
    Banning, as Executor of Thompson, v. Gotshall, as Administrator of Campbell.
    
      Action between executors or administrators of different estates — Predecessor of one of the parti-es — Not an incompetent witness, when — Section 5241, Rev. Stat., construed — Death of intestate legatee — Legacy should be paid to personal representative, when — Section 6279, Rev. Stat.- — Foreign guardian of foreign ward — Payment by executor to wrong party not a bar to subsequent action, when.
    
    1. In an action between executors or administrators of different estates, a person who has been the predecessor of one of the parties is not, on that account, incompetent as a witness against the-adverse party, to testify to facts which occurred before the death of the latter’s testator or intestate. Such a case is not within the reason or spirit of the provision of Section 5241 of the Revised Statutes which excludes the testimony of an assignor of a claim in certain cases.
    2. Upon the death of a legatee, intestate, before payment of the legacy, the right to receive payment belongs to his personal representative, unless a different disposition is made by the will, and the liability of the executor therefor to the personal representative is not discharged by payment to the heir.
    
      3. Compliance by a foreign guardian with the provisions of Section 6279 of the Revised Statutes, is necessary to entitle him to demand or receive money belonging to his ward in the hands of an executor or administrator in this state; and the probate court may, in its discretion, refuse to make an order for the payment of the money to the guardian if satisfied it will be detrimental to the interest of the ward. Payment without such order is unauthorized, and affords no protection to the persons making the' payment.
    4. The settlement of the final account of an executor or administrator showing the payment of money to a person not entitled thereto, is no bar to a subsequent action against him for 'the recovery of the money by one who is legally entitled to the same.
    (Decided March 6, 1900.)
    Error to the Circuit Court of Knox county.
    The action below was brought by Harry Gotshall as administrator of the estate of Henry M. Campbell, against Thomas D. Banning as executor of John D. Thompson’s estate, to recover the amount of a legacy alleged to he due the estate of Henry M. Campbell under his father’s will, from the estate of John D. Thompson who was executor of that will. The plaintiff recovered in the court of common pleas, and that judgment having been affirmed by the circuit court, error is prosecuted here to obtain a reversal of those judgments.
    The facts are sufficiently stated in the opinion.
    
      J. B. Waight and A. JR. Mclntire, for plaintiff in error.
    We claim that under subdivisions four and five of section 5241 and under subdivision eight of section 5242, Revised Statutes, Samuel R. Gotshall was not a competent witness to the matters occurring prior to Thompson’s death. Roberts v. Briscoe, 44 Ohio St., 601; Stevens v. Hartley, 13 Ohio St., 525; Almach v. Cochran, 39 Ohio St., 316.
    It will he claimed that this question is decided in Farley v. Lisey, 55 Ohio St., 627, but we think not, counsel for plaintiff in error in the Farley case, cite same authorities, from which they claim that if Farley had resigned as administrator, he would have been competent as a witness.
    The second error involves the consideration of the case on its merits, and is that the court erred in its conclusions on the law and the facts.
    The facts upon which the rights of the defendant in error, and the liability of the plaintiff in error depend are substantially uncontroverted. The plain-' tiff below as administrator brought this suit to recover a legacy alleged to be due his intestate. The defendant below pleads payment made direct to the intestate’s heir at law, the beneficiary of the fund. Was such payment made, if so, is it a discharge of the defendant’s liability?
    We concede the general rule that the legacy of a deceased legatee is payable to his personal representative, not to his heirs at law, but claim the rule is not without exceptions. The reason of the rule is founded on the right of creditors of the deceased legatee, and when there are no creditors of the deceased legatee the rule is not inflexible. The purpose of the administration of estates is to gather the property of the deceased, convert it into form for distribution, pay the debts, make distribution to the parties entitled to receive the same. When there are no debts all there is to be done in administration is to pass the property to the parties entitled to receive the same, the heirs at law of the deceased. To say that this cannot be done direct, without the intervention of administration is a technical construction that this court will not adopt unless driven by precedent thereto. McClellan v. Downey, 63 Cal., 520; Pomeroy’s Equity, section 503; Tretwell v. McLennon, 52 Ala., 124.
    The courts of Ohio have not been called upon to-pass upon the question of direct distribution in any ease that we haYe been able to find, .but they have expressed themselves upon the subject of the necessity of administration in all cases, and of course it follows that unless administration is necessary, in all cases where there is property to be distributed, they must recognize the right to make distribution direct to the heir at law. Catlin v. Huestis, Exr., 9 C. C. , 120; 5 C. D., 23; 13 Ohio St., 288; 32 Ohio St., 234.
    These authorities clearly indicate the policy of the law in Ohio as to the necessity of administration for administration’s sake, that is, that it is not necessary, and if not necessary it must be that they will recognize direct distribution.
    Section 5797 plainly indicates the policy of the law in Ohio to dispense with administration upon provision being made for the payment of the debts of the estate.
    The question when an administration is unnecessary is discussed at length in the foot note to the case of Blood v. Kane, N. Y., Court of Appeals, January, 1892, reported in 15 Lawyer’s Rep., 490.
    Where the estate owes no debts, the sole distributee may take possession of it without administration. Hudson v. Wallace, 1 Rich. Eq. 1.
    Where the one exclusively entitled to an estate has ■ taken possession thereof and there are no debts, there is no need of administration to perfect his title. Spann v. Jennings, 1 Hill Eq., 324.
    If there be no outstanding claims against the estate of an intestate, his heirs may sue in chancery to recover the chattels of the decedent. Ricks v. Hillard, 45 Miss., 359.
    It is a general rule that heirs cannot sue in their own right as heirs, for property of the estate. There are exceptions to this rule, as when the administration has been closed, or when there are no debts against the estate and no administrator. Giddings v. Steele, 28 Tex., 732; 91 Am. Dec., 336; Webster v. Willis, 56. Tex., 468; Fort v. Fitts, 66 Tex., 593; People v. Abbott, 105 Ill., 588.
    
      Where the estate owes no debts the account between the heirs may be adjusted in an action in equity without the appointment of an administrator. Robertson v. Robertson, 120 Ind., 333; Watson v. Bird, 53 Miss., 480; Farve v. Graves, 4 Smedes & M., 707; Rabb v. Griffin, 26 Miss., 579; Wood v. Ford, 29 Miss., 57; Marshall v. Crow, 29 Ala., 278; Brown v. Forsche, 43 Mich., 492; Wright v. Wright, Mart. & Y., 43; Amis v. Cameron, 55 Ga., 449.
    If, however, debts exist, the collection of claims in favor of the estate must be made by the administrator. Walpole v. Bishop, 31 Ind., 156; Ferguson v. Barnes, 58 Ind., 169; Taylor v. Phillips, 30 Vt., 238.
    The heir who receives a mortgage given to the intestate can maintain a suit to foreclose the same. Babbett v. Bowen, 32 Vt., 437.
    When all persons interested in the estate of a decedent paid off the debts and distributed it by agreement, without probate of the will or administration, each is invested with an equitable- title to the share received. 2129 of the Alabama Code. Par. 2594 of Code, 1886; Carter v. Owens, 41 Ala., 217; Wright v. Robinson (Ala.), December 15, 1891; Needham v. Gillett, 39 Mich., 574; Foote v. Foote, 61 Mich., 181; Vandeveer v. Alston, 16 Ala., 494.
    There is an exception to the rule even in equity, which is the same as that at law. Miller v. Eatman, 11 Ala., 609; Roberts v. Messinger, 134 Pa., 298; McLean v. Wade, 53 Pa., 146; Begien v. Freeman, 75 Ind., 398; Ferguson v. Barnes, 58 Ind., 169; Moore v. Monroe, 59 Ind., 516; Westerfield v. Spencer, 61 Ind., 339; Church v. Railway Co., 70 Ind., 167; Holzman v. Hibban, 100 Ind., 338; Salter v. Salter, 98 Ind., 522; Mitchell v. Dickson, 53 Ind., 110; Williams v. Riley, 88 Ind., 290.
    But it must appear that those suing are entitled to the money. Schneider v. Piessner, 54 Ind., 524; Cowen v. Stewart, 128 Ind., 507.
    An executor who is also a legatee may, by assenting to his own legacy vest the bequest personally in himself; and so may an administrator who is also a distributee, appropriate his own share by acts and conduct manifesting such assent. Schouler, Exrs. & Admrs., 2d Ed., 248; Buford v. Holliman, 10 Tex., 560; A. & E. Ency., 208; Needham v. Gillett, 39 Mich., 514; Fretwell v. McLennon, 52 Ala., 24; 52 Pa., 370; 15 N. H., 516; 31 N. H., 393; 45 N. H., 456; 5 N. H., 337; 30 Vt., 238; 32 Vt., 437; Redfield on Wills, sec. 19.
    The same reason for not requiring original administration of an estate would apply to administration of this fund, in the condition in which Henry M. Campbell’s estate was at the time of the distribution of the fund. 13 Ohio St., 288.
    The assent of the executor or administrator to the taking of the legacy by the legatee and allowing it to go into the posession of the legatee under this assent, invests the legatee with the absolute title to the legacy whether it be general or specific and excludes the administrator from all further title thereto. 2nd Williams Executors, 1376, Note A; 2nd Williams Executors, 1379; Flickinger v. Saum, 40 Ohio St., 591; Posegate v. South, 46 Ohio St., 397.
    Coming now to the question, did Thompson pay this money to the legal representative of the heir at law of Henry M. Campbell, the heir at law being a minor and incapable of receiving it herself?
    We call attention of the court to these averments of the answer and the admission in the reply because of the claim made by counsel for defendant in error, that Miller was only the ancillary and not the domicilary guardian of Elizabeth A. Campbell, minor. The reply admits that Miller as such guardian exhibited to Thompson a certified transcript from the records of the courts of Tennessee appointing him. Section 6279, Revised Statutes.
    Taking sections 6290 and 6279 together, a foreign guardian’s authority in Ohio is not limited to the state appointing him, bnt his authority in the state in which he is appointed is by section 6290 extended to Ohio, and section 6279 only provides for proof of these facts being brought home to the person holding the fund instead of requiring him to investigate and learn the facts himself before he is required to pay. If it is true that the steps directed to be taken in the Probate Court by section 6279 are for the benefit and protection of the party holding the fund in Ohio and do not confer any authority upon the foreign guardian, then the party holding the fund in Ohio may waive these provisions in his behalf and upon becoming satisfied by other proof of the fact of the foreign guardian’s appointment, as Thompson did in this case, he may not require formal compliance with section 6279, and if he paid the money to the foreign guardian without requiring compliance with section 6279, he takes upon himself the risk only, of the foreign guardian being duly appointed and qualified according to the laws of the foreign state. Maupin v. Dulong, 30 Am. Dec., 699; Lee v. Stone, 23 Am. Dec., 589.
    The plaintiff below was not in position to question the authority of Miller as guardian to receive the fund. The importance of a question very often depends upon who makes it. In this case the plaintiff is the administrator of Henry M. Campbell who simply represents the abstract right to handle this fund and pay it to the beneficiary. He does not in any sense represent the beneficiary of the fund. He has with full knowledge of the payment and all the circumstances under which it was made, acquiesced in it for a period of four years, if he did not at the time consent to its being so made. He now seeks to make the question as to the want of authority of Miller as guardian of Elizabeth A. Campbell.
    Mere acquiescence may work an effectual estoppel. Hermon, section 768 and 769; 2 Hermon, section 1126.
    
      Having acquiesced in Thompson’s payment of this money for this length of time, whatever may have been his rights at first, he is now estopped. Quinlan v. Myers, 20 Ohio St., 511.
    No one except a ward or some one claiming an interest under him can question the validity of a guardian’s act in the sale of land on the ground that he had not given sufficient bond. Goldsmith v. Gilliland, 23 Fed. Rep., 645.
    It is averred in the answer and admitted in the reply that on August 24, 1895, Thompson, as Executor of Charles M. Campbell, filed his final account in the probate court of Knox county, Ohio, due notice of which was given and the account confirmed December 26, 1895. This account contained the $50.00 voucher of S. R. Gotshall as administrator of Henry M. Campbell. Calling the attention of the court to section 6187, Revised Statutes, the effect of such final account on persons having vouchers therein is discussed in Negley v. Guard, 20 Ohio, 310; Swearingen v. Mavis, 14 Ohio St., 424; McAfee v. Phillips, 25 Ohio St., 377; Cox, Administrator, v. John, 32 Ohio St., 532; Armstrong v. Grandin, 39 Ohio St., 368.
    The appointment of Miller as guardian in Tennessee appears to be that of a domicilary or original guardian and not that of an ancillary guardian. This appointment is not subject to collateral attack in this way. “The appointment of a guardian made by a court in the due exercise of its powers is not subject to collateral attack.” King v. Bell, 36 Ohio St., 470; Long v. Stanley, 16 Ohio St., 455.
    But on the question of the minor child’s residence following the mother even after re-marriage we call the court’s attention to the case of Maxison v. Sawyer, 12 Ohio, 195; Gazette Co. v.Dean, 25 Bul., 252.
    
      S. S. Bloom filed a brief in behalf of the children and heirs-at-law of Anna J. Love, deceased,, one of the legatees of John D. Thompson, deceased.
    
      
      Critchfield cG Graham; S. R. Gotshall and Columbus Ewalt, for defendant in error.
    While it is the purpose of the statute to prevent a person from testifying in his own favor concerning transactions with a deceased person, it does not render such person incompetent to testify where he is a mere nominal party, or has no interest in the result of the‘controversy. Bell, Admr., v. Wilson, 17 Ohio St., 663; Baker v. Jerome, 50 Ohio St., 682; Johnson v. Connable, 41 Ohio St., 178; Ryan v. Connor, Id. 368; Cochran v. Almack, 39 Ohio St., 314.
    Prior to the amendment of section 5241 containing' paragraph 4, an assignor was a competent witness for the assignee of a chose in action in a suit by the latter to establish a claim against the administrator of a decedent debtor. Myers v. Walker’s Administrator, 9 Ohio St., 558.
    The resignation or removal in no sense operates as an assignment of the decedent’s estate to the succeeding administrator. The latter does not derive his title from the former administrator but by operation of law; nor is the latter in any manner interested in the estate in the hands of his successor, and hence has nothing to gain from his testimony. Farley v. Lisey, 55 Ohio St., 627; Jones on Evidence, Vol. 3, Sec. 792, pages 1721-2; Snyder v. Feidler, 139 U. S., 478; Rapalje, Witnesses, page 112, par. 6; McLaughlin, Admr., v. The Creditors of Nelins, 9 Ala., 925; Farrow v. Bragg, Admr., 30 Ala., 261; Walker v. Weeks’ Admr., 39 Ala., 568; Wiggin v. Plummer, 31 N. H., 25; Bird’s Executor v. McGregor’s Administrator, 2 Grant (Pa.); Burkholder v. Lapp’s Executor, 31 Pa. St., 322; Saunders v. Duval’s Admr.. 19 Tex., 467.
    Where land is directed to be sold and the proceeds paid to legatees the land is to be treated as personal property. Ferguson v. Williams’ Executors, 14 Ohio, 140; Collier v. Collier’s Exrs., 3 Ohio St., 369.
    
      Upon the death of a distributee before distribution his rights pass to his personal representatives. Armstrong v. Grandin, 39 Ohio St., 368; Haines v. Munger, 40 Ohio St., 493; Redfield, Law of Wills, vol. 3, page 562, and Sections 126 and 127; Giauque’s Manual for Guardians and Trustees, page 76, par. 43; Story, Conflict of Law, Sec. 504.
    In the absence of any statutory provisions, chancery has complete power to make such orders and decrees for the transmission of the property of a nonresident minor as may seem for the best interests of the estate of such minor. Earl v. Dresser, 30 Ind., 11; Wait’s Actions and Defenses, Yol. 3, 542; Woerner on Guardianship, Sec. 28, p. 87; Willis v. Fox, 25 Wis., 646; In re Wilson, 8 S. W. Rep., 369.
    The rights and authority of foreign guardians in Ohio are amply provided for by statute. Sec. 6276, Rev. Stat.; Sec. 6277.
    These statutes are in pari materia, and are to be so construed so as to give effect to each and every part. Cincinnati v. Guchenberger, Law Bull, for July 24, 1899, p. 79; State of Ohio v. Blake, 2 Ohio St., 152. Endlich, in his Interpretation of Statutes, section 431; Williams v. Adams et al., 94 Ga., 270.
    Where a trustee pays the fund of a cestui que trust to one not authorized, and the funds are lost, the trustee will be held personally responsible for the fund. Williams v. Smith, 26 Barb., 316; Lawman, Admr., v. Elmira Ry. Co., 85 Hun. (N. Y.), 188; Morrell v. Dickey, 1 Johnson Chancery, 153; Boothe v. Bailey, 3 Hump. (Tenn.), 595; Young v. Darling, 15 Ill., 481; Tierman v. Beam, 2 Ohio, 383; Bright v. Boyd, 1 Story, C. C., 486.; Dickey v. Beatty, 14 Ohio St., 389; Bright v. Boyd, 1 Story, C. C., 486; 1 Lead. Cas. in Eq., 4 Am. Ed., 379; Ware v. Johnson, 55 Mo., 500; Morion v. Branhard, 27 Mo., 351; McBride v. Wilkinson, 29 Ala., 662.
    But the probate court is one of limited jurisdiction, and in Ohio has no power to direct payment by an administrator or executor to any one but those who are entitled by law to receive such payment. Cox’s Admr. v. John, 32 Ohio St., 532; Swearinger v. Morse, 14 Ohio St., 424; Taylor v. Huber, 13 Ohio St., 288, is cited as authority for the position claimed: that Miller, as guardian, was entitled to receive the fund directly from Thompson. But the doctrine of that case has no application to the case at bar. Webster v. Bible Society, 50 Ohio St., 1; Davis v. Corwin’s Executor, 25 Ohio St., 668.
    No case is cited in which it has been held that when an administrator has been appointed, his rights as such may be disregarded by debtors or persons having funds belonging to the estate simply because the debts of the estate have been paid; and no case has been cited where administration was dispensed with except where the heirs and legatees were of full age and there were no debts. On the other hand the cases cited by counsel recognize the necessity of administration in all cases where the heirs and legatees are minors. Amis v. Cameron, 55 Ga., 449; Taylor v. Phillips, 30 Vt., 258; Bowen v. Stewart, 128 Ind., 507.
    It has been held that voluntary payment of a debt to a foreign administration will be good if there be no debts or next of kin, and there has been no administrator appointed in the state of the debtor, provided the money paid is accounted for by such foreign administrator. Wilkins v. Elliott, 9 Wall., 740; 108 U. S., 256; Vaughn, Admr., v. Barrett, 5 Vt., 333; Bartlett, Admr., v. Hyde, 3 Mo., 490; Stone, Admr., v. Scripture et al., 4 Lans., 186. McCord v. Thompson, 92 Ind., 565; Denny v. Faulkner, Admr., 22 Kan., 189; Cline v. French, 57 Miss., 662; McNamara v. McNamara, 62 Ga., 200; Loose v. Ry. Co., 63 N. H., 588. Thompson did not occupy the position of a mere debtor. He held the funds as executor, and could not dispose of them or distribute them in any other manner than that provided by law.
    
      The proposition that payment to one not authorized can never avail as a defense either as an equitable payment or as an equitable counter-claim, except when made directly to the beneficiary, or is accounted for and paid over to the beneficiary by the one to whom it is paid, is conceded by counsel. But it is claimed that Miller was the beneficiary. The word “beneficiary” is a term suggested by Justice Story as a substitute for the term cestui que trust (1 Story’s Eq., Sec. 321.) A cestui que trust is he for whose benefit another person is seized of lands or tenements, or is possessed of personal property (Bouvier’s Law Dictionary). These funds were held for the benefit of the ward, and not for her guardian.
    The payment by Thompson to Miller was not only without authority, but in violation of law, and the consequent duty of Miller to account for the fund, and the liability of his bondsmen for failure to so account, does not render the payment by Thompson either valid at law or good in equity. The receipt does not purport to be for any sum except Gotshall’s commission. It is not and does not purport to be a receipt for any other portion of the fund. Neither does it purport to be a consent on the part of Gotshall that the money be paid to Miller. And if it did it would not bind the estate of Henry M. Campbell, for Gotshall would have had no authority to pay over the fund to Miller had it been paid to him, and he could not have given Thompson authority to do what he himself could not have done. Nor would the plaintiff have been estopped by such a receipt had it purported to be for the whole fund, or a consent that the fund be paid to Miller. It would have been a plain breach of trust to have so consented, and would not have estopped him nor his successor. Breuer v. Hays, 22 Law Bull., 144; Huston v. Huston, 2 Ohio St., 489; Pease v. Phillips, 10 Conn., 62; Jones on Evidence, Vol. 1, Sec. 254; McGowan v. Knox, 21 Ohio St., 547.
    
      The rule contended for, that payments made by a trustee without an order of a court of chancery will be sanctioned if such payment would have been authorized had application therefor been made, has no application to this case, for Thompson did not act in good faith. Potter’s Appeal, 56 Conn., p. 1. The doctrine of the latter case is especially applicable to the present case.
    We come now to consider the question whether or not the probate court, under Sec. 6279, upon the application of a foreign guardian and the filing of an exemplified copy of the record of the court appointing him, and giving notice, etc., has any discretion but to grant the order permitting such guardian to receive and remove the fund of his ward, in the custody of the executor or administrator, to the state of the ward’s domicile.
    If we consider the manifest purpose and scope of the various provisions of the statute relating to the property of foreign minors situated in this state — the care that the law provides for the protection of such property, and the restrictions against its removal except upon the carefully guarded conditions provided for, the conclusion is irresistible that the object of the legislature was to invest probate courts with the same authority and power over the property of such foreign minors as is exercised by courts of chancery in the absence of statutory provisions relating to the rights and property of such minors. Such was the construction of precisely similar statutes by the supreme court of Missouri, In re Wilson, 8 S. W. Rep., 369; Earl v. Dresser, 30 Ind., 11; Woerner on Guardianship, Sec. 26, p. 80; Lamar v. Micou, 112 U. S., 447; Wait’s Actions and Defenses, Vol. 3, p. 637; Schouler’s Domestic Relations, Sec. 230; Mundy v. Baldwin, 79 Ky., p. 121; Sessions of Stephens, 19 La. An., 499.
    The question whether or not the approval by the probate courts of payments made to distributees by executors or administrators binds any person except the parties receiving the money has been so long and so well settled in Ohio, that it is not a little surprising that the claim is now made that the approval has any other effect. Swearington, Admr., v. Morris, 14 Ohio St., 424.
    The account of Thompson shows that he paid this money to Miller, the party not entitled to it, and shows that it was not paid to the party who was entitled. It should be remembered that Gotshall did not file his account until Thompson had paid the money over to Miller. The case of Ratcliff v. Warner, 32 Ohio St., 334, is cited in support of the 'foregoing proposition. That case, however, not only does not support, but conclusively controverts that proposition. In Ohio the final settlement and discharge by the probate court does not terminate the authority of the executor or administrator to represent the estate so long as there are assets to be administered. Weyer v. Watt, 48 Ohio St., 545; 29 Ohio St., 567, and 25 Ohio St., 374.
   Williams, J.

By the will of Charles M. Campbell, his executor was directed to sell certain real property of which he died seized, and pay one-fourth of the proceeds to his son, Henry M. Campbell. John D. Thompson qualified as executor of the will, in Knox county, in 1873, and afterwards sold the property in accordance with the will, and received the proceeds. The share of Henry under the will amounted to something over fourteen thousand dollars, but before its payment he died intestate, in. Knox county, and the right to receive the money, it is conceded, vested in his personal representative, no other disposition thereof having been made by the will. He left a widow who received her share of his personal estate, and an infant daughter (Elizabeth) his only heir at law, whose share, amounting to the sum of $9,558.34, was demanded by Samuel R. Gotshall, who had become the administrator of Henry’s estate.

The widow of Henry married Marcus A. Miller, and they removed from the county of Knox to the state of Tennessee, taking with them the minor child, Elizabeth, where Miller procured his appointment as guardian of her estate. He presented an authenticated transcript of his appointment together with a cop;}' of his bond as such guardian, to Thompson, who then paid him the last mentioned amount of the money bequeathed to Henry by his father’s will, taking from Miller the following receipt: “Mount Vernon, Ohio, September, 1892. $9,558.34. I, Marcus A. Miller, as the guardian of Elizabeth Campbell, - infant daughter of the late Henry M. Campbell, deceased, she being the only child and sole heir at law of said decedent, do hereby acknowledge to have received of John D. Thompson, sole acting executor of the estate of the late Charles M. Campbell, deceased, father of the said Henry M. Campbell, the sum of nine thousand, five hundred and fifty-eight and thirty-four one hundredth dollars, being the full distributive share of my said ward of the legacy and bequest to the said Henry M. Campbell under the will of his father, the said Charles M. Campbell.

Marcus A. Miller, Guardian as Above.”

No application was made to the probate court of Knox county for an order authorizing the payment of the money to Miller, nor was any proof of his appointment filed in that court, nor any order obtained for such payment.

Thompson, also, about the same time, paid to the administrator of Henry’s estate the sum of fifty dollars, for which the following receipt was given: “Mt. Vernon, Ohio, Sept. 15,1892. $50.00.

Received of John D. Thompson, executor of the estate of the late Charles M. Campbell, deceased, the sum of fifty dollars, ($50.00), which I agree to and do receive in full satisfaction of all claims due or to become due to me, either in my own right or as administrator of the estate of Henry M. Campbell, deceased, for commissions on funds in the hands of said executor coming to the heirs of said Henry M. Campbell; I having made claim that the whole of said Henry M. Campbell’s share in the said Charles M. Campbell’s estate should be paid to me as the administrator of said Henry M. Campbell’s estate, while the said Thompson as such executor claimed, and the heirs of- said Henry M. Campbell were insisting upon the right to have the said share paid directly to the said heirs of said Henry M. Campbell, and thus depriving me of all commissions thereon'; and now this amount is paid to me by and with the consent of the widow and heir of said Henry M. Campbel], deceased, as a compromise and in full satisfaction of my said claim-

S. R. Gotshall, Administrator of Henry M. OamiJbell.”

Thereafter Thompson filed his final account as executor of the will of Charles M. Campbell, including in the account the two receipts above given, and claiming credit for their respective amounts. No exceptions Avere filed to the account, and it was approved and confirmed by the court, after due publication of notice. Some time after that, Thompson died testate and Thomas D. Banning qualified as his executor ; and, the administrator of Henry’s estate having resigned, Harry Gotshall was appointed his successor, and brought the action below.

These facts are shown by the uncontroverted allegations of the pleadings, and the agreements of the parties. Issues were joined upon various allegations of bad faith on the part of Thompson in the payment of the money to Miller, and of deception and misrepresentation in obtaining the receipt from Samuel R. Gotshall. It Avas claimed by the plaintiff, and denied by the defendant, that the money was paid by Thompson to Miller in pursuance of an agreement between them that the latter should apply a part of the money to the discharge of an individual obligation of his on which Thompson was bound, a part to the payment of a debt which Miller owed Thompson, and the balance to be used by Miller in business of a speculative character for his own benefit; and that Thompson so made the payment knowing Miller was pecuniarily irresponsible.

On the trial of the action Samuel R. Gotshall, the predecessor of the plaintiff as administrator, was permitted to testify to various admissions and statements of Thompson concerning the allegations made against him. Objection was made to this testimony on the ground that the witness was incompetent to give testimony in regard to any fact which occurred prior to Thompson’s death. The overruling of that objection and the admission of the testimony presents one of the questions made in this case. The witness was not a party to the action, and by no express provision of the statute was his testimony rendered incompetent. The contention is, that it should have been excluded under that clause of section 5242 which provides that when a case is plainly within the reason and spirit of the three preceding sections, “though not within the letter, their principle shall apply”; the claim being that the testimony admitted was plainly within the reason and spirit of that provision of section 5241 which excludes the testimony of an assignor of a chose in action, in respect to any matter- to which, if a party, he would not be permitted to testify. The reason for excluding the testimony of an assignor, as provided by section 5241, does not seem applicable to a resigned administrator or executor. Before the enactment of that provision it was not uncommon to make assignments of claims for the purpose of enabling the assignor, by his testimony, to establish the claim for his own benefit, in an action by his assignee against the representative of an estate. Then, the assignment of a claim is usually accompanied with a liability of the assignor in case the proof is insufficient to enable the assignee to recover upon it. So that the assignor, in such cases, is a party in interest, though not of record, and his testimony is practically in his own behalf. Upon the resignation of the personal representative, the title tp the assets of the estate, and all the rights and duties of further administration, devolve- upon his successor by operation of law, and he ceases to have any interest in the estate. For this reason it is quite generally held that when an administrator has resigned, or been removed, he is a competent witness in behalf of his successor, in all respects as if he were a stranger to the estate. In BurcVs Executor’s v. McGregor’s Admr., 2 Grant Gas., 353, an attempt was made to bring a discharged administrator within the rule which excludes an assignor of a chose in action from being a witness to support his claim. But the court said that, “the discharge of one administrator and the appointment of another is nothing like an assignment. The discharged administrator has-nothing to do with the appointment of his successor in that trust. He makes no transfer of the claims of the decedent. He receives no value for them. He is, therefore, a competent witness to support them.” And in Rapalje on Witnesses, that author, on page 112, says that: “The authorities even at common law, are quite harmonious in conceding the competency of an executor or administrator who has resigned, or has been removed or superseded, to testify in favor of his successor in the trust, and this even if proceedings are pending to reverse the action of the court removing him. He is no longer a party nor liable for costs.”

It is further urged that as the testimony admitted related in part to a transaction between the witness and Thompson, that part was incompetent and should have been excluded. But as said in Farley v. Lisey, 55 Ohio St., 627-631: “The statute has reference to the adverse character which the parties sustain toward each other as parties to the action, and not necessarily to their relation as parties to the transaction which is the subject of the action or defence.”

The payment by Thompson, to Miller the Tennessee guardian of the infant heir of Henry M. Campbell, of the money represented by the receipt of Miller hereinbefore set forth, is relied on as an equitable defense to the action brought by the plaintiff below; and the failure of the court to render judgment thereon discharging the defendant from liability, is assigned as error here. It is conceded that upon the death of Henry the legacy was payable to his personal representative, and not to his heir; but it is claimed that since the latter was ultimately entitled to the money, the payment to the guardian should, in equity, be treated as payment to the personal representative, and by the latter to the heir, as by this means the expense of further administration and circuity of action would be avoided, and all substantial rights preserved. In support of this contention cases are cited which hold that where there are no debts of an estate, the heirs may resort to a court of equity for division and distribution of the assets, or, when sui juris, may make division and distribution among themselves by agreement, without administration. That doctrine has little relevancy here. A foreign guardian is not entitled, merely by virtue of his appointment and qualification, to receive money belonging to his ward in the hands of an executor or administrator in this state. In Story on Conflict of Law, sec. 504®, the rule is stated to be, that, “no foreign guardian can virtute officii exercise any rights, powers, or functions,' over the movable property of his ward situated in a different state or country from that in which he obtained his letters of guardianship.” And, since whatever privileges are accorded such guardian in that respect in another state or country, are conferred merely as a matter of comity, it necessarily follows that their existence and enjoyment may be made subject to such regulations and conditions as the state or country in which the property is situated may deem it just and proper to impose. In the absence of any statute on the subject it seems to have been usual and necessary to resort to ancillary guardianship in the state where the property was situated, or make application to a court having chancery powers for a proper order authorizing the foreign guardian to exercise control over the personal estate of the ward so situated, or remove it from the state; and in such cases the courts have the discretionary power to make such order as should be deemed for the best interest of the ward. In this state that power is appropriately vested in the court of probate, which has exclusive jurisdiction of all probate and testamentary matters, and the control of the conduct of executors, administrators and guardians, and the settlement of their accounts. Section 6279, of the Revised Statutes, provides that: “In any case in which a guardian, not appointed in this state, and his ward, are both non-residents of this state, and the ward is entitled to money or other property in the lawful custody of any executor, administrator or other person in this state, such guardian may by order of the probate court of the proper county, upon filing therein the proof named in the second preceding section, and giving notice to such custodian as therein prescribed, be permitted to demand, receive or recover by suit, such money or other property and remove the same, unless the terms of limitation attending the rights by which the ward owns the same conflicts with such removal.” The second preceding section referred to, is Sec. 6277 of Revised Statutes, which requires that the foreign guardian making the application for the order therein provided for, shall file in the probate court, “an exemplification from the record of the court making the foreign appointment, containing all the entries and proceedings in relation to his appointment and his giving bond, with a copy thereof, and of the letters of guardianship, all authenticated, as required by the act of congress in that behalf;” and before such application shall be heard, or any action taken thereon by the court, at least 30 days’ written notice shall be served on the custodian of the money, specifying the object of the application and the time when the same will be heard. And it is further provided that no such order shall be made unless at the time of the hearing the state or territory in which the guardian was appointed has made a similar statutory provision; and the court may, in any case, deny the application, unless satisfied that it would be to the interest of the ward to grant the same.

Compliance with these provisions by a foreign guardian is necessary in order to invest him with the right to receive or recover from an executor or administrator in this state moneys belonging to his ward, and to remove the same to another state; for, it is only by virtue of the order of the probate court that, in the langugage of the statute, the foreign guardian is “permitted to receive the money or other property” of the ward “and remove the same.” These are just and salutary provisions, designed for the protection, mot only of the executor or administrator, but also of the interests and estates of infant wards. They plainly show that however formal the application may be, the court is not necessarily required to make the order requested, but is clothed with a large discretion, similar to that formerly exercised by courts of chancery, and may refuse to grant the order if satisfied it will be detrimental to the interests of the ward. There was no compliance with these statutory provisions, by Miller, nor any attempt to comply with them, which was known to Thompson when he paid over the money; and this gives color to the claim made by the plaintiff that there was some ulterior purpose in the transaction looking to the personal advantage of both, to the prejudice of the ward.

Miller being without authority to demand and receive the money, its payment by Thompson was also without authority, and constitutes no defense to the plaintiff’s action. Whether it would be different if the money had ultimately reached the heir after becoming of age, or had been expended for her benefit in a lawful manner, is a question not before us for decision. Assuming that in such a case, Thompson having paid the money in good faith would be entitled in equity to subrogation to the rights of the heir against the personal representative of her father, or might as equitable assignee, set up her right in defence of the plaintiff’s action, it is clear that case is not before us. Apparently in pursuance of an understanding when the money was paid, a part of it was at once applied in discharge of Thompson’s individual liability for Miller, a part in satisfaction of a debt due from Miller to Thompson, and the balance embarked in a disastrous enterprise of Miller by which in a brief time it was irretrievably lost; and his bondsmen became hopelessly insolvent.

The only other question we deem it necessary to notice, is whether the settlement of the final account of Thompson as executor is a bar to this action. The claim is, that as the account includes vouchers for the amount paid Samuel R. Gotshall for commission, and the amount paid to Miller, its settlement, so long as it is not opened up or impeached, is conclusive. And it undoubtedly is, so far as the payments represented by the vouchers are concerned, and against those to whom payments were made. But it has been the settled law of this state since Swearingen, Admr., v. Morris, 14 Ohio St., 424, that such a settlement showing payment to one not entitled thereto, is no bar to an action by the person who is entitled to the money. The settlement and order of distribution does not have the effect of determining who is the rightful distributee, but is a general order to pay to the person lawfully entitled to receive payment. The conclusive effect of the settlement, as said in the case just cited, is founded on the condition that the executor or administrator has paid or delivered to the person entitled thereto, the money or other property in his hands. It may be remarked here, as it was in that case, that “the money was not ordered out of his (the executor’s) hands by a court of competent jurisdiction having the parties in interest before it. He voluntarily paid it away, and now relies upon a subsequent approval of what he had done, to turn wrong into right.” The final account of Thompson shows no payment to the plaintiff below, and its approval presents no obstacle to the maintenance of his action for the recovery of the money to which he is legally entitled.

A claim is made here on a cross-petition in error, that the plaintiff should have been awarded interest for a longer period than was allowed by the trial, court. But, without entering upon a discussion of the subject, we are not disposed to disturb the judgment in that respect.

Judgment affirmed.  