
    Henicle, Admx., v. Flack, Guardian.
    
      Guardianship — Designation of person in will — Section 10930, General Code■ — Appointment by probate court necessary, when— Sections I0492,and 10931, General Code — Estates—Minors.
    
      A testamentary guardian of a minor, named by will, pursuant to the provisions of Section 10930, General Code, is without authority to act as such guardian until he has been appointed guardian by the probate court having jurisdiction to make such appointment.
    (Decided October 29, 1914.)
    Error : Court of Appeals for Holmes county.
   Powell, J.;

Shields and Grant, JJ., concurring. (Grant, J., of the Eighth District, sitting in the place of Voorhees, J.)

Suit was brought on an account by plaintiff, Ellen Lemon Henicle, administratrix, against Della Flack, as testamentary guardian of Peter Painter, a minor, without any averment in the petition that such defendant had been appointed as such guardian by the probate court of this or any other county of the state.

To this petition a general demurrer was filed and sustained and, plaintiff not desiring to amend, the petition was dismissed. A petition in error was then filed in this court to reverse the judgment of the court below.

The question presented for consideration is the status of a testamentary guardian of a minor, without any appointment as such guardian having been made by the probate court.

A testator may name a guardian by will for his minor children. Section 10930, General Code.

When so named “he shall be entitled to preference in appointment over all others, without reference, to his place of residence, or the choice of such minor. His appointment, duties, powers, and liabilities in all other respects shall be governed by the law regulating guardians not appointed by will, except as otherwise specially provided.” Section 10931, General Code.

This would indicate that a guardian named by will but not appointed by the probate court is without legal standing other tha.n his right to preference in the appointment of such guardian. There are two main reasons why this should be so:

1. That no unsuitable person should be appointed guardian over infants of tender years,' to their detriment. And

2. Otherwise the probate court would be without authority “to appoint and remove guardians, direct and control their conduct, and settle their accounts,” in cases where a guardian has been designated by will. This jurisdiction is exclusive. Section 10492, General Code.

This provision as to guardians is analogous to the appointment of executors named as such in the wills of testators. Section 10605, General Code.

An appointment must be made by the probate court or the executor so named is without authority to act, but the appointment of the executor named in the will is discretionary with the court. The authority of such executor to act is not derived from the will, but from the appointment of the court having jurisdiction over the subject-matter of the action.

Mr. Neivton Stilwell, for plaintiff in error.

Mr. Charles R. Cary, for defendant in error.

The court of common pleas did not err in sustaining the demurrer to the petition, and its judgment will be affirmed.

Judgment affirmed.  