
    William A. King, guardian of Caroline F. Cooper, v. Samuel S. Bell et al.
    B. was appointed and qualified as guardian of C., an infant, and a person of unsound mind; but the record was silent as to the grounds of the appointment. 0. was of unsound mind when she arrived of age, and so continues. For more than seven years after 0. was of age B. acted as her guardian, and was repeatedly so recognized by the court in settling his accounts, in requiring a new bond, approving the same when presented, and in accepting his resignation and settling his final account. Held,
    
    1. That, as the court had jurisdiction to appoint a guardian, on the grounds of lunacy as well as infancy, the presumption is, upon the facts stated, that the appointment covered both grounds.
    2. That in such case, the taking of the new bond after 0. arrived of age, but while still of unsound mind, was authorized by law.
    8. The sureties on such new bond are liable for a breach of its conditions.
    4. In an action against three defendants, upon a joint and several obligation, final judgment was rendered in favor of two of said defendants, and the action was allowed to stand undisposed of as to the third.
    
      In a petition in error by tlie plaintiff to reverso tlie judgment against him in favor of the two defendants, tlio third, against whom no final judgment has been rendered,'is not a necessary party.
    Error to tlie District Court of Licking County.
    Tlie court of common pleas and district court sustained a demurrer, filed by defendants Flory and Shields, to the following petition, on the ground that no cause of action was stated against them.
    
      “ The said plaintiff, William A. King, as the guardian of Caroline E. Cooper, for cause of action herein, says:
    
      “ That on or about the 4th day of February, a. d. 1856, the said Samuel S. Bell was appointed by the probate court of said county to be the guardian of the said Caroline E. Cooper, who was then a resident of said county, an infant, and (as the plaintiff is informed and believes) a person of unsound mind; that the entry of said appointment, made upon the records of said probate court, did not contain any express adjudication that the said Caroline was then a minor or of unsound mind ; but stated that said Bell was appointed guardian of Caroline E. Coojier, aged seven years, heir-at-law of Elijah Cooper: that the said Bell then gave bond according to law, and entered upon the discharge of his duties as such guardian; tliat the said Caroline became eighteen years old on or about the 20th day of April, a. d. 1867, and at the time of arriving at that age she was and has ever since then been a person of unsound mind, and incapable of managing her business affairs; that the said Bell, from that time until the 16th day of September, A. d. 1874, acted as her guardian, and from time to time, and in the years of 1867, 1869 and 1871, filed his accounts as such guardian, in the said probate court, in which accounts he asserted himself to be such guardian; and his said accounts were passed upon and settled by said court accordingly; that on or about the 3d day of April, a.d. 1871, the said Bell appeared in and before the said probate court, and represented to the same that Justin Morrison and Alexander Morrison, his sureties on his bond, as such guardian, theretofore given in said court, were non-residents of Licking comity; thereupon, upon the motion of said Bell, the following order or judgment was made by said court:
    “ 1 IN THE MATTER OF THE GUARDIANSHIP OF CAROLINE F. COOPER.
    “ ‘ This day came Samuel S. Bell, guardian of Caroline F. Cooper, and on his representation that Justin Morrison and Alexander Morrison, his sureties on his bond, heretofore given in this court, as such guardian, are non-residents of Licking county, and for other causes on the motion of said guardicm, it is ordered by the court that said guardian enter into a new bond in the sum of $12,000, as such guardian, with William Shields and Abraham Flory, freeholders of this county, as his sureties, conditioned according to law, and the said guardian having entered into said new bond, the same is approved and filed.’
    “ That on the said 3d day of April, a. d. 1871, the defendants made and delmered to the judge of the said court of probate, their writing obligatory of that date, sealed with their seals (and a copy of which is attached to the original jtetition herein, and made a part of this petition), and thereby bound themselves, jointly and severally, to pay to the state of Ohio the sum of $12,000.
    “ That the said bond was and is subject to the condition that it should become void if the said Bell should faithfully discharge his duties as such guardian, and otherwise, to be and remain in full force; that on the same day the said bond and sureties were approved by said court.
    “That on the said 16th day of-September, 1874, the said Bell resigned his said guardianship, and certain proceedings were had in said probate court touching the same. The record whereof is in the following words:
    “ ‘ Be it remembered, that on this day, Samuel S. Bell, guardian of Caroline Cooper, a lunatic, tendered to this court ■his resignation as such guardian; and which resignation, for reasons satisfactory to the court, is hereby accepted, and said guardian is hereby ordered to file his final account herein, which is accordingly done.’
    
      
      “ That, thereupon, on the 22d day of September, 1874, the plaintiff herein was appointed by said probate court to be guardian of the said Caroline as a lunatic or person of unsound mind, and on that day he gave bond, with sureties, according to law, which was approved by the court, and he entered upon the discharge of his duties as such guardian.
    “ That during the time the said Bell was so acting as guardian, as aforesaid, there came to his hands, of the moneys and estate of the said Caroline,the sum of five thousand dollars or more; that the said Bell having, on the 14th day of October, 1874, filed liis final account as'such guardian in said probate court, the same was, on the 24th day of November, 1874, settled, and it was then found and adjudged by said probate court that there was, and in fact there then was in the hands of the said Bell, of the moneys aforesaid, the sum of four thousand one hundred and twenty-six dollars and eighty-four cents ($4,126.84), interest being computed to the said last named day, and which sum the said probate court then ordered the said Bell forthwith to pay to the plaintiff.
    “ That on the 8th day of December, a. d. 1874, the plaintiff, as such guardian, demanded of said Bell the payment of said last named sum; but he has not paid the same or any part thereof, except the sum of $330.14 paid by his assignee on January 8th, 1875. The plaintiff demands judgment against the defendants for the sum of three thousand eight hundred and twenty-six dollars and eighty-nine cents, with interest from the said 8th day of January, a. d. 1875. “ J. Buckingham,
    Attorney.
    “ The plaintiff, yielding to the defendant’s motion in that behalf, says that .the said sum of five thousand dollars, or more, received by said Bell was so received before the kid 3d day of April, a. d. 1871, and before the making of the bond, on which this writ is founded. “ J. Buckingham,
    Plaintiff’s Attorney.
    BOND.
    “ Know all men by these presents, that we, Samuel S. Bell, William Shields and Abram Flory, are held and firmly bound unto the state of Ohio, in the sum of twelve thousand ($12,000) dollars, for the payment of which we hereby jointly and-severally bind ourselves,'our heirs, executors and administrators.
    “ Sealed with our seals, and dated at Newark, this 3d day of April, a. D. 1871.
    
      “ The condition of the above obligation is such, that, whereas, the above bound Samuel S. Bell has heretofore been appoint- ■ ed by the probate court of Inching county, Ohio, guardian of the person and estate of Caroline F. Cooper, heir-at-law and child of Elijah Cooper, deceased, late of Licking county, which appointment the said Samuel S. Bell has accepted, and a new bond being required of him by the court. ■
    
    “Now, if the said Samuel S. Bell shall faithfully discha/rge all Ms dnties as such guardian, as is required bylaw, then the above obligation to be void, otherwise to remain in full force.
    “ Samuel S. Bell, [Seal.]
    “¥m. Shields, [Seal.]
    “ Abram Flory, [Seal.]
    “ This bond approved in open court, this 3d day of April, a. d. 1871. W. IT. Shircliee, Probate Judge.”
    The demurrers of Flory and Shields to the petition were sustained,,and final judgment rendered in their favor, leaving the case to stand as to Bell in the common pleas. He is not a party to this proceeding in error.
    
      I. Buchingham, for plaintiff in error:
    I. We insist that when Bell was appointed in 1856 he became guardian in respect of all the disabilities his ward was subject to, unsoundness of mind and infancy, and continued guardian as long as either disability continued, unless terminated by death, resignation, or removal. The object of his appointment was that under the direction of the court he might take care of the person and property of his ward, and the office or duty should continue as long as the necessity should exist. Morally the duty would continue, and it would be very technical if, in law, also, it would not continue.
    II. The probate court, in 1871, had the jurisdiction and power to determine whether Bell was still the guardian of Caroline Cooper as a person of unsound mind; that court did tben decide that he was still her guardian, and Bell and his sureties acquiesced in the decision; unsoundness of mind was then her only disability. ' It will be presumed that the court had the proper evidence and found all the facts necessary to sustain its action, and its action cannot be impeached in this way. Shroyer v. Richmond, 16 Ohio St. 455, 465.
    III. In case the court is of opinion that Bell had ceased to be the'guardian of his ward, as a minor, we still insist that what was done by the probate court in 1871 was tantamount to an appointment of him to be guardian in respect of her unsoundness of mind. The court had jurisdiction to do it; the person was imbecile ; the power of the court to protect the person and property was invoked ; the court acted, and its record declares that he was guardian, and, for one cause named, and other causes, ordered'him to give the bond nowin suit; thereupon he accepted; and the record and the bond both declare he gave the bond as guardian. The matter may be informal, but, certainly, we think the action of the court may fairly be regarded as a new appointment.
    IY. But, if all the foregoing positions are deemed by the court untenable, we say that Bell and his sureties are estopped by the bond to deny that Bell was guardian. Kelley v. State, 25 Ohio St. 566-577; Bigelow on Estoppel, 244, 267, 268, 272; Brown v. United States, 17 How. Pr. 437. The sureties of an officer de facto are not permitted to deny he was such officer. Brandt on Surety, § 445.
    
      J. A. Flory, for defendant in error:
    The probate courts have no powers or jurisdiction except what is conferred upon them by statute. Const, of Ohio, art. 4, § 8. Probate courts as created by statute are of special and limited jurisdiction, and can only do such acts as are specifically prescribed by statute. Davis v. Davis, 11 Ohio St. 391; Gilliland v. Sellers, 2 Ohio St. 223; Walker v. Walker, 4 W. L. Mo. 32; Sheldon v. Newton, 3 Ohio St. 498-500; Shroyer v. Richmond, 16 Ohio St. 416 ; D. & W. R. R. Co. v. Marshall, 11 Ohio St. 497; Maxson v. Sawyer, 20 Ohio, 195, 208. When a court transcends the limits prescribed for it, by law and assumes to act where it has no jurisdiction, its adjudications and acts are utterly void and of no effect either as an estoppel or otherwise. Herman on Estoppel, § 52; Adams v. Jefferies, 12 Ohio, 271, and cases there cited ; Gilliland v. Sellers, 2 Ohio St. 223 ; Walker v. Walker, 4 W. L. Mo. 32; Maxson v. Sawyer, 12 Ohio, 195, 208.
    The bond upon its face shows that the probate court had no authority to require, accept, approve or receive the bond. The conditions of the bond are as follows: “ That, whereas the said Samuel S. Bell has been heretofore appointed guardian of Caroline F. Cooper, heir-at-law and child of Elijah Cooper, deceased, &c.” The bond does not say Bell has been appointed guardian of a lunatic or a minor, but only as guardian of “ Caroline F. Cooper, heir-at-law and child of Elijah Cooper, deceased.” Sureties are only bound by the strict letter of the bond. State v. Medary, 17 Ohio, 565 ; see Myers v. Parker, 6 Ohio St. 503; Hall v. Williamson, 9 Ohio St. 22; State v. Cutting, 2 Ohio St. 2 ; State v. Corey, 16 Ohio St. 19; Carpenter v. Sloan, 20 Ohio, 331, 332; Fosdict v. Green, 27 Ohio St. 498; Smith v. Huesman, 30 Ohio St. 662. It certainly will not be claimed that there ever was any law in force in Ohio authorizing the probate court to require, accept, ■approve or receive any bond in the name of the state of Ohio, ■or any other name of any other person as “guardian of «Caroline F. Cooper, heir-at-law and child of Elijah Cooper, deceased ; ” and therefore the action of the probate court was null and void.
    A person is only guardian until the ward arrives at the age ■of majority. IS. & C. 671, § 5. Which was in this case eighteen years of age. 1 S. & C. 694, § 1; Cambell v. English, Wright, 119 ; Perry v. Bairnand, 11 Ohio, 444; Walker v. Walker, 4 W. L. Mo. 32. The probate court had no power to require a person to give a new or additional bond, ■or to accept, approve or receive any bond in the name of the state of Ohio, or any other name, from such person unless such person was at the time a guardian. 1 S. & C. 672, § 8. The probate court, in requiring, accepting, approving or receiving the bond in suit, acted wholly without jurisdiction, and all its acts were coram non judice, and void. Gilland v. Sellers, 2 Ohio St. 223 ; Herman on Estoppel, § 52; Adams v. Jefferies, 12 Ohio, 271, and cases there cited; Walker v. Walker, 4 W. L. Mo. 32 ; 2 Ohio, 277; 7 Ohio, pt. 1, 239 ; 6 Blackf. 91; 38 Ind. 513 ; 20 Ind. 47 ; 1 Leigh, 485 ; 8 Blackf. 162; 4 Id. 15 ; 1 Ind. 62; 4 S. & M. 538 ; 2 Cal. 251; 34 Miss. 150; 23 Miss. 550 ; 18 Ohio St. 50; 1 Ired. 597; 2 Id. 267.
    There is no estoppel. 18 Ohio St. 42; 18 Id. 247; Bigelow on Estoppel (2 ed.) 283, 437; 3 Phillips on Ev. § 215; 28 Ind. 513 ; Herman on Estoppel, §§ 52, 146, 148, 215 ; 6 Ohio, 367; 23 Miss. 557.
    The amended petition does not aver that the money for which it is attempted to hold these defendants as sureties for Bell, came into Bell’s possession while he was in fact guardian ; but it is averred that this money came into Bell’s hands while he was acting as guardian. In no event can these defendants be held liable for money received by Bell while he was acting as guardian, unless the money was received by him as guardian while he in fact and in law was her guardian. Walker v. Walker, 4 W. L. Mo. 32; Gerber v. Ackley, 19 Am. Rep. 751; People v. Pennock, 60 N. Y. 421.
    The bond having been given after Samuel S. Bell had ceased to be guardian of Cai’oline E. Cooper, the alleged bond is void for want of a consideration. 1 Smith Leading Cas. 224,225.
    The plaintiff brought his action jointly against Bell, Shields and Elory; but no final judgment was taken against Bell in this action in the court of common pleas, and the action is still pending there as to him, so that Bell is not before this court on the petition in error. Bell is a necessary party to the proceedings in error, and this court has no jurisdiction until the case is finally disposed of in the court of common pleas as to Bell, and he is properly made a party to this petition in error. Jones v. Marsh, 30 Ohio St. 20.
   Johnson, J.

It is claimed that said petition does not state facts sufficient to constitute a cause of action against the sureties on said bond: 1st. Because the probate court had no authority to require, receive or accept the same ; 2d. There is no breach alleged; 3d. It is void for want of a consideration; and, 4th. The bond was not delivered. It is further insisted, that as Bell is not a party to this proceeding in error, this court has no jurisdiction.

1. The point is made, that Bell, who is the principal on the bond and a defendant in the original action, is a necessary party in this proceeding in error. Smethers v. Rainey (14 Ohio St.) 287, and Jones v. Marsh (30 Ohio St. 20), hold that all parties to a joint judgment should be parties in error. Here the final judgment was in favor of Flory and Shields, and against plaintiff, and the case stands undisposed of as to Bell on the common pleas’ docket. This is authorized by section 371 of the Code, the action being upon a joint and several cause of action.

All the parties to this final judgment are before this court.

2. The petition alleges a delivery of the bond and its approval by the court, as in all like cases. Hence the claim that there was no delivery of the bond is not well founded.

3. Neither is the claim that there is a want of consideration for the bond, if it is otherwise valid. If the court had the power to take and approve this bond, the consideration is sufficient.

4. The principal, and, indeed, the only question of difficulty in the case, is as to the authority of the court to take this bond.

Bell was appointed guardian, February 4,1856. The statute vested in the probate court exclusive jurisdiction to appoint and remove guardians, to direct and control their conduct, and to settle their accounts. Swan R. S. 1854, 753, a. This power embraced the appointment of guardians for minors (Swran R, S. 1854, p. 444), and idiots and lunatics. S. & C. 847.

In the appointment of guardians for lunatics, all laws relating to guardians for minors and their wards, and pointing out the duties, rights, and liabilities of such guardians and their sureties, in force for the time being, are made applicable to guardians for idiots and lunatics, and their children, so far as the same are’in conformity with the provisions of the act relating to lunatic asylums. S. & 0. 840, § 45.

The law in force for the time being,” when the bond in suit was apjaroved and filed, relating to guardians of minors, was the act of 1858. S. & C. 670. By section 8 full power is given the court over the bonds of guardians on exceptions thereto, and upon its own motion it may require guardians to give additional bonds, whenever the interest of the ward shall demand.

Section 9 provides that “ No bond executed by a guardian' after this act shall take effect” (July 1, 1858), “-shall be void or held invalid on account of any informality in the same, nor am, aoGOwnt of an%y i/i%formali1nj or illegality in the ayypoimlment of such guardiam,/ but such bond shall have the same force and effect as if such appointment had been legally made and such bond executed in proper form.” The bond in suit is subject to the provisions of this section.

The facts admitted by the demurrer are:

1. That in 1856, Bell was duly appointed and qualified as guardian of Caroline E. Cooper, who was then - both an infant and a person of unsound mind, and entered upon the discharge of his duties as such guardian, and so continued to act until his resignation, which was accepted by the court September 16, 1874, and the present plaintiff was appointed his successor as guardian of said Caroline, a lunatic.

2. That at her arrival of age, April 20, 1867, she was still of unsound mind, and without any further action of the court, so far as the record shows, Bell continued as guardian, and in 1867, 1869 and 1871, filed his accounts as such with the court, which were audited and settled; the court in all respects recognizing and treating him as the legal guardian, as well after as before her majority.

3. That in April, 1871, nearly four years after her coming of age, Bell represented to the court that his sureties had removed from the county, and on his application and upon an order of the court requiring it, he and the present defendants executed and delivered the bond in suit, which was on his motion approved and filed, whereupon he was permitted by the court to continue his guardianship until his resignation and the appointment of his successor.

4. October 14, 1874, in pursuance of the order of court, he filed his final account, which was audited and settled November 24, 1874, showing a balance due his ward of $4,126.84, which he was ordered to pay over to plaintiff, but has failed so to doj except a small amount stated.

5. That prior to the giving of the present bond, April 8, 1871, he had received $5,000 or more of his ward’s moneys, and had in liis hands, in fact, said sum of $4,126.84 at the date of his final settlement, which, on demand, he refused to pay over.

We have not been furnished with a copy of the judgment of the court, making the appointment of Bell in 1856, but it is averred that Bell was then appointed guardian of said Caroline F. Cooper, who was then an infant, and (as the plaintiff was informed and believes) a person of unsound mind; and it is averred there was no express adjudication by the court, upon what grounds the appointment was made; that is, whether she was a minor, or of unsound mind, or both.

The court having jurisdiction on either or on both grounds, to make the appointment, its validity cannot be inquired into collaterally, though the record is silent, as to the particular ground upon which the appointment was made. Shroyer v. Richmond, 16 Ohio St. 455. Neither upon this state of facts does the presumption arise, that the appointment was made solely on the ground of infancy.

For over seven years after the ward’s majority, Bell acted as guardian of a lunatic. The court so recognized him as her legal guardian by receiving and settling his accounts, by ordering and approving a new bond and allowing him to continue to act, though the record showed she was over age, by accepting his resignation and appointing his successor as guardian of a lunatic. All this is utterly inconsistent with the presumption that the appointment was made on the ground of infancy alone, but is in harmony with the presumption that the judgment of the court, by which he was appointed,.was either based on the unsoundness of mind, or of that, as well as infancy.

In the absence of an express adjudication of the grounds for this appointment to the contrary, and in view of the fact that, after the ward arrived of age, the court continued for several years to judicially recognize him as the legal guardian, we are authorized to presume that this appointment covered both disabilities, the lunacy as well as the infancy.

This being so, the court was authorized by section 8 of the guardian act to order and approve this bond.

The condition being for the faithful discharge by Bell of his duties as such guardian, as required by law, his sureties are liable thereon for a breach of the condition.

Judgments of the district court cmd of the court of common fleas reversed.  