
    Sommers v. Boyd, Treas.
    
      Guardian and ward — Dea,th of latter — Effect of — Estate of deceased ward —When administration is granted ux>on, how vests — Date of title to— Listing of, for taxation — By whom made — Legal situs of credits of estate.
    
    1. The death of the ward terminates the guardianship, and the guardian has no further authority or control over the personal estate remaining in his hands except to safely keep and deliver the same to the personal representative.
    2. When administration is granted upon the estate of a deceased ward, the assets vest immediately in the administrator, whose title, by relation, dates back to the time of the decease; and thereafter, he, and not the former guardian, is the proper person to list the personal estate for taxation.
    3. Por the' purposes of taxation, the domicil of the administrator is the legal situs of the credits belonging to the estate, and it is his duty to list them in the township, city, or village where he resides on the day preceding the second Monday of April, each year they are required to be listed. *
    4. In an action by a county treasurer to recover taxes charged on the duplicate against the defendant as guardian upon property listed by him as the property of his ward, the defendant is not estopped from making the defense, that, by reason of the death of the ward and administration granted on his estate before the property was listed, the guardian was without authority to list the same for taxation, and it was properly listed for the same year by the personal representative, who has paid the taxes thereon.
    (Decided December 8, 1891.)
    Error to the Circuit Court of Butler county.
    The original action was commenced in the Court of Common Pleas of Butler county, by W. M. Boyd, as treasurer of that county, against David Sommers as guardian of John McCleary, an imbecile, to recover the amount of the taxes charged against the defendant on the tax duplicate of Butler county, for the year 1889. The petition, which was filed on the 13th day of June, 1890, is as follows:
    “ The plaintiff says that he is now the duly elected, qualified and acting treasurer of Butler county, Ohio, and that the said defendant, David Sommers, was by the Probate Court of Butler county, Ohio, on the 29th day of April, 1882, duly appointed and qualified as guardian of the person and estate of John McCleary, an imbecile, and that the said David Sommers and the said John McCleary, at the time of said appointment, both resided in 'Milford township, Butler county, Ohio.
    “ Plaintiff further says that said David Sommers accepted said trust, and a large amount of personal property came into his hands by reason of said trust, to wit: The sum of $103,530, or more, subject to taxation in said county of Butler ; and that afterwards, to wit: on the 11th day of April, 1889, the said David Sommers, when called upon as sucli guardian by the assessor of said Millford township, Butler county, Ohio, to list for taxation the property in his hands as such guardian of said John McCleary, did then and there list in writing for taxation in said county, moneys, property and credits amounting to $103,530, and was duly affirmed to the same, and afterward, to wit: on the same day, the said assessor of Millford township, Butler county, Ohio, duly returned to the auditor of Butler county, Ohio, the list and return of property so made by said David Sommers as such guardian to said assessor, a certified copy of which said return of property so made by said David Sommers as such guardian of said John McCleary, is hereto attached marked 4 A,’ and afterwards and before October the first, 1889, the same was duly placed upon the tax duplicate of Butler county, Ohio, by the auditor, and that said duplicate was afterward, and before October 1st, 1889, by the auditor of Butler county, Ohio, duly and legally delivered to the treasurer of Butler county, Ohio, for collection of said taxes; and by reason of the premises the said defendant, David Sommers, as guardian of John McCleary, now stands legally charged .upon the tax duplicate of Butler county, Ohio, with the sum of $1,112.94 taxes, and five per cent, penalty, making an aggregate of $1,168.58, and that said sum of $1,112.94 taxes, and said sum of $55.64 penalty are both now due and unpaid, and that the said David Sommers, as such guardian of the said John McCleary, is now justly indebted to the said plaintiff, as treasurer of Butler county, Ohio, for unpaid taxes and penalty in the sum of $1,168.58, same being for the year 1889.
    “ Wherefore, plaintiff, as such treasurer, prays for a judgment against said David Sommers, defendant, as such guardian of John McCleary, for said sum of $1,168.58, and for costs of suit.”
    To this petition the defendant filed the following answer:
    “ The defendant, David Sommers, says that it is true as averred in the petition, that on the 29th day of April, 1882, he was duly appointed and qualified as guardian of John McCleary, an imbecile, and that he continued as such guardian thence until the death of said John McCleary, which occurred in Butler county, Ohio, on the 19th day of March, 1889, when his functions as said guardian were terminated by law. That on the 25th day of March, 1889, one James B. Dqffield, who was then and is now a resident of Somers township, Preble county, Ohio, was duly appointed and qualified as administrator of the estate of said decedent, John McCleary, and has ever since been and is now the acting administrator of the estate of said decedent, and as such, is the legal representative of said estate.
    “ He says, that on the 11th day of April, 1889, as guardian óf said John McCleary', upon notice and demand of one W. B. Stephens, township assessor of Milford township, in said county of Butler, being the township in which this defendant then resided, he made enlistment of the personal property and effects which were of the estate of said decedent, a true copy of which enlistment is set out in the petition and marked ‘ A.’ That being uncertain as to his duty as such guardian, at the time, in the premises, he made said enlistment under protest. He says that at the date of said enlistment he had not made and filed his final account for settlement, as said guardian, and had not transferred or turned over the property and effects set forth in said enlistment, of which said exhibit ‘ A ’ is a copy, to said James B. Duffield, as administrator of said estate, but that he did within two days thereafter, to wit: on the 13th day of April, 1889, file his final account as such guardian for settlement in the probate court of said county of Butler, and the same was finally settled and approved by said court September 30,1889.
    “ He further says, that on or about the-day of April, 1889, on demand of the township assessor of Somers township, Preble county, Ohio, being the township in which said James B. Duffield, administrator of the estate of John Mc-Cleary, deceased, then resided, he also enlisted as such administrator, the identical property and effects of said estate set out and described in said exhibit ‘ A ’ in the petition, and the said enlistment was duly returned to the auditor of said county of Preble, who duly placed against said property and effects the assessment of taxes proper to be assessed against the same for said year 1889, and which taxes so assessed have been paid by said Administrator Duffield to the treasurer of said county of Preble.
    “ Defendant says, that he, as such guardian, has made a full and final settlement with the Probate Court of Butler county, Ohio, of his accounts and transactions, and has accounted to said Duffield, as administrator of said estate, for all the property and effects of said McCleary, that came into his hands as such guardian.
    “ Defendant says that he has no interest, right in, or control of any of the assets which were of the estate of said John McCleary and that said James B. Duffield ever since the date of his said appointment as administrator of said estate has been the legal representative thereof, and in control af the property and effects thereof, and as such administrator is bound for the payment of all valid claims against said estate, including the taxes legally assessed against the aforesaid property and effects of said estate for the year 1889.
    
      “ Defendant denies that he, as such guardian, is bound for the payment of said taxes, but avers that if the same are legally assessed that James B. Duffield, as such administrator, is bound for the payment thereof.
    “ He says that whatever claim may exist in favor of said plaintiff for taxes against the property belonging to the estate of said John McCleary, accrued after the date of the death of said John McCleary, and are in law to be charged against and paid by the administrator of said estate.
    “ Defendant denies that he has any funds whatever belonging to the estate of said decedent, applicable, by him, to the payment of the claim for taxes set out in the petition, or that plaintiff is entitled to a judgment against him for said sum of $1,168.58, as averred in the petition, or for any other sum.
    “He denies that he has, as guardian of said John Mc-Cleary, any right, interest or claim whatever in the subject matter of this suit; he avers that he is not a proper party to this action.
    “ Therefore, he asks to be dismissed hence with his costs.”
    No reply was filed. The exhibit referred to in the pleadings, contains a statement of the property belonging to the estate of Mcdear}', which, as it there appears, consists of credits to the amount of $103,000, and farming utensils, agricultural products, and some other articles, amounting to $530. In the affidavit made by Sommers, to the exhibit, when the property was listed, is the following statement: “I further say that this assessment is made under protest, on demand of W. B. Stephens, assessor, I not being affvised whether I should make the enlistment or not.” It appears from the record, that the cause coming on for hearing before the court, it was agreed by the parties, “ that the petition and answer contain all the facts in the case, and said cause is submitted on said facts, and no further, or other evidence is offered.” The court gave judgment for the plaintiff, for the amount claimed in his petition, with interest and costs of suit. In due time the defendant filed his motion for a new trial, which being overruled, he prosecuted error to the circuit court, where the judgment was affirmed; and he seeks by the present proceeding to obtain the reversal of the judgments below.
    
      Fisher Vaughan, and Israel Williams, for plaintiff in error.
    I. The administrator or executor for the purpose of enlistment and taxation is regarded as the owner of the property of the estate; and it is held that the situs of the property is the domicile of the owner. Hence the -domicile of the administrator is the situs of the intangible property belonging to the estate. Revised Statutes, section 2734, 2735; Felton v. Transportation Co., 37 Ohio St. 450; Grant v. Jones, 39 Ohio St. 506; Bradley v. Bauer, 36 Ohio St. 28; Meyer v. Seaberger, 45 Ohio St. 235; Brown v. Noble, 42 Ohio. St. 405; State v. Ross, (N. J. ) 3, 517.
    We submit that, in view of the provision of the statutes and of the tenor of the decisions of this court above cited, that the enlistment made by Duffield, as administrator, was valid in law, and that the enlistment made by David Sommers, as guardian, was invalid, because Sommers was no longer in law owner of the estate of his former ward, that relation having terminated at the death of McCleary.
    Even if it were true that Sommers, at the date he made enlistment of said effects, to wit: April 11, 1889, held physical possession of them, it must be said that he did not hold them in his own right, but in trust for the owner thereof, in law, James B. Duffield, administrator. He could exercise no right or power over said effects further than to deliver them to the administrator on demand. He was a mere custodian, and as such was responsible to the administrator for their care and safety, and no other duty, in that relation, was incumbent upon him. , The fact that he saw fit to enlist said property (under protest) as guardian, was simply a voluntary act, not founded on right, nor enjoined by duty, and not binding in law. Any other volunteer could have done the same thing.
    Now then it is clearly apparent that Duffield, as administrator, was bound to list the property of his intestate, (Revised Statutes, sec. 2734,) and that he did his duty in the premises. And that consequently the act of Sommers in listing the same was invalid — unless the fact that the mere possession by Sommers of said effects in Butler county would prevent Duffield from making a valid enlistment of the same at his own domicile in Preble county.
    Duffield was the only person who had the right to list the property. He was the person to be charged. On the death of McCleary Sommers’ powers as guardian- absolutely terminated and he had no other duty to perform except to deliver the property to the administrator. 3 Wait’s A. & D., 544.
    His naked duty to collect and turn the property over to the administrator was not such a power over the assets as to authorize or require him to enlist the same under' section 2734 of the Revised Statutes. Myers v. Seaberger, 45 Ohio St. 232.
    The phrase “or otherwise controlled by him” does not give the power. Section 2735 must be construed with section 2734, the person to list for others must be one defined in section 2734.
    II. In the second place plaintiff claims that even if the court shall find that the enlistment for taxation of said assets was properly made in Butler county, this suit cannot be maintained against him, but the same should have been brought against said James B. Duffield, as administrator, the legal representative of the estate.
    That the estate of John McCleary is the real party in interest. It is laid down in Allen v. Miller, 10 Ohio St. 374. Revised Statutes, sec. 5006, provides that no person can be made a party defendant unless he has or claims an interest in the controversy adverse to the plaintiff.
    David Sommers neither had, nor could he have, any interest whatever in the subject matter of this controversy as guardian, because long before the commencement of the suit he had made full and final settlement of his account as guardian of John McCleary.
    In 45 California Report, page 491, it is held that executors or administrators are necessary parties in an action to enforce the payment of a claim for taxes against an estate.
    
      O. J. Smith, and Alex F. Hume, for defendant in error.
    1. It plainly was,the duty of Sommers as guardian to list said personal property and notes and mortgages belonging to the McCleary estate for taxation. It is conceded that he had the possession and control of said personal property, notes, and mortgages on April 9, 1889. Section 2734, Revised Statutes.
    Sommers as guardian rightfully had all said notes and mortgages in his possession, and was in fact the legal owner thereof until his final account as guardian was approved by the probate court, and he was ordered by the court to turn them over to the administrator of McCleary. The administrator of McCleary could not by any process of law, have taken those credits from Sommers’ possession before his final account was approved, and he was ordered by the court, with the consent of the administrator, to turn them over to the administrator.
    The supreme court in the case of Myers v. Seeburger, page 235 of 45 Ohio St. Reports, clearly recognized the right and duty of Sommers as such guardian to list said notes for taxation.
    Suppose no administrator had been appointed for McCleary until long after the time for listing the property for taxation in 1889, who could have listed such credits and property for taxation, if Sommers as guardian was not authorized to list the same?
    The township assessor is not authorized or required to go out of his township to hunt up the owners of personal property or credits. See section 2747.
    It is the policy of the law to have all property and credits listed for taxation. Hence it is the duty of every resident of every township to list all credits and property owned by him, or held by him in trust for or on account of another while in his possession or under his control. If Sommers as guardian had not listed said credits and property, they would probably have escaped taxation.
    It may be said that section 2784 makes it the duty of the administrator of a deceased person to list the propertjr belonging to his intestate’s estate. But this means that he is required to list it after it comes into his possession or under his control.
    II. The personal property and credits belonging to Mc-Cleary’s estate were properly listed in Milford township, Butler county. Section 2735.
    The personal property on McCleary’s farm located in Milford township on April 9, 1889, could not be listed at any other place, and as McCleary’s administrator resided in Preble county, and all the credits belonging to McCleary’s estate were then in the possession of Sommers as guardian, who resided in Milford township, such credits could only be listed in that township.
    McCleary’s administrator could not lawfully have listed either the personal property or credits belonging to Mc-Cleary’s estate in Preble county, because the personal property was located on a farm in Milford township, Butler county, and the credits were in the possession of Sommers as guardian in that township.
    That all the personal property belonging to McCleary’s estate was taxable in Milford township, Butler county, Ohio, where the same was located on April 9, 1889, is clearly decided in the case of Brown v. Noble, 42 Ohio St. 407.
    III. Sommers as guardian is estopped from claiming that he should not pay the taxes on the property and credits he listed. By his return he authorized the auditor of Butler county to charge him as guardian with the taxes properly assessed on the property and credits so returned on the tax duplicate of the county. The auditor of the county acted upon his representations in his return and did charge him as guardian on the tax duplicate of the county with the taxes properly levied on the property and credits so returned by him. He ought not now to be permitted to say that his rep resentation was not true after it has been acted upon.
    
      IV. But it may be said that Sommers ought to have listed said property and credits as belonging to the administrator of McCleary. But it is sufficient answer to this to say that he did not so list the same, and he alone is at fault if the property and credits are wrongly listed, and must suffer the consequences of his own error, if he made an error.
    V. It makes no difference what became of the credits and personal property of McCleary after April 9, 1889. If a .man owns a horse on the day preceding the second Monday of April and sells it the next day, he must list it for taxation. Hence it makes no difference how soon after April 9, 1889, he filed his account as guardian in the probate court, or when he made his final settlement, or when he turned the credits and property over to McCleary’s administrator after that date.
    VI. This action is not governed by the civil code. It is a statutory action provided for in section 2859 of the statutes.
    VII. This action cannot be maintained against the administrator of McCleary, under section 2859. No tax stands charged against him on the tax duplicate. He did not list any property for taxation, and the auditor could not lawfully charge him with any taxes. He is not the personal representative of Sommers as guardian, and is not liable for the taxes charged against Sommers as guardian. No tax having been assessed against him, none can be collected of him.
    VIII. The principle decided in the ease of Allen v. Miller, 10 Ohio St. 374, has no application to this case. Sommers as guardian is the real and only defendant in this case. Judgment in this case is sought against him as guardian alone. It is not an action against the estate of John Mc-Cleary.
   Williams, C. J.

The personal property of which Mc-Cleary died seized, was not subject to taxation in both the counties of Butler and Preble. Some of it might properly be taxable in one county, and some in the other; but the .same property could not be required to bear the double burden of taxation in both. Nor could the listing of the property by Sommers, and that by Duffield, both be lawful. Either the one, or the other, was without the requisite authority to bind the estate. The first question we are called upon to decide, therefore, is, who was the proper person to list the personal property belonging to McCleary’s estate, for taxation. And the decision of that question, may go far toward determining, if it does not entirely do so, where the property should have been listed.

The statute, declaring who shall list personal property for taxation, provides that “the property of every ward shall be listed by his guardian,” and the property “ of every estate of a deceased person, by his executor or administrator.” And it also provides that, “ every person of full age and sound mind shall list the personal property of which he is the owner, and all moneys in his possession,” and “all moneys invested, loaned or otherwise controlled by him, as agent or attorney, or on account of any other person, company or corporation.” Revised Statutes, section 2724. With regard to the time and manner of listing the property, it is provided, that the person required to list it shall annually “ make out and deliver to the assessor a statement verified by his oath, of all the personal property, moneys, credits, investment in bonds, stocks, joint stock companies, annuities, or otherwise, in his possession, or under his control, on the day preceding the second Monday of April of that year, which he is required to list for taxation, either as owner or holder thereof, or as parent, husband, guardian, trustee, executor, administrator, receiver, •accounting officer, partner, agent, factor, or otherwise.” Revised Statutes, section 2736. The day preceding the second Monday of April, in the year 1889, was the 9th day of that month. And the record shows, that on the 25th day of the previous-month, Duffield was appointed administrator of McCleary’s estate.

It is well settled, that immediately upon the appointment of an administrator, all the personal estate of the deceased, passes to and vests in him, and his title as administrator, relates back to the date of the intestate’s decease. As was said by Parker, C. J., in Jewett v. Smith, 12 Mass. 310, “ The property may be considered in abeyance until administration is granted, and is then vested in the administrator by relation from the time of the death.” In Lawrence v. Wright, 23 Pick. 128, the rule is stated by Shaw, C. J., as follows : “ The personal property of a deceased person vests in the executor or administrator, and when an administrator is appointed, the appointment dates back, and vests the property in him from the decease of the intestate. Those who have the property in custody in the meantime, have no fur-, ther power, or interest in it, than is necessary to enable them to keep it safely and have it forthcoming when called for by the administrator.”

We see no reason to doubt that on the 9th day of April, 1889, the title to the whole of the personal estate of Mc-Cleary, was vested in Duffield, the administrator, who alone had authority to represent the estate, and upon whom, as we have seen, the statute enjoined the duty of listing it for taxation. Counsel for the defendant in error claim, however, that Sommers was the proper person to list it for that year. They contend that, either the guardianship of Sommers continued until, on the settlement of his final account, the effects of the deceased ward, were under the order of the probate court, turned over to, and received by the administrator, or, they were, on the 9th day of April, 1889, otherwise so in Sommers’ control, as to make it his duty, under section 2734 of the Revised Statutes, to list the same for that year. In our opinion neither position is tenable. The guardianship terminated upon the death of the ward; and, thereafter, the guardian was without authority to do any act which could affect, or be binding upon the estate. He no longer held the property as guardian, but as a custodian merely. In English v. Campbell, Wright’s Rep. 119, it was held that: “A guardian, or a man that has been guardian, after his guardianship expired, has no more power than if he had never been appointed.” And see Perry v. Brainard, 11 Ohio 442. The final account to be rendered after the death of the ward, is not an account of an existing, but of the past guardianship ; and while such an account may be a convenient means of enabling the administrator to ascertain with accuracy the extent of the estate, it is not essential to his title to, or the exercise of his authority over it. We are unable to discover any ground upon which it can be maintained that the guardianship is extended until the settlement of the account. The possession retained by the guardian, of the ward’s estate, after the latter’s death, is a mere naked possession, without authority to invest, loan, or otherwise control the same; and, únder the decision in Myers v. Seabrook, 45 Ohio St. 232-235, such guardian is not within the provision of section 2734 of the Revised Statutes, which requires every person of full age and sound mind to list for taxation, “all moneys invested, loaned, or otherwise controlled by him as agent or attorney, or on account of any other person or persons.” In the case just cited, it was held, that the possession by an agent, of the credits of his principal, with authority to collect and remit to the latter the interest and principal, but without other control of the credits, did not make a case within the statute, authorizing the agent to list them for taxation. Applying the maxim nosoitur a socies in the construction of the statute, the court say: “ The phrase ‘ or otherwise controlled by him,’ must be construed to mean in a manner similar to the loaning and investing of money.” Nor, according to that decision, does the fact that the money, for which the credits were given, had been previously loaned by the person having them in possession when the same were listed by him, in any way alter the case. There, the securities listed by the agent, were given for money which he had previously loaned for the principal, and which were left in the agent’s hands for collection, and it was nevertheless held, the agent was without authority to list the securities for taxation. So that, in the case before us, the fact that the securities in the hands of Sommers, were given for money of the ward which he had loaned while guardian, is without significance. In our view of the question, therefore, the administrator, and not Sommers, was the proper person to list the personal estate of McCleary for taxation in the year 1889; and the due administration of the estate, involved the payment of such taxes as had been, or might be charged against it.

With respect to the place where the property should be listed, the statute provides, that “ every person required to list property on behalf of others shall list the same in the same township, city, or village in which he would be required to list it if such property were his own.” Revised Statutes, sec. 2735. That this provision applies to administrators, is evident from the language of the next clause, which is, “ but he shall list it separately from his own, specifying in each case the name of the person, estate, company or corporation to whom it belongs.” Duffield, the administrator, being, as we have seen, the person who was required to list the property of the McCleary estate, in April, 1889, and it being his duty to list it in the same municipality or township where he should list his own property, the place of listing the property of the estate will be determined, when it is ascertained where Duffield should, that year, have listed his own property of like kind, unless other provisions of the statute prescribe a different rule governing such cases. The other statutory provisions on the subject are contained in the same section, and are as follows: “ all merchants’ and manufacturers’ stock, and all personal property upon farms shall be listed in the township, city, or village in which the same may be situated; and all other personal property, moneys, credits, and investments, except as otherwise specially provided, shall be listed in the township, city, or village in which the person to be charged with taxes thereon may reside at the time of the listing thereof, if such person reside within the county where the same are listed, and if not, then in the township, city, or village where the property is when listed.” It is shown by the record, that the property listed by Sommers as belonging to McCleary’s estate, consisted of credits, including mortgages, to the amount and value, of $103,000, and the remainder, amounting to $530, was tangible property, mostly farming utensils, and agricultural products. The tangible property, it is conceded, should have been listed in Milford township, Butler county, where it was situated on the 9th day of April, 1889. The situs of the credits, for the purposes of taxation, is the substantial matter of the controversy. Credits, being rights in action merely, have no actual situs ; but, as such property is made the subject of taxation, it has been given a constructive or legal situs, which, when not otherwise fixed by statute, is that of the residence of the owner. It was said by Welch, J., in Worthington v. Sebastian, 25 Ohio St. 1-10, such property is “ incapable of a separate situs, and must follow the situs either of the creditor or the debtor. To make it follow the residence of the latter is to tax the debtor and not the creditor, to tax poverty instead of wealth. That it is the creditor and not the debtor that is to be taxed, and that the tax is to be imposed by the law of the creditor’s place of residence, and not the law of the debtor’s place of residence seems to be quite well settled by authority.” This general rule is recognized in Brown v. Noble, 42 Ohio St. 405, where it is said by McIlvainb, J., “ It is not disputed, that, as a general rule, the situs of personal property is, in law, the residence of the owner; nor that the administrator or executor of an estate is the owner of the assets, within the meaning of this rule. But granting this, it is nevertheless true, that the legislature may fix the place where personal property, including moneys, credits and investments subject to taxation in this state, must be listed.” After considering the provisions of sections 2784 and 2735 of the statutes, the conclusion derived from them is stated by the learned judge as follows: “It seems clear to us that the situs of moneys, credits and investments for the purposes of taxation, is the residence of the person whose duty it is to list the same, and not the residence of the owner if they be located in different counties.” Under this rule, inasmuch as it was the duty of the administrator, in April, 1889, to list the credits belonging to the estate of McCleary, they were properly listed by him in the township and county of his residence, notwithstanding McCleary’s residence at the time of his death, and that of the person who had been his guardian, were in another county, and the instruments which were the evidence of the credits due the estate, were also in the latter county. The credits were not there, in the possession of any one clothed with the authority or charged with the duty of listing them; and the mere presence there of the evidences of the indebtedness, did not so fix the situs of the credits, as to require them, under the last clause of section 2785, to be there listed for taxation.

Counsel for the treasurer further contend, that Sommers is estopped from denying his liability to pay the taxes for which the action was brought. The argument is, that the tax list which he delivered to the assessor, and which was by the assessor returned to the auditor, induced the auditor to enter the property upon the tax duplicate, and charge the taxes for the current year against it, and Sommers ought not, therefore, to be permitted to dispute the statement contained in the return. It is plain an estoppel cannot be so raised. Thestatement purported to be a list of thq personal property belonging to the estate of McCleary, in Sommers’ hands as guardian. It seem that Sommers doubted his authority to list the property, and this is expressed in the statement. As has been shown, he was wholly without such authority, and his action was inoperative to bind the estate; and, if so, it is not readily perceived how it could operate to bind it by way of estoppel. The property is entered upon the duplicate, as the property of McCleary’s estate; the taxes are charged against Sommers as guardian; and the action is against him in his representative capacity. It is not sought to make him individually liable, and the facts alleged in the pleadings would not create an individual liability. The conduct of Sommers was not intended, or calculated, to mislead or deceive any one, but was founded upon an innocent mistake. The auditor simply performed his ministerial duty of carrying the property returned by the assessor upon the duplicate, and charging the taxes against it. His position was in no way changed by reason of the mistake, nor does it appear that the position of any other person was. The essential elements of an estoppel are wanting.

The judgments below will be reversed, and judgment entered for the defendant.  