
    Gorman v. Taylor.
    
      Guardian — Removal—Exclusive jurisdiction of probate court to settle account — Suit in equity on guardian's bond, whether maintainable — Acts of March 2G, 1872, and May 1, 1854.
    1. The removal of a guardian for cause by the probate court is within the meaning of section 1, clause 4, of the act of March 26, 1872 (69 Ohio L. 55), which requires a guardian “at the expiration of his trust fully to account for and pay over to the proper person all of the estate of his ward remaining in his hands.”
    2. The settlement of such account is within the exclusive jurisdiction of the probate court, under section 2 of the probate act. (S. & O. 1212.)
    8. A suit in equity, on a guardian’s bond, to compel an account can not be maintained without a showing that the powers and jurisdiction of the probate court are ineffectual to secure such accounting. Newton, v. Hawmondl 38 Ohio St. 430, approved.
    
      Error to the District Court of Eranklin county.
    The original action was brought in the court of common pleas of Eranklin county by Thomas E. Taylor, guardian of Mary Elizabeth Hoffman, against Synon Eitzgerald and Rose Gorman, on the bond of Eitzgerald, a former guardian of said Mary Elizabeth Hoffman, who had been removed as such guardiau by the order and judgment of the probate court of Eranklin county, and Rose Gorman, his surety thereon. The following is a copy of the original petition :
    “ The plaintiff says that heretofore, to wit, on the 25th day of January, A. D. 1876, the said Mary Elizabeth Hoffman, a minor, over the age of fourteen years, personally appeared before the probate court in and for said 'county of Eranklin, and state aforesaid, and made choice of plaintiff as her guardian, which choice was then and there approved by said court, and the custody of the person and property of the said minor committed to plaintiff, who thereupon on the said 25th day of January, a. d. 1876, took upon himself the burden of said guardianship, and is now such guardian ; and the plaintiff further says that on the 24th day of September, a d. 1870, the defendant, Synon Fitzgerald, was duly appointed guardian of said Mary Elizabeth Hoffman by the aforesaid probate court, and the said Synon Fitzgerald then took upon himself the burden of said guardianship of the person and property of the said Mary Elizabeth Hoffman, said minor, then aged ten years, and that pursuant to the order and approval of said probate court, in that behalf, the said Synon Eitzgerald and Joseph Norris, since deceased, with Rose Gorman, who, with said Synon Eitzgerald, have survived the said Joseph Norris, on the 24th day of September, A. D. 1870, by their certain written obligations, sealed with their seals, a copy of which is hereto attached, marked “ A,” and made a part of this petition, acknowledged themselves to be held and firmly bound to the state of Ohio in the penal sum of one thousand dollars, to be paid to the state of Ohio, when they should be thereunto afterward required, which said written obligation was and is subject to a certain condition, in substance and the effect following; that if the above named Synon Fitzgerald should faithfully discharge his duties as guardian of the person and estate of the said Mary Elizabeth Hoffman, and faithfully discharge the trust reposed in him as such guardian to said minor, and should also render an accurate statement of his transactions, with a just account of the money received by him from the estate of his said ward, and should deliver up the same to said court at such time as they should require, then the said obligation to be void, otherwise to remain in full force and virtue.
    “And the said plaintiff further says that after the granting of said guardianship to said Synon Fitzgerald, as aforesaid, and the execution of said bond, as aforesaid, the following sums of money came into the hands of said Synon Fitzgerald, as such guardian, to wit:
    “Four hundred and six and 13-100 dollars on the 31st day of October, a. d. 1873.
    Thirty dollars on the 4th day of December, a. d. 1873.
    Thirty dollars on the 5th day of March, a. d. 1874.
    Thirty dollars on the 5th day of June, a. d. 1874.
    Thirty dollars on the 5th day of September, a. d. 1874.
    Thirty dollars on the 5th day of December, a. d. 1874.
    Thirty dollars on the 5th day of March, a. d. 1875.
    Thirty dollars on the 5th day of June, A. d. 1875.
    Thirty dollars on the 6th day of September, a. d. 1875.
    Thirty dollars on the 6th day of December, a. d. 1875.
    “Making a total sum of six hundred and seventy-six dollars and thirteen cents, received by said Synon Fitzgerald as guardian of the estate of his said ward from the estate of his said ward; and the said plaintiff further says that the said Synon Fitzgerald did not faithfully discharge the trust reposed in him as guardian of said minor, but wholly converted and disposed of to his own use the said money which came to his hands as aforesaid, and on the 14th day of February, a. d. 1874, the said probate court discharged the said Synon Fitzgerald, as guardian as aforesaid of Mary Elizabeth Hoffman. The plaintiff further says that the said Synon Fitzgerald has wholly neglected and refused to pay to the said probate court, or to plaintiff, the said sum of money or any part thereof, although often requested so to do, and has wholly neglected and refused to settle his accounts of his guardianship of his said ward with the said probate court, as required by law, or to take any steps toward discharing the duties of his said trust, by law imposed upon him.
    “ "Wherefore plaintiff asks judgment against said Synon Fitzgerald and said Rose Gorman, in the. sum of one thousand dollars.”
    By T. E. Taylor, Attorney for Plaintiff.”
    
    To this petition Rose Gorman filed a demurrer on the ground that it did not state sufficient facts to constitute a cause of action. This demurrer was overruled. Issues of fact were then joined and final judgment was rendered in favor of defendants. On petition in error the district court reversed the judgment. The plaintiff iu error now seeks to reverse the judgment of reversal.
    J. T. Holmes and W. B. Page, for plaintiff in error.
    
      Stacy Taylor and D. C. Jones, for defendants in error.
   McIlvaine, C. J.

The trust of a guardian expires at the date of his removal from office by the probate court, within the meaning of section 1, clause 4 of the act of March 1, 1872 (69 Ohio L. 55), which provides that a guardian shall, “ at the expiration of his trust, fully account for arid pay over to the proper person all of the estate of his ward remaining in his hands.” Over such accounting the probate court has exclusive jurisdiction. A right of action, at law, first accrues on the guardian’s bond to recover the amount remaining iu his hands when the amount is ascertained by the probate court on the settlement of the guardian’s final accouut. Newton v. Hammond, 88 Ohio St. 430.

This doctrine was laid down in a case where the amount in the hands of the guardian was first ascertained and determined by settlement in the probate court, and so applied, was undoubtedly correct, although it may be that an action at law may be maintained on the bond where the parties have agreed upon the amount, and no accounting is necessary to fix the exact amount of the recovery. Such action at law is not for an account, but for the recovery of money only, and either party thereto is entitled to a trial by jury.

An action, however, may be prosecuted in equity on the bond for an account, in case the jurisdiction of the probate court is ineffectual for that purpose. (Ibid.) But in such case the ground of equitable jurisdiction must be set forth in the petition ; otherwise it will be assumed that they do not exist, and the accounting will be left to the “ exclusive jurisdiction” of the probate court.

The case before us was undoubtedly brought for the purpose of compelling an accouut and for judgment on the sum so found to be in the hands of the former guardian; but no reason is shown why the accounting should not be had in the probate court. It is averred that the principal in the bond received moneys belonging to his ward which he converted to his own use; that he has neglected and refused to pay the same over to the plaintiff, who has been appointed his successor, though often requested so to do, and that he has failed to render any account as required by law. The probate court on its own motion or-upon complaint, by citation might, for aught that appears, have compelled an account, but no effort has been made to procure such settlement. The jurisdiction of that court has not been invoked, and no reason assigned for failing to do so.

For the reasons stated, we think the demurrer to the original petition should have been sustained, and that no error appears on the record for which the judgment of the court of common pleas should have been reversed by the district court.

Judgment of the district court reversed,, and that of the common fleas affirmed.  