
    Roberts, Ex’r., et al. v. Roberts Jr., et al.
    
      Petition in error — • By averment of unnecessary extrinsic facts is not changed to petition in equity, when — Relation of such averment to record —: Pleadings — Guardian may not waiz'e issue of summons to minor, when — Void or erroneous judgment conveying land to minor — May be reversed at his majority— Must reconvey before accepting other property instead — Rights of infancy.
    
    1. ' It is proper to aver such extrinsic facts in a petition in error as will show that the plaintiff in error has succeeded to rights under the judgment or has reached the age of majority; and as to such extrinsic facts the petition in error should be verified. The averment of extrinsic facts beyond what is necessary will not have the effect to change a petition in error to a petition in equity. Irrelevant extrinsic facts should be stricken from a petition in error on motion, but the refusal to strike out such irrelevant facts is not reverisble error, unless such facts would be prejudicial upon a hearing upon the merits of the petition in error.
    2. Nothing can be added to or taken from a record by averment in a petition in error, and extrinsic facts pleaded in such a petition do not form any part of the record sought to be reversed, but only serve to show that the plaintiff in error has a right to prosecute error upon such record.
    3. A guardian of a minor has no authority to waive the issuing and service of summons on his ward in an action affecting the ward’s rights, nor to dispense with the appointment of a guardian ad litem, unless authorized so to do by statute; and a judgment against a minor in an action wherein he did not have his day in court, may be reversed upon petition in error filed by him within the statutory time after reaching the age of majority. Such judgment, though void in legal effect, may ■ be a cloud upon his title or rights, and he has the right to remove such cloud by a reversal of the judgment.
    4. In such petition in error it is sufficient if all the parties in interest in the judgment sought to be reversed are made parties. When nothing is claimed for or against a party in the pleadings, and nothing is adjudged for or against him in the judgment, it is not error to omit such party from proceedings in error.
    5. Where lands have been conveyed to a minor by order of a void or erroneous judgment, he may, upon arriving at the age of majority, cause such judgment to be reversed without first offering to reconvey the lands. But he must tender reconveyance before recovering the property in lieu of which the lands were conveyed to him.
    (Decided October 31, 1899.)
    Error to the Circuit Court of Crawford county.
    John Roberts died in the month of September, 1885, leaving a will as follows:
    “1. I give, devise and bequeath to my beloved wife, Isabel Roberts, all my household goods and furniture, and the homestead property where I now reside, containing about fourteen acres, also an annual income of three hundred dollars a year, to be paid, one-half April 1, and one-half October 1, of each year. Should my said wife desire it, said homestead property may be sold and conveyed by my executor, and two thousand dollars of the proceeds invested in real estate in the village of Bucyrus, for a homestead for my said wife, these legacies to my said wife shall remain and continue during her life, if she so long remain my widow and unmarried, at her decease, or at her remarriage, if she marry again, I give, devise and bequeath said fourteen acre tract, or in case that be sold, the property to be bought in the town of Bucyrus out of the proceeds, to my son John Roberts Jr., in fee.
    2. I give, devise and bequeath to my daughter Mary Jane Cobb, the house and lot in Bucyrus where she now resides. I order and direct my executor to build a summer kitchen on the west side of her house, of suitable size and reasonable expense, and to pay the taxes on said house and lot for the first year after my decease, this legacy to my said daughter is for and during her life, on condition that she does not allow or permit James Cobb, her husband, to reside upon the property or stay there. Upon the death of my said daughter, or in case she disregards the above conditions upon which said property is devised to her, I give, devise and bequeath said property to her children in fee.
    3. I give, devise and bequeath to my great grandson, John Fleming Roberts, the sum of eight hundred dollars, and order and direct that the same be invested in real estate in his name and authorize and empower his mother, Virginia Roberts, to make the investment for him.
    4. I order and direct that the time of payment of the amount owing to me by my son, Wesley Roberts, be extended for the term of eight years from this date on the principal sum of said indebtedness, he to be required to pay interest in accordance with the terms and condition of the loans.
    ! 5. All the residue of my property not herein otherwise disposed of, I order and direct to be invested at interest to the best advantage for my estate, and out of the income of the funds, as well as the interest on the funds mentioned in clause four of this will, the said cash payments to my wife as well as all other liabilities and expenses to be paid.
    And when my said son, John Roberts Jr., arrive at the age of twenty years, eight thousand dollars of said invested funds with the accumulated interest thereon, shall be invested in a farm for my said son, John Roberts Jr., the title of which shall be put in his name in fee.
    I charge the maintenance, support and education of my said son John, until he arrives at the age of twenty years, upon my said wife, and upon the property devised to her in this will, and order and direct that he be kept at school at Bucyrus until he becomes twenty years of age.
    
      In case the amount so devised to my said wife shall be insufficient for themaintainance and support of my said wife and my said son John, I authorize my executors to increase the annual allowance to her not exceeding one hundred dollars a year. If my said daughter, Mary Jane Cobb, shall come to want, I order and direct that my executor out of my estate assist her.
    6. All the residue of my property of every description not herein otherwise disposed of, I give, devise and bequeath to my sons Wesley Roberts, George Roberts and Edwin Roberts, to each an equal share.
    7. I nominate and appoint my son, George Roberts, executor of this, my last will and testament, and do hereby revoke all former wills by me made, in witness whereof I hereunto set my hand seal this twenty-fourth day of August, A. D., 1885.”
    The will was duly admitted to probate, and George Roberts duly appointed and qualified as executor.
    On the 20th day of February, 1888, said executor filed the following petition, duly verified:
    “In the Probate Court, Crawford County, Ohio.
    George Roberts, Executor of the Last Will andTestament of John Roberts, Deceased, Plaintiff, v. Isabel Roberts, Wesley Roberts, Mary Jane Cobb, Edwin Roberts, John Roberts Jr., James H. Malcolm, Guardian of Said John Roberts Jr., and John Fleming Roberts, Defendants.} PETITION.
    
    
      The said George Roberts, who has been duly appointed and qualified as executor of the last will and testament of said John Roberts, deceased, by said court, respectfully represents: That the said John Roberts died on or about the-day of September, 1885, seized in fee of a homestead property containing about fourteen acres in Holmes township, a house and lot in the city of Bucyrus, and choses in action which, on November 7, 1885, was inventoried by the appraisers of his estate at $12,256.57, of which the sum of $2,146.21 is considered nearly or quite uncollectable. That said Isabel Roberts is the widow of said John Roberts, deceased, that said Wesley Roberts, George Roberts, Mary Jane Cobb, Edwin Roberts and John Roberts Jr., are his children, and said John Fleming Roberts is his great grandchild. That by the provisions of his will the testator devises to said Isabel Roberts during widowhood the said homestead property and an annuity of three hundred dollars a year, with authority on the part ,of the executor to increase the annual allowance not exceeding one hundred dollars a year if the annuity shall be insufficient, and if she desires it to sell the homestead and have two thousand dollars of the proceeds invested in a homestead in the village of Bucyrus for her. To said Mary Jane Cobb the said house and lot in Bucyrus with a charge upon his estate to add a summer kitchen to the dwelling house thereon, and aid in case she come to want. To said- John Fleming Roberts the sum of eight hundred dollars, to be invested in said real estate for him.
    To said John Roberts Jr., when he arrives at the age of twenty years, the sum of eight thousand dollars and certain accruing interest to be invested in a farm for him, and the remainder of said homestead after termination said Isabel Roberts’ rights thereto. In the said inventoried assets of said estate there is included the sum of seven thousand four hundred and seventy-nine dollars and sixteen cents owing to the testator by said Wesley Roberts. The said will provides that the time of payment of the amount owing to the testator by said Wesley Roberts be extended for the term of eight years from the date of the will or the principal sum of said indebtedness, the interest to be paid in accordance with the terms and conditions of the loan. The said will directs that all the residue of testator’s property not therein otherwise disposed of be invested at interest to the best advantage for the estate, and that out of the income of the fund as well as the interest payable by said Wesley Roberts, the cash payments to said Isabel Roberts as well as all other liabilities and expenses to be paid. The said Wesley Roberts, George Roberts and Edwin Roberts are made the residuary legatees of the testator’s estate by said will. The dwelling hoúse on said homestead property has been recently destroyed by fire, greatly reducing the provisions made for the support of said Isabel Roberts and John Roberts Jr. It is the opinion of the executor that there is scarcely property of the estate sufficient to carry out the provisions of said will. That for the purpose of expediting the settlement of the estate of the testator, promoting the interest of the legatees and enabling them to obtain the immediate benefit of their legacies without delay or future risk, the said Wesley Roberts, George Roberts, executor, Isabel Roberts and James H. Malcolm, guardian of said John Roberts Jr., have entered into an agreement in writing relative to the adjustment of the legacies of the testator, a copy of which is hereto annexed marked Exhibit A., and made part of this application. And all the heirs at law and legatees of said testator consenting thereto, the plaintiff prays that the court ratify and confirm said agreement and order that the said James H. Malcolm, as guardian of said John Roberts Jr., proceed to carry into effect the provisions of said agreement on behalf of said John Roberts Jr., and order that said agreement be ratified and confirmed.
    
      Exhibit A. It is hereby agreed by and between .Isabel Roberts, widow of John Roberts, deceased, James H. Malcolm, guardian of John Roberts Jr., a minor, George Roberts, executor of the last will and testament of John Roberts, and Wesley Roberts, as follows: “The said Wesley Roberts agrees to execute and deliver to said Isabel Roberts and John Roberts Jr., a good and sufficient warrantee deed for the west half of the southwest quarter, and northeast quarter of the southwest quarter of section one in township four, south of range sixteen, in Crawford county, Ohio, the same to be conveyed, held and owned by said Isabel Roberts until the said John Roberts Jr., arrives to the age of twenty years, and shall then pass to and vest in fee simple in the said John Roberts Jr. The said George Roberts, as executor as aforesaid, agrees to release and relinquish to said Wesley Roberts the debt and liabilities of said Wesley Roberts to the estate of said deceased, as shown by the inventory and appraisement of the personal property of said estate. The said Isabel Roberts agrees to relinquish to said executor and to said estate all her title and claim to annuities, maintenance and assistance from said executor and said estate, except the sum of six hundred dollars, which is to be paid on or before-.
    
      The said James H. Malcolm, guardian as aforesaid, releases said executors and said estate from the eight thousand dollar legacy by said will directed to be invested in a farm for the use and in the name of said John Roberts Jr., and from all claims on said estate or said executor for assistance and support for said John Roberts Jr.
    This contract to go into effect and be binding on all parties thereto on condition that all the legatees of said will and parties in interest consent thereto, and to the modifications it makes of said will, and on conditions that the probate court of Crawford county, Ohio, ratify and confirm the same, September 28, 1887.
    Wesley Roberts,
    Geo. Roberts, Executor,
    Isabel Roberts,
    James H. Malcolm, Guardian.
    
      ( WAIVERS ON PETITION. V We hereby consent to the terms of the within agreement. M. J. Cobb.' We hereby waive the issue and service of notice, enter our appearance herein, and consent that the court make the order prayed for. Isabel Roberts, Wesley Roberts, Mary J. Cobb, James H. Malcolm, Guardian of John Roberts Jr.”
    
      On the same day the following decree was rendered in the case in the probate court:
    “This day came the said George Roberts, executor of the last will and testament of John Roberts, deceased, plaintiff, and also the defendants, Isabel Roberts, Wesley Roberts, Mary J. Cobb and James H. Malcolm, guardian of John Roberts Jr., and signify their consent to the provisions of the contract, a copy of which is annexed to the petition marked Exhibit A., and their readiness to carry out the stipulations of the same, the court having examined said contract and heard the proofs and allegations of the parties do find that the provisions of said contract are fair and reasonable and conducive to the interests of all the parties, and especially to the interests of said John Roberts Jr., and to the interests of the estate of said John Roberts, deceased, do ratify and confirm the said contract and authorize and empower the said George Roberts, executor of the last will and testament of said John Roberts, deceased, and the said James H. Malcolm, guardian of the said John Roberts Jr., to carry out the provisions of said contract and execute and deliver all such instruments of writing as may be necessai*y and proper for that purpose.”
    On the 25th day of February, 1895, being six months after John Roberts Jr., reached the age of twenty-one years, he filed the following petition, duly verified, making the will of John Roberts, deceased, Exhibit A.:
    
      “In Court Common Pleas, Crawford County, Ohio.
    John Eoberts Jr., Plaintiff, \ v. j George Eoberts, Executor I of the Last Will and Test- / ament of John Eoberts, I Deceased, Isabel Eoberts, \ Wesley Eoberts, Mary Jane Í Cobb, Edwin Eoberts, and \ James H. Malcolm, Guard- \ tan of John Egberts Jr., Defendants. / petition in error.
    The said plaintiff says: That in the month of September, A. D., 1885, John Eoberts departed this life at the county of Crawford and State of Ohio, that he died testate, and his will was duly admitted to probate and recorded in the probate court of said county, a copy of said will is hereto attached marked “Exhibit A,” and made a part hereof.
    Plaintiff further says that he was then a minor and said James H. Malcolm was appointed by said probate court as his guardian, said appointment being made on the 28th day of September, A. D., 1887.
    Plaintiff further says that on the 7th day of November, A. D., 1885, said executor filed and swore to an inventory of the personal property of said estate, which showed $95.00 household goods, which were taken by said Isabel Eoberts, widow of the testator under the statute and provisions of said will.
    Said inventory showed all the remainder of the personal property of said testator to consist of interest bearing promissory notes amounting to $12,-256.57. Among said securities as shown by said inventory was a promissory note secured by mortgage against said Wesley Roberts in favor of said testator for $5,382.00, dated April 3, 1880, and due April 3, 1881, with eight per cent, interest per annum, that partial payments of interest had been made upon said promissory nóte to the testator, so that at the date of said inventory there was due upon said promissory note the sum of $7,040.99, which amount was found collectable by the appraisers and so certified by them in said inventory.
    Plaintiff further says that the estate was not in debt beyond a few small unpaid bills amounting in the aggregate to $26.72, and the funeral expenses, including cemetery lot, amounted to $263.70. The personal assets of said estate were good and ample to carry out the provisions of said will, and give to this plaintiff in full his legacy therein provided.
    Plaintiff further says that by the terms of said will said executor was required to keep the said securities and the funds of said estate at interest, and when this plaintiff should arrive at the age of twenty years, to invest $8,000.00 of said invested funds with the accumulated interest thereon, in a farm for this plaintiff, the title of which should be put in him in fee simple.
    This plaintiff says he arrived at the age of twenty years on the 29th day of October, A. D., 1893, and at that time said executor did not invest $8,000.00 and interest or any part of said funds in a farm for this plaintiff.
    On the 29th day of October, 1894, the plaintiff arrived at the age of twenty-one years, he, through his attorneys, made written demand of said executor for his legacy under said will, but said executor neglected and refused, and still neglects and refuses to discharge his said duty to give plaintiff his said legacy or equivalent.
    This plaintiff is informed and believes, and on such information and belief alleges: That said George Roberts, as executor of the last will and testament of said John Roberts, deceased, in order to avoid his duties toward this plaintiff under said will, and to modify and change the will itself, procured an order to be made on the 20th day of January, A. D., 1888, purporting to authorize said Wesley Roberts, mortgage debtor of said estate, to execute a deed of certain real estate to Isabel Roberts, plaintiff’s mother, until plaintiff should arrive at twenty years of age, with remainder to plaintiff in fee simple, and discharge said Wesley Roberts from his said mortgage debt amounting at that date to $7,479.16, and thereby extinguish all other claims of plaintiff to said legacy.
    Said order was made in a proceeding instituted by said executor in said probate court, wherein said George Roberts, executor of the last will and testament of John Roberts, deceased, was plaintiff, and Isabel Roberts, Wesley Roberts, Mary Jane Cobb, Edwin Roberts, John Roberts Jr., James H. Malcolm, guardian of John Roberts Jr., and John Fleming Roberts were defendants.
    A certified copy of said order and the record of the proceedings whereon the same was founded is hereto attached and marked “Exhibit B,” and made part hereof.
    Plaintiff having recently and within the past six months arrived at the age of twenty-one years, institutes these proceedings for the reversal of said order, and says: that in the record and proceedings aforesaid is manifest error in this, to-wit:
    
      1. This plaintiff was not made a party to said action, no summons having been issued against him, and no process was served on him.
    2. The said James H. Malcolm, as guardian of this plaintiff, had no authority in law or in fact to waive summons in said cause, or to enter the appearance of this plaintiff therein, or to consent to the order prayed for in said executor’s petition.
    3. The said James H. Malcolm, 'as guardian, had no authority in law or in fact to enter into said agreement in behalf of this plaintiff. .
    4. No answer or defense in said action was made by guardian ad litem, in behalf of this plaintiff or by any one, and no guardian ad litem was appointed for plaintiff.
    5. Said contract, marked “Exhibit A,” in said record on its face required the consent of “all the legatees of said will and the parties in interest to consent thereto, and to the modifications it makes of said will,” whereas all the said legatees and parties did not sign said agreement, to-wit, the same was not signed by said legatee, John Fleming Roberts.
    6. Said John Fleming Roberts was a necessary defendant in said action, but was neither summoned or entered his appearance therein.
    7. The probate court had no jurisdiction to malee said order or approve said contract, nor exonerate said executor from liability for said $8,000.00 legacy prior to the time plaintiff was twenty years of age.
    This plaintiff further says there is error in said order and proceedings not apparent upon the record in this, to-wit:
    8. Said Wesley Roberts, on the 20th day of January, A. D., 1888, executed a deed for the following described real estate situated in the county of Crawford aforesaid, to-wit: The west half of the southwest quarter, and the northeast quarter of the southwest quarter, section 1, township 4, range 16, containing 120 acres in said county. The granting clause of said deed is “that the said Isabel Roberts to have and to hold the premises until October 29, 1893, when the said John Roberts Jr., will arrive at the age of twenty years, and then the full fee simple title shall pass to and vest in the said John Roberts Jr.,” and said executor, in consideration thereof, proceeded to apparently release said Wesley Roberts from his said mortgage debt. Said land was on said 29th day of October, A. D., 1893, worth not to exceed $3,600.00, and could not under said will satisfy plaintiff’s legacy of $8,000.00 and accruing interest thereon.
    9. Said land on the 29th day of October, A. D., 1894, on plaintiff’s arrival at age was not worth, nor is the same now worth to exceed $3,600.00.
    10. Said land was sold for taxes prior to the 29th day of October, A. D., 1893, and other parties are now in possession thereof under said tax title.
    11. Said deed for said land was never delivered to or accepted by this plaintiff, nor has he since he arrived at the age of 21 years, ratified said agreement of said executor and guardian, the said order of court, or “the modifications it makes of said will.”
    Wherefore, this plaintiff prays that for the errors aforesaid the said order and proceedings of said probate court may be set aside, reversed and held for naught, and that he may be restored to all the rights he may have lost thereby.”
    James H. Malcolm, defendant, filed a motion to compel plaintiff, John Roberts Jr., to amend his petition by striking therefrom as irrelevant and redundant, the averments as to the facts not appearing in the record of the probate court, being an enumeration of eleven items asked to be stricken out. This motion was overruled and exception taken.
    George Roberts, executor, demurred to the petition on the ground that the court of common pleas had no jurisdiction of the subject of said cause of action, that there was a defect of parties plaintiff and defendant, that several causes of action were improperly joined, that separate causes of action against several defendants were improperly joined, and that the petition does not state facts sufficient to constitute a cause of action. This demurrer was overruled and exceptions taken.
    James H. Malcolm, guardian, filed a like demurrer and it met a like fate, to which he excepted.
    Thereupon the executor and guardian filed separate answers in which the age of the plaintiff, the making of the will and the conveyance of the lands to plaintiff are conceded, but the averment in the petition in error that plaintiff had not ratified said agreement and order is denied, and issue is taken with the other averments of the extrinsic facts set up in plaintiff’s petition. New matter is also set up as an answer, treating the petition as one in equity.
    The plaintiff took issue in his reply with the new matter set up in the answers.
    Afterward the executor filed an amendment to his answer, in which he averred that the debts and legacies of equal priority of the testator, John Roberts, were largely in excess of the assets of his estate and could not all be paid, that said contract was made in good faith and was proper to be made subject to the approval of the probate court. He further set up the making of the deed, the release of the mortgage, and all that was done in pursuance of the said contract and decree of the probate court, and asked that in case the decree of the probate court should be reversed, that all parties should be restored to what they had before that decree was made, and that the estate of the testator should then be administered under his will. The guardian filed a like answer.
    The plaintiff in his reply took issue with these averments to the answers, and denied that the court had jurisdiction for want of proper parties to make the order prayed for.
    A motion was also made by defendants to have one, John A. Schaber, the successor of James H. Malcolm in said guardianship, made a party defend, ant, for the reason that while he was such guardian with sufficient money of his ward in his hands, he allowed said lands to be sold at delinquent tax sale, and purchased the same himself, and took a tax deed therefor in his own name, and still holds the same. This motion was supported by an affidavit, but the motion was overruled and exceptions taken.
    The cause was heard at the April term, 1897, upon the petition in error, the transcript and the evidence, and was argued by counsel, on consideration whereof the court of common pleas found that there was no error apparent upon the record, that said plaintiff was not entitled to the relief prayed for in his said petition, and therefore affirmed the judgment of the probate court. The plaintiff filed a motion for a new trial, which was overruled and exceptions taken.
    Upon petition in error by John Roberts Jr., the circuit court reversed the judgment of the common pleas for the following reason: “This cause being a proceeding in equity in said court and not alone in error, the judgment and finding of said court is not responsive to the issue joined in the case, and is against the weight of the evidence, and said court of common pleas erred in overruling the motion of the plaintiff in error herein for a new trial.” Upon reversing the judgment the circuit court sustained the motion of John Roberts Jr., for a new trial, and granted him such new trial. He excepted to so much of the decision as held that his petition was not one in error alone.
    Thereupon George Roberts, executor, and James H. Malcolm, guardian, filed their petition in error in this court, seeking to reverse the judgment of the circuit court; and John Roberts Jr., filed his cross-petition in error, alleging that the circuit court erred in not reversing also the judgment of the probate court.
    
      Franklin Adams; Beer, Bennett & Monnett and Finley & Ballinger, for plaintiffs in error.
    
      Harris & Sears, for defendants in error.
    Carefully prepared briefs were submitted by counsel on each side, but as they are devoted mainly to the discussion of questions in the case which the court thought unnecessary to consider they are omitted from this report. — Reporter.
   Burket, J.

Nearly the whole controversy in this case turns upon the question as to whether the petition of the plaintiff below was a petition in error or in equity.

As we view the matter it was a petition in error. The probate court had made an order upon which the executor and guardian acted to the prejudice of John Roberts Jr., while he was an infant, and under section 6723, Revised Statutes, as it then stood, lie had a right within six months after becoming of full age, to file a petition in error in the court of common pleas to reverse that order; and in such petition it was proper to aver and set out such extrinsic facts as would show his age, and his relation to the order or judgment of which he complained, and such facts would not change his petition in error to one in equity. It often occurs in a proceeding in error that extrinsic facts must be pleaded in order to show a right in the plaintiff in error to have the judgment reversed. When a party to a judgment dies, and his heirs, executors or administrators desire to prosecute error, there must be an averment of the extrinsic facts occurring after the rendition of the judgment, in order to give the plaintiff in error a standing in court. In such cases the petition in error must be properly verified as to such extrinsic facts. Hanover v. Sperry, 35 Ohio St., 244. If issue is taken as to such material extrinsic facts they must be established by proper evidence on the hearing, but such facts do not become a part of the record sought to be reversed, because nothing may be added to or taken from the record by averment in the petition in error. Such extrinsic facts only serve to show that the plaintiff in error has a right to prosecute error upon such record.

If more extrinsic facts are pleaded than are necessary they usually do no harm, as they are immaterial upon the hearing of the petition in error upon its merits. A motion to strike out such immaterial averments of fact should be sustained, but it is not usually error to overrule such motion. In the case at bar there is a recital of the history of the estate in the petition in error, which adds nothing to the legal force of the petition, and should have been stricken out. The eighth assignment of error was proper for the reason that it shows that the executor and guardian acted under the order of the probate court, and that, therefore, the order was to his prejudice; but what is said as to the value of the lands in this item, and in the ninth item of the petition in error, is irrelevant and should have been stricken out. The same is true of the tenth item. But the refusal of the court to strike out said irrelevant matter was not prejudicial error, because they could not prejudice the hearing on the merits. The real question, after all, was, did the probate court err to the prejudice of John Roberts Jr., in making the order complained of? This question could be answered and determined by a court as well with these irrelevant facts in the petition as with them out of it.

The petition against John Roberts Jr., and others, was filed in the probate court on the 20th day of February, 1888. No summons was served upon him. No guardian ad litem was appointed, and he was not in any manner brought into court; and yet on the same day an order having the force of a judgment, was rendered against him, and thereby he was prevented from obtaining his legacy in the manner and form, and at the time as provided in his father’s will. It is said now that owing to the insolvency of Wesley Roberts, and the lack of assets of the testator’s estate, John Roberts Jr., received as much or more under this order of the probate court as he would have received under his father’s will if administered according to law. But this, if true, would not deprive him of his rights to take that which his father bequeathed to him. He could not be deprived of that right against his will without his day in court. He had no day in court, and, therefore, the order against him was erroneous. That it was also prejudicial is clear, because it deprived him of a valuable right against his will, a right which he may prize very highly, even though in the end it may turn out to be of less value than the farm which was conveyed to him under the order of the probate court.

The bequest to him was several, and the order affected that bequest, and he, .therefore, had a right to reverse it by petition in error against the same parties who were parties in interest to the proceeding in which the order was made. He need not bring in new parties who were not parties to the action, unless they have succeeded to the rights of such parties upon the record, or by operation of law.

There was, therefore, no error in overruling the motion to make Schaber a party defendant. Neither was there any error in overruling the demurrers, as there was no defect as to parties plaintiff or defendant, and no misjoinder of actions, there being but one action, the petition in error. The court had full jurisdiction of the subject matter, and the petition stated a good cause of action in error. That was all that was claimed for it, and all that was prayed for. There was no occasion for resorting to a petition in equity, because he had a plain and adequate remedy at law by petition in error.

As to the matter of defects of parties defendant, it is particularly urged that John Fleming Roberts and Edwin Roberts wére parties defendant in the proceedings in the probate court, and that John Fleming Roberts was not made a party, and Edwin Roberts was not served with summons, in the proceedings in error by John Roberts Jr., and that, therefore, there is a fatal defect of parties defendant.

It will be noticed as a matter of importance, that while the petition in the probate court contains the names of John Fleming Roberts and Edwin Roberts, it asks no relief for or against them, and that the court made no order for or against them in the order complained of. A contract to which John Fleming Roberts and Edwin Roberts are not parties, is attached as “Exhibit A,” and the prayer of the petition is that the probate court ratify and confirm said agreement, and order said James H. Malcolm, guardian of John Roberts Jr., to proceed to carry into effect the provisions of said agreement on behalf of John Roberts Jr. The order of the probate court granted the prayer of the petition, and authorized the executor and guardian to carry out the provisions of the contract. But no order was made as to John Fleming Roberts or Edwin Roberts, and their names do not appear in the contract, nor in the order of the probate court, and no attempt is made to affect their rights in any manner. The order is not a judgment for them or against them, and therefore they were not necessary parties to the petition in error filed by John Roberts Jr.

The object of the petition in error was, to clear away the cloud upon the right of John Roberts Jr., to receive his bequest under his father’s will, by reversing the order by means of which that cloud was cast upon his rights, so that, having cleared away that cloud, he might proceed according to law to recover his legacy without being hampered by that order of the probate court.

With that order standing as a valid order unreversed, it might be difficult to obtain his legacy under the will, as it would be urged that he should be bound by the order, as he failed to file a petition to reverse it within six months after reaching his ^majority.

It is urged that if he had no day in court he was not a party to the record, and has no right to prosecute error, that the order as to him is void, and that he cannot prosecute error to reverse a void judgment. He is a party named in the petition and record and in the order against him. His rights are attempted to be affected by the order, and on the face of the record it does affect them. The executor and guardian acted under it to his prejudice, claiming it to be valid. He has a right to reverse it and thereby show its invalidity.

Even if the order is void as against him, he has a right to prosecute error to reverse it. He has a right to reverse a void judgment in order to clear away the cloud cast thereby upon his rights or property. Clay v. Edgerton, 19 Ohio St., 555.

The question as to placing the parties in statu quo cannot arise in this proceeding in error. After the illegal order of the probate court shall be reversed, and the cloud upon the rights of John Roberts Jr., removed, and when he shall attempt to obtain his legacy under the will, the rights of the several parties will be protected, and such orders made as will secure to each his full rights. The first step toward repudiating the illegal acts of the executor and guardian is to reverse this illegal order of the probate court, and then before he can obtain his legacy under the will, he must in a proper manner restore the lands. He cannot disaffirm the proceedings of the probate court, executor and guardian, and at the same time affirm them by holding on to the lands conveyed to him by virtue of these proceedings. He must be consistent throughout.

The circuit court reversed the judgment of the court of common pleas upon two grounds, one being that the judgment was against the weight of the evidence, in which we fully concur, and the other that the cause was one in equity and not alone in error, and the judgment was not responsive to the issues joined in the case. In this the circuit court was wrong, but its judgment of reversal was right, because there is manifest error in the record of the probate court to the prejudice of John Roberts Jr., as already shown in this opinion, and the court of common pleas should have reversed that order, unless it found from the weight of the evidence that he had, after reaching his majority, ratified the •order and proceedings so had in the probate court. He avers in his petition that he did not ratify said agreement or order, and this averment is denied in the general denial of the answers, and this was the only material issue in the case for trial, all the other necessary extrinsic facts being conceded in the pleadings.

The question of ratification not being conceded in the pleadings or evidence, this court cannot proceed to render such judgment as the court of common pleas should have rendered, even though the circuit court found that the judgment of the common pleas was against the weight of the evidence.

The judgment of the circuit court will therefore be affirmed, and the cause will be remanded to the court of common pleas for trial upon the single question as to whether there was or was not a ratification of said judgment and order by John Roberts Jr., after he became of the age of majority, and having ascertained that fact, reverse or affirm the order and judgment of the probate court in accordance with this opinion.

Judgment affirmed and cause remanded to the court of common pleas for trial upon the question as to ratification.  