Ohio St. 369; Buchanan v. Roy, 2 Ohio St. 252; Fowler v. Whiteman, 2 Ohio St. 270; Callen v. Ellison, 13 Ohio St. 446; Pennywit v. Foot, 27 Ohio St. 615; Spier v. Gorll, 33 Ohio St. 236; and see Thompson v. Whitman, 18 Wall. 457, as to cases where the record shows jurisdiction. But here there is no express finding as to the qualifications of Amanda, and the fact that she was administratrix of an estate in which Eliza Kinney was interested, was probably unknown to the Probate Court of Hamilton county.

We come, then, to the consideration of the question whether the Probate Court of Butler county could lawfully appoint Seobey guardian, no order having been made setting aside or rescinding the appointment of Amanda, mother of Eliza Kinney. In determining this question we fully recognize the general rule that where a guardian has been appointed by the proper authority, and is in the discharge of the duties of his trust, the appointment of another person to the same office is void. Griffith v. Frazier, 8 Cranch (U. S.) 9; Thomas v. Burrus, 23 Miss. 550; Copp v. Copp, 20 N. H. 284; Fay v. Hurd, 8 Pick. 528; Robinson v. Zollinger, 9 Watts, 169. But we do not think that principle applies in this case. Amanda, being the administratrix of- Horatio S. Kinney, was ineligible to be guardian of the estate of a minor who was interested in the estate of the decedent. She was merely a guardian de facto; but she had performed only one act as guardian, so far as the record discloses, when she voluntarily relinquished all claim to the office, surrendered to Scobey the due-bill which had been imposed upon her, and evidently desired Scobey’s appointment. Besides, no other court than the Probate Court of Butler county had jurisdiction on April 6, 1874, to appoint a guardian for Eliza Kinney, for she was then a resident of that county and subject to guardianship therein. True, as already stated, no formal resignation of Amanda, her mother, had been entered of record, nor had any order been made setting aside or rescinding her appointment ; but this did not interfere with the power of the probate court to appoint Scobey as guardian, under the circumstances of this case.

It is said, however, on behalf of Gano, the surety, that he was discharged by the final settlement in the Probate Court of Butler county, made November 21, 1872; and that he can not be affected by a Gbange in that settlement made without his knowledge. But the position can not be maintained. The correction of the account was made while Eliza Kinney was still a minor, and there was the consent of the administrator, who filed the account, and the present guardian. Moreover, it does not appear that Gano knew that any such settlement had been made, much less that he changed his condition in any way in consequence of or since such settlement. Goodin v. The State, 18 Ohio, 6, is readily distinguished in principle from this case. Eliza Kinney could file a petition to obtain such correction, “ at any time within two years after the said ward shall arrive at full age.” 1 S. & C. 677, §§ 31, 33; R. S. §§ 6289, 6291. But here it was no.t necessary to resort to that course. Whatever interest the surety had in the final settlement, he had none which could interfere with the power of the probate court to make the correction in question.'

Judgment of the district court reversed and that of the court of common pleas affirmed.  