
    Soliday, Gdn., v. Ash et al.
    (Decided May 6, 1931.)
    
      Mr. Wood Bowen, for plaintiff in error.
    
      Mr. Edwin D. Ricketts, for defendants in error.
   Mauoic, P. J.

D. M. Soliday was the guardian of Elizabeth Clarke, an incompetent resident of Hocking county. On December 30, 1930, after the death of the ward, the guardian filed an amended final account in the probate court, and to this account the defendants Emma Ash and others, as children and next of kin of the- deceased ward, filed exceptions. Following the judgment of the probate court on these exceptions an appeal was taken to the common pleas court, where one exception was sustained to that account. From the judgment of the common pleas error is prosecuted to this court.

The exception, sustained' was directed to those items of the account that show that the estate in the hands of the guardian consisted of certain shares of stock in the Logan Clay Products Company. The record shows that the guardian, by due proceedings in the probate court, sold real estate belonging to his ward for the sum of $4,000, and took as part payment stock in the Logan Clay Products Company of the value of $3,500; that he subsequently disposed of $500 of this stock, and that the remaining $3,000 of such stock constitutes the estate now in his hands.- The guardian was, of course, only authorized to sell the real estate for cash, and his acceptance of the stock in question was in law and in fact an investment by him of the ward’s estate in the stock mentioned. The guardian had no power to invest his ward’s funds in this stock except with the approval of the probate court. Section 11214, General Code. The guardian, of course, is liable for the consequences of such investment if made without the required approval, provided timely exception is made to his action in that respect. The claim of the plaintiff in error is that he made the investment in question prior to the time when he filed a preceding account of his trust in the probate court, and that the approval of that account by the probate court was in law an approval of his action in making this investment, and that this judgment of the probate court approving this earlier account can only be opened by a civil action for that purpose, as provided in Section 10954, General Code.

The statutes relating to the effect of the approval of accounts in the probate court are strangely conflicting. Exceptions filed to the last account of an administrator and executor, or the trustee of a nonresident, open up all the preceding accounts for readjustment. A settlement of the various accounts of a guardian, however, is final until opened as provided in the section referred to. Woodmansie v. Woodmansie, 32 Ohio St., 18; Errett v. Howert, 78 Ohio St., 109, 84 N. E., 753. The guardian in this case, in invoking the approval of the preceding account as a bar to the exceptions to the final account, is in effect pleading res judicata. This plea is good only to the extent that the record shows that the question raised by the exceptions to the final account has been actually adjudicated by the approval of the earlier account.

“True, a partial account is conclusive unless attacked in the mode provided by statute * * * but this is only in respect to matters adjudicated therein * * V’ Eichelberger v. Gross, 42 Ohio St., 549, 554.

We have, therefore, the guardian’s claim that the securities in question belong to the ward’s estate, the counterclaim of the interested beneficiaries that the guardian had no authority to invest his ward’s money in these securities, and the reply of the guardian that the probate court has already approved the investment. To support this defense of former adjudication, the guardian showed that in his former account it was shown that the guardian had charged himself with cash as follows: “Interest of preferred stock of the Logan Clay Products Company $445.31,” and that in that account under the heading, “Itemized Statement of Investment of Ward’s Estate,” there were these items:

7% Preferred Stock of the Logan Clay
Products Company.................. $3000.00
Savings Account with Logan Home Savings Assn. (5%).................... 306.34
Savings Account with Farmers and Merchants Bank (3%).................. 88.45.

While it is true that this earlier account does show receipt by the guardian of income on this stock, and does show $3,000 of' this stock as part of the ward’s estate, it does not show in any place that the guardian had used the proceeds of the sale of the ward’s real estate, or any other of the ward’s funds, in purchasing the stock. So far as this account is concerned, the ward may have owned this stock at the time of the guardian’s appointment. Moreover, the account as a whole tends to show that the guardian had never invested any of the proceeds of the real estate. The account shows that in the guardian’s cash transactions he received $5,400.95, including $4,000 cash for the real estate, and that he had expended $1,890.43, leaving a cash balance of $3,510.52, which in that form was owing the ward. When the probate court approved the former account, such approval was only of the guardian’s claim that he had a cash balance of $3,510.52 belonging to his ward. The evidence, therefore, does not sustain the claim of the guardian that he had invested in this stock prior to filing his earlier account, and had secured the approval of the probate court thereto. The court of common pleas was clearly right in sustaining the objection.

We have gone into the merits of the case although there is- some doubt whether the questions argued and disposed of are raised by the record herein. Inasmuch as the claim of the guardian was that the rights of the parties had been theretofore adjudicated, the sole question seems to be as to the sufficiency of the evidence to support that claim. There was no motion for a new trial filed in the common pleas, and inasmuch as such motion is a prerequisite to the review in this court of the weight of the testimony, it is doubtful whether the question attempted to be raised is properly before the court.

The judgment is affirmed.

Judgment affirmed.

Middleton and Blosser, JJ., concur.  