author: By the Court

text:
    Jones, Administrator, v. Willis, Administrator.

      Personal representative of an executor — Not liable to administrator de bonis non, when — Section 6020, Rev. Stat. — Interpretation of statute.

    The personal representative of an executor who died in office, before an account was due or filed in reference to the trust, is not liable, under section 6020, Revised Statutes, to the administrator de bonis non of the testator in an action brought against him alone as such personal representative, to recover for unadministered assets of the estate of such testator, where none of such assets came into the possession or under the control of such personal representative.
    (Decided March 18, 1902.)
    Error to the Circuit Court of Fayette county.
    [This case was heard and decided by the Northern Division of the court.]
    The plaintiff in error, in the year 1895, by the probate court of Fayette county was appointed administrator de "bonis non with the will annexed, of-James M. Willis, deceased and qualified as such. The predecessor in the trust was William R. Willis, who was appointed as executor of the wall without bond, in September, 1888. At the time of this appointment and acceptance of the trust, the executor, it is alleged in the petition filed in the common pleas court, was indebted to his father, the testator, in a large sum, which manured at different dates and in different sums between March, 1881, and the death of the testator, which sums with interest aggregate the sum of $19,182.81, for which the petition prayed judgment with interest from January 1, 1894.
    The plaintiff in error was plaintiff in that petition, and the defendant in error was made defendant. In January, 1890, and before any account with the trust was due or filed, William R. Willis, the executor, died. On the — day of October, 1892, the defendant, Madison Willis, was appointed and qualified as administrator of the estate of said William R. Willis, and in the same month and year he filed a statement or account in the probate court as to the doings and ■acts of said William R. Willis while he was executor of said will of James M. Willis, deceased, the testator.
    In this account or statement no reference was made to any of the alleged indebtedness of said William R. Willis to his testator at the time he accepted his appointment, and it was silent on that subject, but contained in substance a statement that no part of the estate of the testator had come into his possession as administrator of the estate of William R. Willis, and that there was nothing about which any account could be rendered by him as such personal representative of William R. Willis, formerly executor.
    Exceptions were filed to this statement or showing, by one or more of the legatees under the will of the testator, James M. Willis, on the ground that the administrator of the estate of William R. Willis, the defendant in error, who had been executor, did not charge himself with the debts which his intestate owed the estate at the time of his appointment. The probate court sustained the exceptions to the extent of the amount for which suit was brought in the court of common pleas, and charged the same against defendant in error, and the findings of the probate court in this respect are fully set out in the petition, as. ihe basis of the action against the defendant in error.
    The defendant demurred to the petition and the demurrer was overruled. The defendant filed an answer containing several defenses, which were after-wards amended and supplemented. To the several defenses the plaintiff in error, plaintiff below, filed demurrers, which were sustained by the court, and no further amendments being desired, the court found for the plaintiff. Exceptions were taken to the ruling of the court on the demurrer to the petition and also on the demurrers to the answer, and error was prosecuted in the circuit court and it was adjudged by that court, that the common pleas erred in overruling the demurrer to the petition; and erred in sustaining the demurrers to the defenses contained in the answer. Error is prosecuted in this court to reverse the judgment of the circuit court.

      Mr. Humphrey Jones, for plaintiff in error.

      Messrs. Harper &, Harper, for defendant in error.
   By the Court

We do not doubt that when one who is appointed executor of the will, or administrator of the estate of a deceased person, and accepts the trust, being at the time indebted to the estate, such indebtedness at once becomes assets in his possession, and are treated as so much money received. This has been repeatedly held by this court and is not in controversy in this case.

The plaintiff in error commenced his action in the lower court, relying on the provisions of section 6020, Revised Statutes, which reads:

“An administrator or executor appointed in the place of an administrator or executor who has resigned, been removed, or whose letters have been revoked or authority extinguished, shall be entitled to the possession of all the personal effects and assets of the*estate unadministered, and may maintain a suit against the former executor or administrator, and' his sureties on administration bond, for the same, and for all damages arising from the maladministration or omission of the former executor or administrator.”

In this case the facts show that William R. Willis, executor of the will of James M. Willis, died while in office and before any settlement account was due or filed. The will appointing him, as executor, directed that no bond be given and none was given. When we undertake to apply section 6020 to the facts plead in the petition, it appears to us quite clear, that it does not support the plaintiff’s claim and right of action.

The defendant, James Madison Willis, is the personal representative of William R. Willis, the executor who died.

Section 6020 confers upon the successor of an executor or administrator, “who has resigned, been removed, or whose letters have been revoked, or authority extinguished, a right to the “possession of all the personal effects and assets of the estate unadministered,” and also confers upon such successor the right to bring and maintain a suit against the “former executor, or administrator and his sureties on administration bond, .for the saíne,” etc. But this action is not against the former executor or administrator and his sureties on a bond; but is brought against the personal representative of such executor, who never had custody or possession of the assets in question.

We are of opinion that section 6020 does not cover the plaintiff’s case and does not authorize the present action. We believe that according to the wording'of tllis section the cases of Tracy v. Card, 2 Ohio St., 431, and Curtis v. Lynch, 19 Ohio St., 392, still have controlling effect on the facts in this case. The petition .failed to show a right to recover in the plaintiff. The ‘demurrer to the petition was well taken and should 'have been sustained by the common pleas.

The judgment of the circuit court is affirmed.

Affirmed.

Burket, Davis and Price, J.J., concur.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    The Pennsylvania Company v. McCurdy.

      Employe held to appreciate dangers from defects — Of wfyich he might have knovMdge — Law of master and servant.

    An employe experienced in the service in which he is engaged is conclusively held to appreciate the dangers which may arise from defects of which he has, or in the exercise of due care might have, knowledge.
    (Decided March 18, 1902.)
    Error to the Circuit Court of Stark county.
    • Mr. J. R. Carey and Mr. F. J. Mullins, for plaintiff in error, cited the following authorities:

      Peterson v. Ga. R. & Bkg. Co., 97 Ga., 798; Jones v. Kern, 101 Ga., 309; Coal Co. v. Barber, 47 Kan., 29; Aultman, Taylor & Co. v. Syme, 91 Hun, 632; Phelan v. Douglas, 11 How. Prac., 193; Taylor v. Brown, 147 U. S., 640; Coal & Car Co. v. Norman, 49 Ohio St., 598; Coal Co. v. Estievenard, 53 Ohio St., 43; Hesse, Admx., v. Railroad Co., 58 Ohio St., 167; Griffith v. Gidlow, 3 H. & N., 648; Hough v. Railroad Co., 100 U. S., 224; Reese v. Clark, 146 Pa. St., 465; Marean v. Railroad Co., 167 Pa. St., 220; Marsh v. Chickering, 101 N. Y., 396; Dillon v. Railroad Co., 3 Dill., 319; Smith v. Sibley Mfg. Co., 85 Ga., 333; Rail

      road Co. v. Ray, 70 Ga., 674; Nelson v. Railroad Co., 88 Ga., 225; McGhee v. Bell, 19 Ky. L. R., 267; Lawrence v. Hagemyer & Co., 93 Ky., 591; Michael v. Stanley, 75 Md., 464; Erdmann v. Illinois Steel Co., 95 Wis., 6; Railroad Co. v. Jones, 11 Ill. App., 324; Railroad Co. v. Thompson, 15 Ill. App., 117; Railroad Co. v. Montgomery, 15 Ill. App., 205; Railroad Co. v. Puckett, 52 Ill. App., 223; Railroad Co. v. Swisher, 53 Ill. App., 411; McQueen v. Railroad Co., 30 Kan., 689; Goltz v. Railroad Co., 76 Wis., 136; Anderson v. Lumber Co., 67 Minn., 79; King v. Lumber Co., 93 Mich., 172; Schroeder v. Car Co., 56 Mich., 132; Peterson v. Lumber Co., 90 Wis., 83; Railroad Co. v. Bradford, 66 Tex., 732; Railroad Co. v. Kemper, 147 Ind., 561; Feeley v. Pearson Cordage Co., 161 Mass., 426; Foley v. Elec. Light Co., 54 N. J. L., 411; Conley v. Am. Ex. Co., 87 Me., 352; Ames v. Railroad Co., 135 Ind., 363.

      Messrs. Webber d Turner, for defendant in error, cited tbe following antborities:

      Coal & Car Co. v. Norman, 49 Ohio St., 599; Hesse, Admx., v. Railroad Co., 58 Obio St., 167; Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St., 312; Railway Company v. Erick, 51 Ohio St., 146; Jones v. Pipe Company, 15 C. C. R. 26; Stewart v. Bridge Co., Ib., 601; Railroad Company v. Waterworth, 21 C. C. R., 495; Railroad Company v. Hilliard, 116 U. S., 642; Fulton v. Bullard, 94 Fed., 781; Bailey on Master and Servant, 184; Beacb on Contributory Negligence (3 ed.), Sec. 37; Black’s Law & Practice in Accident Cases, Sec. 325; Goodrich v. Railroad Co., 116 N. Y., 398; Davidson v. Cornell et al., 132 N. Y., 228; Baird v. Railroad Co., 61 Ia., 359; Russell v. Railroad Co., 32 Minn., 233; Cook v. Railway Co., 34 Minn., 45; Dorsey v. Construc

      tion Co., 42 Wis., 584; Lawless v. Railroad Co., 136 Mass., 1; Ferren v. Railroad Co., 143 Mass., 197; Fitzgerald v. Paper Company, 155 Mass., 155.
   By the Court:

McCurdy brought suit in the court of common pleas-to recover for a personal injury received while coupling cars. He was employed by the company in the capacity of yard conductor at Canton. The negligence alleged against the company was that it furnished a car with a Dowling coupler which at the time was defective in that the knuckle had been broken off. Upon the trial of the case on the usual issues plaintiff’s testimony showed that he had been in the employ of the company for more than fifteen years during-several years of which time he was employed as yard conductor. Testimony was also introduced to show that the defect in the car was open, visible to him and observable by him at the time he sustained his injury,, and furthermore that an inspector of cars had previously called his attention to the particular defect. Upon this state of the evidence the court gave to the jury, among others, the following instruction:

“Employes are presumed to be aware of and take notice of all risks and dangers which are open to observation; and they must exercise their senses, and use reasonable care under the circumstances, in examining their surroundings; and if, in the exercise of such care, the plaintiff knew or could have known of the conditions and circumstances under which the work was being done, and the dangers incident thereto, and appreciated them, he must be held to have assumed the risk.”

The substance of the condition that plaintiff must appreciate the danger before being bound by its consequence, was several times repeated in the- charge. For this limitation upon his duty, in view of the fact that he was experienced in the service in which he was employed, there is no authority nor reason whatever. A servant is bound to appreciate dangers which may result from defects of which he has, or in the exercise of due care might have, knowledge, and a failure to appreciate danger arising from such sources is no excuse. Coal & Car Co. v. Norman, 49 Ohio St., 598; Coal Co. v. Estievenard, 53 Ohio St., 43; Hesse, Admx., v. Columbus, Shawnee & Hocking Railroad Co., 58 Ohio St., 167.

Judgment reversed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


author: Price, J.

text:
    Booco v. Mansfield.

      Action on promissory note — Denial of execution — Not inconsistent with claim of nonconsideration — Pleadings.
    1. In an action on a promissory note, a denial of its execution and delivery is consistent with a separate ground of defense, that the note is without consideration.
    ■ 2. When both defenses are made, and the plea of want of consideration is in general terms, it is error for the court to require the defendant to make the same definite and certain “by setting forth the facts and circumstances connected with the note which render it without consideration,” and the error is continued in striking the defense from the answer for noncompliance with such order. The ease of Chamberlain v. Railway Co., 15 Ohio St., 225, distinguished.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Fayette county.
    The defendant in error, Minnie Mansfield, sued in the court of common pleas to recover of plaintiff in error, on a promissory note which reads as follows:

      “April 11, 1894, Jeffersonville, Ohio.
    “One day after date I promise to pay to Minnie Mansfield, five hundred dollars.
    “|saac S. Booco.”
    The petition on the note is in the usual short form, and prayed judgment for the amount of the note and six per centum interest from its date.
    The defendant, Booco, answered the petition, setting up two grounds of defense, which are:
    “First defense — That said defendant did not make and deliver the promissory note in the petition described, and that the defendant denies each and every allegation contained therein.
    “Second defense — The said defendant for a second defense to the said petition says: that there is not now, nor was there at any time any consideration whatever for the said pretended note set out and described in the said plaintiff’s petition, and the said defendant therefore avers that the said pretended note is wholly without any consideration therefor, and that the same is void.”
    The plaintiff below filed her motion for an order of the court requiring the defendant to make the first and second defenses more definite and certain, which motion the court overruled as to the first defense, but as to the second defense sustained said motion, and required the defendant to set forth the facts and circumstances connected with said note which rendered it without consideration and void as claimed by him. The defendant excepted to this order of the court, and the defendant not desiring leave to amend said second defense and not amending the same as ordered, the court, struck it from the answer, and to this order the defendant excepted.

      The case went to trial by jury on the first defense, and the plaintiff obtained a verdict for the amount demanded in the petition, for which the court rendered judgment, and overruled the motion of defendant for a new trial. The defendant prosecuted error in the circuit court where the judgment of the common pleas court was affirmed. The case comes to this court on error, but the principal error relied on for reversal is the order of the trial court requiring the second, defense to be made certain and definite as stated in the order, and striking the defense from the answer for noncompliance therewith.

      Messrs, Gregg, Patton & Gregg, for plaintiff in error.
    The defendant has the right to put in issue all the elements that go to make a valid instrument, to-wit: the execution, delivery and consideration.
    The execution and delivery being denied, the question of consideration becomes important to prove or disprove the execution and delivery and to take this question from the case therefore bar the introduction of testimony thereon, affected a substantial right of the defendant.
    The court in passing on a question of this character should take into consideration the facts as pleaded, and determine it in the light of the particular facts in the case, and should consider the allegations of the first defense.
    The defense relied on being forgery there could be no facts or circumstances^ within the defendant’s knowledge to enable him to comply with the order of the court. All he could do would be to allege it in general terms as was done in this ease. Therefore, it would be impossible to comply with the order of the court.
    The form of answer adopted in this case was taken from the case of Pavey v. Pavey, 30 Ohio St., 600, where it was held good.
    In the cases of Pavey v. Pavey, 30 Ohio St., 600, and Clark v. Clark, 8 Circ. Dec., 752; 16 C. C. R., 103, the execution and delivery of the note in question was admitted by the defendant. And the execution and delivery being admitted, there must be facts within the defendant’s knowledge that show a failure or want of consideration, if there is in fact a want or failure of consideration.
    The pleading in question did not come within the provisions of Sec. 5088, Rev. Stat. The precise nature of the defense was pleaded, to-wit: “No consideration.” The plaintiff was apprised of the character of the defense.
    Between the original parties to a promissory note, the facts are as much within the knowledge of the payee as the maker; and such payee could not be taken by surprise. 6 Ency. Pl. & Pr., 274.
    A ruling of a court ought never to be upheld where' it will result in injustice and hardship on a party to a suit when a contrary ruling could not prejudice the opposite party. It is contrary to the letter and the spirit of our system of jurisprudence.
    The distinction between pleading want and failure of consideration that we have insisted on in this case has been recognized by the courts of many of the states. 4 Ency. Pl. & Pr., 947; Kernodle v. Hunt, 4 Blackf., 57; Webster v. Parker, 7 Ind., 185; Billan v. Hercklebrath, 23 Ind., 71; Wheelock v. Barney, 27 Ind., 462; Beaver v. Hartville University, 34 Ind., 245; Mookler v. Lewis, 40 Ind., 1; 3 Ala., 316; 5 Ala., 346; 7 Ala., 129; Milligan v. Pollard, 112 Ala., 465; 6 Ark., 412; 10 Ark., 273; 11 Ark., 307; 5 Ark., 345; 8 Ark., 133; 34 Ark., 169; Gulf, C. & S. F. Ry. v. Harriet, 15 S. W. Rep., 556; Patterson v. Gile, 1 Colo., 200; Munro v. King, 3 Colo., 238; 64 Ill., 366; 97 Ill., 642; Couchman v. Thomas, 3 Ky., 261; Commonwealth v. Clark, 4 Ky., 531; 9 Miss., 489; 42 Miss., 276; Miller v. Brumbaugh, 7 Kan., 343; Brown v. Ready, 20 S. W. Rep., 1036; Foren v. Dealey, 4 Ore., 92; 4 Ency. Pl. & Pr., 950.
    The court erred in ordering the second defense ¡stricken from the defendant’s answer. Sections 5087, •5071 and 5082, Rev. Stat.
    It is only redundant, irrelevant or scurrilous matter that the court has power to order stricken from a pleading and there can be no claim made that this pleading was of that character. And the fact the court had sustained a motion to make more definite and certain cannot change the rule. Long v. Newhouse, 57 Ohio St., 348.
    The Supreme Court has also held that the adoption of our code has broadened the practice pertaining to the administration of justice as it existed before the code. Peter v. Foundry & Mach. Co., 53 Ohio St., 534.
    The court also erred in admitting the note in evidence and overruling the demurrer of defendant to plaintiff’s evidence.
    There was no evidence whatever offered to prove the defendant Booco ever executed the note in question.
    Before the note would be competent evidence there must be proof offered of the execution and delivery.

      The execution being proved, the possession of the payee of the note might be sufficient evidence of the delivery; but there being no proof that Booco signed the note ór authorized any one else to sign it, he could only be liable by having adopted the instrument as. his under circumstances that would create an estoppel from denying the adoption.
    In the hands of a bona fide holder for value, the adoption of the note would be binding, but as between the original parties, where no one is misled, the authorities are divided as to the effect of the adoption of a forged signature, some holding the purported maker liable; others, the contrary rule. Tiedeman Com. Paper, 399; 2 Daniel Neg. Instruments, 360.
    And the weight of authority and the reason is. with the latter rule.
    The note sued on was non-negotiable and did not. contain the words “value received” or any words of similar purport. It would not come within the rule of instruments that' import a consideration and a. good or valuable consideration must be proved.
    The courts hold that the words “value received”' over the signature of the maker is an acknowledgment of a consideration, and prima facie evidence, which is sufficient to put the burden on the defendant, to show there was no consideration. But no such rule applies where these words are omitted and the note is non-negotiable. 14 Ency. Pl. & Pr., 482; 2 Greenleaf Ev., 152; Tiedeman Com. Paper, 152;, Burnham v. Allen, 1 Gray, 496; 51 Me., 191; Hemmenway v. Hickes, 4 Pick. (Mass.), 497; Prindle v. Caruthers, 15 N.Y., 425; Walrad v. Petrie, 4 Wend. (N. Y.), 575; Spear v. Downing, 22 How. Pr. (Supreme Ct. N. Y.), 30; Spear v. Downing, 34 Barb. (N. Y.), 522; DeForest v. Frary, 6 Cow. (N. Y.), 151; Lansing v. McKillip, 3 Cai. Rep. (N. Y.), 286; Shee v. Megargee, 4 Phila. (Pa.), 75; 17 Leg. Int. (Pa.), 20; 2 McCord L. (S. Car.), 218; 3 McCord L. (S. Car.), 195; Brown v. Parks, 8 Humphrey (Tenn.), 294; Read v. Wheeler, 2 Yerg. (Tenn.), 50; Shelton v. Bruce, 9 Yerg. (Tenn.), 24; Summers v. Sanders, 28 S. W. Rep., 1038; 1 Parson’s Notes and Bills, 226; Torrey v. Baker, 1 Allen, 121; 2 Leigh, 198; 15 Gratt., 165; Bristol v. Warner, 19 Conn., 7; Betts v. Gas & Water Co., 97 Pa. St., 367; 64 Vt., 601; Edgerton v. Edgerton, 8 Conn., 6; Birclebach v. Wilkins, 22 Pa. St., 26.
    The case in Spear v. Downing, 22 Howard Pr. (N. Y.), 30, which was affirmed, 34 Barb. (N. Y.), 522, was decided under a similar statute to Sec. 5086 under our code.
    The rules adopted by the law merchant that promissory notes and bills of exchange are the representatives of and intended to take the place of, and circulate as money, can have no application to an instrument such as the one sued on, and the holding that such instruments import a consideration therefore fails.
    The mere fact of the delivery of what purported to* be a promissory note would not bind the promisor, unless there was some consideration for the promise. A gift of one’s own note is a delivery of a promise only and not the thing promised. Hamor v. Moore, 8 Ohio St., 239; Starr v. Starr, 9 Ohio St., 74; Swan’s Treatise, 518.
    The allegations of the first defense in the answer consisted of new matter within the meaning of Sec. 5079, Rev. Stat. Hauser v. Metzger, 1 C. S. C., 164; Bank v. Lloyd, 18 Ohio St., 355.
    Not being denied by reply, the facts therein alleged stood admitted by section 5081. Fewster v. Goddard, 25 Ohio St., 276.
    Under the pleadings the defendant was entitled to judgment and the demurrer to the evidence was equivalent to a motion for judgment, and the action of the court in admitting the note in evidence against defendant’s objection and in overruling the demurrer was clearly error.

      Messrs. Van Demin & Chaffin, for defendant in error.
    Brief of Mr. Frank A. Chaffin.

    Complaint is made by plaintiff in error that the court erred in ruling that be should make bis answer more definite and certain, and on bis refusal to do so, it was error “to strike it from the files.”
    This we think is the only question in the case that might be open to argument, and this, we claim, has been settled by the court in the case of Chamberlain v.Railway Co., 15 Ohio St., 225, and followed by the circuit court in Clark v. Clark, 8 Circ. Dec., 752; 16 C. C. R., 103.
    The court will observe that the defendant, in bis answer, undertook to plead two separate and distinct defenses.
    The first entirely different from the second. The second in no way containing any part of the first, either by incorporating its language, or by reference, as was done in Hammond v. Earle, 58 How. Pr., 426, 1 Kinkead Code, Pl. & Pr., Secs. 78 and 20. Consequently both must be complete in and of themselves. Kinkead P. & P., p. 84; Reid v. Huston, 55 Ind., 173; Bank v. Green, 33 Ia., 140. It is but begging the question to say that the allegations in the first defense aids the second.
    We submit that the first defense does not plead forgery — even if defendant had incorporated its allegation in his second defense. We admit it bears the ear-marks of having been drawn to suit the occasion — and reads “that said defendant did not make and deliver the promissory note,” etc.

      He might not have made it, and yet delivered it. He might not have delivered it and yet made it. In either event it would not be forgery, and if there was any error in this case, we think it was committed when the court overruled the motion of plaintiff to said first defense.
    Had defendant denied “that he made or delivered,” or had he stated in his answer “that.he neither made, nor delivered said note,” then his first defense would have been well pleaded, and in accordance with the case of Winchell v. Crider, 29 Ohio St., 480; Kinkead Form, 337.
    Another claim is made, viz.: “That the court has no power to strike out of the pleading, any matter except such as is specified in Ohio Rev. Stat., Sec. 5087.”
    If this is true, then not only the lower courts, but the Supreme Courts as well, have • been erring for years. Commissioners v. Hoaglin, 5 Kan., 558.
    To the answer to argument of the plaintiff in error that “the allegations of the first defense consisted of new matter and there being no reply filed, the facts; under the code, therein stated, stand admitted.” We say there” was no necessity for a reply. But for sake of argument, ádmit the answer set up new matter requiring one. The defendant did not complain in the lower court; did not ask for judgment on the pleadings, but proceeded to try the case, and after the jury decided that he should pay, and the case had reached the circuit court, he then complained because no reply had been filed. ' If defendant had actually pleaded new matter, and plaintiff refused to reply, he might have demanded judgment on the pleadings, and then if the court had refused that judgment and forced him to trial, there might have been some ground for dissatisfaction. But such is not the case here, and under the circumstances, it looks as though he was simply “laying up for the second heat,” not knowing that Judge Okey, as far back as 1883, had “dropped the flag” on such proceedings and made it a matter of record in the case of Lovell v. Wentworth, 39 Ohio St., 614.
    And in so doing only followed Woodward v. Sloan, 27 Ohio St., 592; Randall v. Turner, 17 Ohio St., 262; Fretz v. Stover, 89 U. S. (22 Wall.), 198; Clements v. Moore, 73 U. S. (6 Wall.), 299; White v. Richmond, 16 Ohio, 5.
    But we claim no reply was necessary. The question made, because the note was non-negotiable, has been settled by Dugan v. Campbell, 1 Ohio, 115; Ring v. Foster, 6 Ohio, 279, and Howe v. Hartness, 11 Ohio St., 449; Leonard v. Sweetzer, 16 Ohio, 1.
    On the question of consideration, we are compelled to hold different views from those expressed by counsel for Booco, and insist there is quite a difference between a promissory note and a book account.
    The former is signed t>y the debtor, and thereby acknowledged, and a written promise to pay it. The latter is made up entirely by the creditor, and is only his memoranda against the debtor.

      It can make no difference, whether this note was negotiable or not, whether it contained the words “value received” or not, the defense relied on was forgery. It was a promissory note, even though not negotiable, nor containing the words “value received,” and the case of Dalrymple v. Wyker, 60 Ohio St., 108, can be of no benefit to their side of the contention. In fact it decides that “consideration” is presumed in promissory notes.
    Was this a promissory note?
    It is useless to cite authorities. There is none but holds that all that is required is “a written promise to pay, to a person named, a certain sum of money, absolutely at a time therein named!” 2 Blackstone, 467; 3 Kent, 74; Chitty, 585; 1 Daniel, 36; Story, Sec. 1; Bouvier Law Dic.
    Some authorities go so far as to say, that the time of payment need not be definitely fixed. Randolph, Secs. 7,178; Byles, 87; Chitty, 79-184; 1 Daniel, 117; 1 Parsons, 193; Story, Sec. 63; Story on Prom. Notes, Sec. 51. And dozens of other cases and authorities cited under Sec. 178.
    All commercial paper implies a consideration, though none be expressed by these or other words., Randolph, Secs. 178-180; 1 Edwards, Sec. 202; Story on Bills, Sec. 63; Mandeville v. Welsh, 18 U. S. (5 Wheat.), 277, and a long line of cases cited under note: 3 to Sec. 178, Randolph, and note 1 to Sec. 180.
    The rule in question is very tersely expressed in. 1 Parsons on Contracts, 249: Usually bills and notes express the consideration by saying, “for value received ;” but when this is not expressed, it is implied by law, both as to the makers and acceptors, and this presumption must be rebutted by evidence, if the defense rests on want of consideration. Citing Hatch v. Trayes, 11 A. & E., 702; Grant v. De Costa, 3 M. & S., 35; Benjamin v. Tillman, 2 McLean, 213; Briston v. Warner, 19 Conn., 7 ; Popewell v. Wilson, 1 Stra., 264; Lines v. Smith, 4 Fla., 47; Clark v. Shneider, 17 Mo., 295; Austin v. Blue, 6 Mo., 265.
    Negotiability is no necessary part of the form or substance of a promissory note. Barchell v. Slooch, 2 Ld. Raym., 1545; Smith v. Kendall, 6 T. R., 123; Kimball v. Huntington, 10 Wend., 675; Middlesex v. Davis, 3 Metc., 133; Arnold v. Sprague, 34 Vt., 402; Bigelow Bills and Notes (2 ed.), 22 and 23; Lines v. Smith, 4 Fla., 47; Hubble v. Fogartie, 3 Rich. (S. C.), 413; Hunley v. Long, 5 Port. (Ala.), 154; Thompson v. Armstrong, 5 Ala., 383; Cook v. Gray, Hempst., 84; Ware v. Kelley, 22 Ark., 441; Townsend v. Derby, 3 Metc., 363; Kinsman v. Birdsall, 2 E. D. Smith, 395; McArthur v. McLean, 6 Jones, 475; Labadie v. Chateau, 37 Mo., 413; 2 Am. & Eng. Ency. Law (1 ed.), 339, subject Bills and Notes; Delano v. Bartlett, 6 Cush., 364; Hill v. Todd, 29 Ill., 101; Sawyer v. Vaughn, 25 Me., 337.
   Price, J.

The first defense contained in the answer, when stripped of unnecessary verbiage, is a denial of the execution and delivery of the note —the subject of the action. And the second defense pleads generally, that the alleged instrument is without any consideration to support it. This being its character the plaintiff below, by motion, asked the court to require the defendant to make this ground of his defense definite and certain “by setting forth the facts and circumstances connected with said note which render it'without consideration and void,” and “by setting forth a complete statement of facts upon which said second defense is based.”

This motion was sustained and thereby the defendant was required to so reform and amend the plea, as to set out “the facts and circumstances connected with said note which render it without consideration and void,” and “to set out therein a complete statement of the facts upon which said second defense is based.”

The defendant did not so amend, and for want of compliance with the order, the defense was stricken from the answer.

Was this error? is the only important question before us. There can be no doubt, that the plea of want of consideration for a note is entirely consistent with a denial of its execution and' delivery, for under the liberal provisions of our code of practice, the defendant may set forth in his answer as many grounds of defense as he may have, whether they are legal or equitable in character, subject to the limitation, that such several defenses must be consistent with each other. Revised Statutes, Sec. 5067. This court held in Pavey v. Pavey, 30 Ohio St., 600, that, in an action on a note, the defendant may plead a denial of its execution and that there was no consideration therefor, and that it is error in such case to require the defendant to elect upon which of the two defenses he will proceed to trial.

If the note is not genuine, as alleged in the-first ground, it had no consideration as alleged in the second ground of defense, and we think that the defendant had not only the right to these consistent defenses, but he had the right to be consistent in his •evidence to support them. So, if the instrument sued on is not genuine, what facts and circumstances connected with it, could he set out? Indeed, it is difficult .to see how the defendant could have complied with the order made in the case, without abandoning his first defense, or at least, very greatly compromising it. If he should set out “facts and circumstances connected with the note which renders it without consideration,” the plea so framed might at once be construed as admitting the execution of the instrument, and the very compliance with the order, if it could be complied with, would present an apparent inconsistency between the two defenses. And why should statements of facts be required in this case? The suit is between the payee and the alleged maker of the note. It lacks the usual words “for value received,” and is not negotiable in form. Every fact surrounding its execution is, or could be, as well known to the plaintiff as to the defendant. If the note is not genuine, her knowledge about its origin is far superior to his. On the other hand, if the defendant made and delivered it, the plaintiff would not be .a stranger to “the facts and circumstances” connected with its execution; and we think there is no necessity for the enforcement of the strict rule laid down by the trial court.

We do not intend to unduly circumscribe the discretion and control which the court has over the filing and reformation of pleadings, but to say, that owing to the character of the two grounds of defense, the court erred in sustaining the motion complained of and in striking the defense from the answer.

The case of Chamberlain v. Railway Co., 15 Ohio St., 225, is cited to justify the action of the lower •court. There were several questions involved in that case, and the least of all was, the effect of going to trial without objection, where one of the defenses to a promissory note is a plea in general terms, that it is wdiolly without consideration; and this court there decided that, if the plaintiff, without requiring a statement of the facts on which the defense is based, joins issue, any evidence is admissible on the trial, that tends to impeach or sustain the consideration. And the distinguished judge announcing the opinion, referring to the general terms of the plea, said: “this the plaintiff might have required to be made more definite, by a statement of the facts upon which the defense was based; but he waived this right and joined issue. * *

And further examination of that case shows, that the defendant admitted the execution of the note in suit. He had subscribed to the stock of the railroad company, and had paid a number of installments thereon, and gave the note sued on in settlement of the other assessments, and among other defenses, we need not mention here, was the general plea that the note was without consideration. The feature of that case which readily distinguishes it from the case at bar, is that there the note was genuine, while here its execution is denied. It is the ordinary application of the rule that the syllabus and opinion in a case should be considered in the light of its issues and facts.

It is our judgment that the court erred in sustaining the plaintiff’s motion to the second defense, and that the error was continued in striking it from the answer, for which error the judgments of the circuit court and the court of common pleas are reversed, ■and the case is remanded for new trial.

Judgment reversed.

Williams, O. J., Burket, Spear, Davis and Shauck, JJ., concur.


author: Shauck, J.

text:
    Beckman, Jr., et al. v. Garrett.

      Employe discharged before expiration of service — Because of default in duty — Actual injury need not be shown by employer — To justify discharge — Master and servant.
    To justify the discharge of an employe before the expiration of the term of employment, it is sufficient for the employer to show that the employe was guilty of a default in duty whose natural tendency was to injure his business, and actual injury thereto need not be shown.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Cuyahoga county.
    . Garrett brought suit in the court of common pleas to recover from Beckman & Company damages alleged to have been sustained by him as the result of their breach of a written contract of employment whereby they had employed him for five years from March 1, 1894, to March 1, 1899, at a stipulated salary, and he had agreed to serve them for that period, his obligation being expressed in the following terms:
    “In consideration of the foregoing the said Albert P. Garrett agrees to and does hereby enter into the employment of the said Beckman & Company upon the terms hereto set forth and agrees to devote all his time and attention to the interest of said parties of the first part.”

      The plaintiff, admitting the performance of the contract until September 30, 1896, alleged that upon that date the defendants in violation of its terms and without his consent terminated the employment.
    The answer admitted the execution of the contract upon which the plaintiff counted, and further alleged:
    “That the plaintiff did not give to the business and interests of the defendants the time and attention required to be given by him thereto, under the terms of said agreement on the 18th, 19th and 28th days of September, 1896, on which said days the plaintiff, without the-consent and against the wishes of the defendants, and without any cause, excuse or justification therefor, did wholly absent himself from the defendant’s place of business and from his said employment, and during the whole of said days did utterly fail and neglect to perform the duties of his said employment, in utter disregard of the terms of his said agreement and to the great injury and inconvenience of these.defendants. On account whereof these defendants did, on said 30th day of September, 1896, discharge the plaintiff from their said employment, as hereinbefore admitted.
    By the reply the allegations of the answer were denied generally.
    Upon the trial without objection, so far as the record discloses, the plaintiff first introduced his evidence. Three hundred and forty-seven pages of the printed record are required to present to us the evidence and other things which were recited to the jury in the form of evidence. From the evidence it appears with much repetition that the plaintiff was absent from the defendants’ place of business on the days named in their answer. The plaintiff in advanee of the defendants’ evidence undertook to justify his absence by showing that it was in part for purposes consistent with his employment and in part in consequence of illness. Evidence was introduced by the defendants to show that the absence was not for purposes consistent with his employment nor on account of illness. There was no evidence to show the effect of the plaintiff’s absence on the business of the defendants.
    With enough amplification to make it entirely intelligible to the jury the following propositions were given for their guidance in determining the plaintiff’s right to recover: First, if the plaintiff’s absence from the defendant’s place of business was with reasonable excuse or justification it did not in law warrant the defendants in terminating the contract of employment, and to defeat a recovery it was incumbent on the defendants to show not only the absence but also that it was without reasonable excuse. Second, that to defeat a recovery the defendants were bound to show not only that the plaintiff was absent without reasonable excuse, but, further, that his absence occasioned actual injury- to their business. A verdict was returned for the plaintiff which was followed by a judgment which the circuit court affirmed.

      Messrs. Meyer & Mooney, for plaintiff in error.
    In the determination of the question submitted, the jury was instructed to regard the absence of the plaintiff below from his employment on the said days, and which absence constitutes the defense set forth in the answer, as substantially admitted. The said absence, we submit, was such breach of his contract of employment as would justify his. discharge from service, unless lie should show, by proper evidence, that it Avas either authorized by his employers, or involuntary and unavoidable on his part. Such being the case, the burden of so showing was upon the plaintiff below. The court, however, charged to the contrary, in the folloAving terms: “Now in reference to this matter, I say to you, gentlemen, that the burden of establishing that the absence of the plaintiff on those days was without excuse or reasonable justification rests, upon the issues presented in this case, in the judgment of the court, upon the defendants to establish by a preponderance of the evidence.”
    This, it is submitted, Avas clearly error to the prejudice of the plaintiffs in error. Fowler v. Ice Company, 1 McArthur, 14; Harrington v. Iron Works Co., 119 Mass., 82; Naylor v. Iron Works Co., 118 Mass., 317; Libhart v. Wood, 1 Watts & Serg., 265; 30 Georgia, 612; 163 N. Y., 351.

      Messrs Sanders cC- Wilson, for defendant in error.
    An employer always has the power to dismiss his employe from his service, but if such discharge be in violation of the contract of service, he must respond in damages. Hence the master must plead and prove justification for his act, because it is in contravention of the terms of his contract. The courts uniformly hold that the discharge must be justified. Mere absence, unless prolonged, is not sufficient. Wood’s Master and Servant, 226. The burden of proof is therefore upon the master to establish the justification where he relies upon it to defeat the claim.
    Mr. Beckwith himself testifies that Mr. Garrett’s absence on those days was unnoticed and not objectionable, and he did not seek to justify his discharge for this absence, but for the “drunkenness and carousing.” His absence on the 19th was “unavoidable”
      and “involuntaryHis absence was not unreasonable of itself in view of the contract — the nature of the business and the effect upon the business. Hence the burden still remained upon the master to show that such absence was without cause or justification.
    The authorities are numerous and uniformly sustain this proposition. Milligan v. Furniture Co., 111 Mich., 629; Morris v. Taliaferro, 75 Ill. App., 182; Stevens v. Stephens, 14 Utah, 255; Babcock v. Appleton Mfg. Co., 93 Wis., 124; Crawford v. Mail Pub. Co., 47 N. Y. Supp., 747; McMullan v. Dickinson Co., 63 Minn., 405; Green v. Washburn, 7 Atl. Rep. (Mass.), 390.
    Upon this branch of the charge touching master’s interests, we call attention to the entire charge.
    Wood’s Master and Servant, page 216, says: “That every case (discharge) must be determined by the contract — the nature of the business and the effects upon the master’s interests.”
    Did Mr. Garrett’s absence of two days, all told, injuriously affect the master’s interests? If such absence was without reasonable excuse, did it injure the business of the defendants?
    This was, in effect, saying that not every absence without permission or excuse will justify the master in discharging his servant. If this particular absence was without excuse by reason of the circumstances attending it, still you will inquire further as to the effect upon the master’s interest. If it did not injure the master’s interests and the absence of itself was not unreasonable in length, then, etc. Wood’s Master and Servant (2 ed.), 211.
    The defendants were manufacturers of horse blankets and lap robes, and Mr. Garrett, as their salesman, came in contact with dealers in hardware and harness men. Hence there was nothing in Mr. Garrett’s conduct incompatible with the nature of Beckman’s business, though he occasionally drank a glass of beer.
    Mr. Beckman testified that he and his father drank it habitually, or when he felt like it, and that he had invited Mr. Garrett to drink with him on numerous occasions.
    It was customary for the firm to drink. To charge Mr. Garrett with misconduct on account of drunkenness on those days, and that the same injuriously affected their business, devolves upon the defendants the burden of proving it.
    Mr. Beckman testified that he did not discharge Mr. Garrett for absence; that his absence was all right, but it was the injurious effect upon his business which would result from his habitual drunken-. ness.
    He waived all objections to his absence on the 18th and 19th, and again waived it on the 29th for absence on the 28th, and he so states in his testimony. Hence he relied upon the effects upon his business of Garrett’s misconduct to justify his discharge, and it was not error to so direct the jury.
   Shauck, J.

The correct rule as to the obligation of the plaintiff under his contract of employment appears to have been given to the jury in the general terms of the charge. And the instruction that the defendants in order, to justify a rescission of the contract before the expiration of the time, were required to show the unjustifiable absence of the plaintiff from their place of business seems to be unobjectionable. But it is insisted that the defendants should not have been required to show that such unreasonable absence resulted in actual injury to their business. There being no evidence of such actual injury, the instruction upon that point was equivalent to a direction to return a verdict for the plaintiff. Such direction might have been given with entire propriety if proof of actual injury was, in a correct view of the law, essential to the defense.

It is, however, manifest that in giving this instruction the trial judge failed to discriminate between a cause of discharge and a cause of action. The established rule upon the subject is that the employer may discharge for misconduct whose necessary tendency is to the injury of his business. If the discharge had been for the plaintiff’s misconduct while present and attending to his duties, nothing more could have been required of the defendants in that respect than to show misconduct having such tendency. Such was the inevitable tendency of the plaintiff’s absence from the place where his duties were to be performed. Nothing should have been required of the defendants below except to show that the admitted absence of the plaintiff was without reasonable excuse. Jerome v. Queen City Cycle Co., 163 N. Y., 351.

Judgment reversed.

Burket, Davis and Price, JJ., concur.


author: Davis, J.

text:
    Hoffman, Admx., et al. v. Fleming.

      Action on bond of executor — Bond approved by probate court— Bond recites appointment of executor and directions as to execution of administration by executor — Sureties on such bond estopped to deny due appointment of executor.

    In an action on the bond of one who was appointed executor by the probate court, the bond being approved by said court and containing a recital that the principal therein had been appointed executor of the last will and testament of the testatrix, and also containing a condition that “the said principal as executor as aforesaid shall administer according to law and the will of the testatrix all her goods, chattels, rights and credits, and the proceeds of all her real estate that may be sold for the payment of her debts or legacies which shall or may come to the possession of the executor or to the possession of any other person for her,” and upon which appointment and giving of said bond assets of the estate passed into the hands of the principal as such executor, the sureties on such bond will be estopped from showing in defense that their principal was not duly appointed as executor, or that the will was not duly probated.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Franklin county.
    This action was begun by tbe defendant in error in tbe court of common pleas by a petition in wbicb sbe says that one Margaret H. Fleming died in April, 1891, leaving a last will and testament wbicb was filed and admitted to probate by tbe probate court of Franklin county on tbe first of May, 1891; that one Ripley C. Hoffman was named in tbe will as executor thereof, and on tbe first day of May, 1891, be was appointed by said probate court as executor of tbe said will, and that upon bis appointment as sucb executor be gave a bond with sureties, executed in tbe form prescribed by law, of wbicb tbe following is a copy:

      “We, Ripley C. Hoffman, Zeno C; Payne, P. F. Hoffman, James Fullerton, Mary Walden, Michael Haviland and John G. McGuffey, are bound unto the state of Ohio, in the penal sum of one hundred and fifty thousand dollars, to the payment of which we hereby jointly and severally obligate ourselves. Witness our hand and seals, this first day of May, A. D. 1891. '
    “The condition of the above obligation is such, that, whereas the above bound Ripley 0. Hoffman has this day been appointed by the probate court of Franklin county, in the state of Ohio, executor of the last will and testament of Margaret H. Fleming, late of Brooke county, West Virginia, deceased.
    “Now, if the said Ripley 0. Hoffman, as executor as aforesaid: First, shall make and return to the court, on oath, within three months, a true inventory of all the moneys, goods, chattels, rights and credits of the testator, which are by the laws to be administered, and which shall have come to his possession or knowledge; and also if required by the court, an inventory of the real estate of said deceased; Secondly, shall administer according to law, and to the will of the testator, all her goods, chattels, rights and credits, and the proceeds of all her real estate, that may be sold for the payment of her debts or legacies which shall at any time come to the possession of the executor, Ripley 0. Hoffman, or to the possession of any other person for her; And, thirdly, shall render, upon oath, a just and true account of his administration within eighteen months, and at any other times when required by the court or the law; and failing to do so, for thirty days after he shall have been notified of the expiration of the time by the probate judge, lie shall receive no allowance for services, unless the court shall enter upon its journals that such delay was necessary and reasonable; then this obligation to be void; otherwise in full force and virtue in law.
    “Attest:
    “Ripley C. Hoffman, (Seal)
    “Zeno C. Payne, (Seal)
    “F. F. Hoffman, (Seal)
    “James Fullerton, (Seal)
    “Mary Walden, (Seal)
    “Michael Haviland, (Seal)
    “John G. McGuffey, (Seal)
    “Filed and approved this first day of May, A. D. 3891.
    Lorenzo D. Hagerty, Probate Judge.”
    Plaintiff further alleged that a large amount of assets of the estate of Margaret H. Fleming came into the possession of the said Ripley C. Hoffman, as such executor, and that on the 19th of March, 1894, he filed his first account in the probate court, upon which the sum of $26,552.34 was found to be in his hands; that on the 30th of November, 1896, he filed his second account in the probate court, and the sum of $22,761.62 was found to be in his hands due to the estate, and that he had not filed any further account. The petition also alleges that under item thirty-one (31) of the said last will and testament of Margaret H. Fleming the plaintiff was entitled to a legacy of $1,500, and that on the fifth of August, 1897, said probate court found that there was due to the plaintiff, as legatee, under the said will, the sum of $1,-239.09, with interest from the first day of February, 1896, and also interest on $261.91 from the twenty-first day of February, 1896, to the ninth of July, 1896, and ordered the executor to pay the plaintiff these amounts, and that the plaintiff has at various times demanded that the executor pay the legacy and the sums so found due her, but that he has neglected and refused to pay the same or any part thereof. And she prays judgment against the said Ripley C. Hoffman as executor and the other defendants as sureties upon the executor’s bond, for the amount so found due her.
    The second amended answer of the defendants, for the first defense, admits that Margaret H. Fleming died as alleged, leaving a last will and testament, which was filed and pretended to be admitted to probate by the probate court of Franklin county, and that the will named Ripley C. Hoffman, as executor thereof, and that the court pretended to appoint him executor of the will and that he attempted to qualify as said executor, and attempted to act in that capacity toward the settlement of the estate of Margaret H. Fleming, deceased, and that he executed the bond set forth in the petition, with the conditions stated in the petition, and that a large sum of money came into the possession of said Ripley C. Hoffman, as pretended executor, as assets of the estate of Margaret H. Fleming, deceased; also admits the amounts stated in the petition, and admits that item 31 of the last will and testament of Margaret H. Fleming is as stated in the petition, and that the probate court did find sums alleged to be due to the plaintiff, but they deny that the conditions of the bond have been broken or that any obligation rests upon the defendants by reason thereof, because the said Margaret H. Fleming was at the time of her death a resident of Brooke county in the state of West Virginia, and that the statute of that state relative to the probating and recording of wills of persons dying testate and domiciled in said state, provides as follows: “Section 22. The county court shall have the power and jurisdiction to hear proof of and admit wills to record as follows: First. In the county wherein the deceased at the time of his death had a mansion house or known place of residence, or, second, if he had no such house or place of residence, then in the county wherein any real estate devised thereby, is situated.”
    The defendants further say that Margaret H. Fleming never resided in Franklin county, Ohio; that she did not own any real or personal estate in said Franklin county; that she never was in business in Franklin county; that she did not at the time of her death owe any debt or debts to any person whomsoever residing in the state of Ohio, and no creditor of hers asked to have her said will proven, probated and admitted to record in said Franklin county, and no such debtor or debtors asked for letters of administration on her estate in Franklin county, and that her will was never admitted to probate in Brooke county, West Virginia, and that when application was made to the probate court of Franklin county for proving and admitting said will the said probate court knew, and the record of its proceedings in that behalf pretending to admit said will to probate show, and the said probate court found, that said Margaret H. Fleming, deceased, was, at the time of her death, a resident of and domiciled in Brooke county, West Virginia. So that the defendants say that the probate court of Franklin county, Ohio, had no jurisdiction or power to take proof of the execution of said will, no power or authority to probate and order the same to be recorded, and no power or jurisdiction to issue letters testamentary thereof to Ripley 0. Hoffman, or any other person, on the estate of said Margaret H. Fleming, deceased, and had no jurisdiction or power to require any bond to be given by said Ripley C. Hoffman, and it had no power or jurisdiction to approve such bond and that the bond is null and void and they deny that they have any liability thereon.
    In the second defense the defendants repeat substantially the same facts alleged in the first defense, and claim that by reason thereof no rights vested in the plaintiff as legatee under said will.
    The third and fourth defenses are not material to the questions considered in the opinion.
    The second amended reply to the amended answer denies that the record of the proceedings of the probate court of Franklin county, Ohio, admitting to probate and record the will of Margaret H. Fleming, shows that the said probate court knew or found that said testatrix was, at the time of her death, a resident of Brooke county, West Virginia. Plaintiff says that Margaret H. Fleming owned real estate and chattel property in Franklin county at the time of her death, was engaged in the prosecution of business in Franklin county, and owed debts in Franklin county, and that one of her creditors asked to have said will probated in Franklin county, and the plaintiff denies each and every other allegation and statement made in the first defense except such as are averred in her petition in reply.
    For reply to the second defense the plaintiff admits that the statutes of West Virginia, relating to the probating and recording of wills of persons dying testate and domiciled in the state, are substantially as set forth. She admits that no letters testamentary were ever issued in West Virginia and no administration had there. But the plaintiff denies that at the time the will was offered for probate in Franklin county, Ohio, the probate court knew and found, or that the records of said court show, that Margaret H. Fleming was, at the time of her death, a resident of West Virginia. The plaintiff alleges that she was at the time of her death engaged in the prosecution of business in Franklin county, owned real estate and chattel property there, owed debts there, and that one of her creditors asked to have the will probated there, and denies each and every other allegation in the second defense except such as are averred in the petition.
    The plaintiff demurred to the first and second defenses of the answer of the defendants, which demurrer was overruled.
    The cause was tried in the common pleas court upon the issues thus joined and the testimony adduced by the defendant in error, including certain record evidence, in the records of the probate court of said county, relating to the probating of said will and the appointment of said executor, the accounts of said executor therein filed and certain oral testimony, and the plaintiffs in error moved the court to dismiss the action bcause on the testimony thus offered and the facts admitted in the pleadings the defendant in error was not entitled to judgment against the plaintiffs in error and had no right to prosecute and maintain the action. This motion was sustained and judgment was entered against the defendant in error and in favor of the plaintiffs in error, and the petition of the defendant in error was dismissed at her costs. The defendant in error filed a motion for a new trial which was overruled, and error was prosecuted in the circuit court of said county against the plaintiffs in error, in which court the judgment of the court of common pleas was reversed upon the ground that the said court erred in overruling the demurrer of the defendant in error to the first and second defenses of the amended answer, and because it further erred in sustaining said motion at the close of the testimony of defendant in error. And the plaintiffs in error now prosecute their petition in error in this court to reverse the judgment of the circuit court and to be restored to all the rights that they have lost by reason of said reversal.

      Mr. G. J. Marriott; Mr. 'John G. McGuffey; Mr. F. F. Hoffman and Mr. Thomas H. Ricketts, for plaintiffs in error, cited the following authorities:

      Pennywit v. Foote, 27 Ohio St., 600; Spier v. Corll, 33 Ohio St., 236; Paine v. Mooreland, 15 Ohio, 435; Van Fossen v. State, 37 Ohio St., 317; Hamilton v. Merrill, 37 Ohio St., 682; Homan v. Brinkerhoff, 1 Denio, 184; Faulkner, In matter of, 4 Hill (N. Y.), 598; Steamboat General Buell v. Long, 18 Ohio St., 521; The Belfast, 74 U. S. (7 Wall.), 624; Norse v. Presby., 25 N. H. (5 Foster), 299; Gilliland v. Sellers, 2 Ohio St., 223; Eaton v. Badger, 33 N. H., 228; Mansley v. Robinson, 28 La. An., 793; Ponce v. Underwood, 55 Ga., 601; Lyles v. Bowles, 8 S. C., 258; Western U. T. Co. v. Taylor, 84 Ga., 408; Beverly v. Burke, 9 Ga., 440; Swiggert v. Harper, 4 Scam., 364; St. Louis S. C. Co. v. Sandoral C. Co., 111 Ill., 32; Frankel v. Saterfield, 19 Atl. Rep., 898; 12 Am. & Eng. Ency. Law (1 ed.), 311; Ream v. Wolls, 61 Ohio St., 131; Gilpin v. Williams, 25 Ohio St., 283; King v. Bell, 36 Ohio St., 460; Shroyer v. Richmond, 16 Ohio St., 455; Swearingen v. Morris, 14 Ohio St., 424; Manuel v. Manuel, 13 Ohio St., 458; 1 Curwen, 708; Barr v. Closterman, 1 Circ. Dec., 546; 2 C. C. R., 387; Carpenter v. Denoon, 29 Ohio St., 379; Murfree on Official Bonds, Par. 362; Earle v. Crum, 47 Miss., 165; Steward v. Morrison, 38 Miss., 417; Atkinson, Ex parte, 40 Miss., 17; Crum v. Wilson, 61 Miss., 233; Brown v. Bradford, 30 Ga., 927; Hempstead v. Coste, 36 Mo., 437; Ames v. Maclay, 14 Iowa, 281; Dickson v. Bell, 13 La. An., 249; Miller v. Gasklus, 1 Smedes & M., 524; Beall v. Cochran, 18 Ga., 38; Adams v. Gleaves, 10 Lea (Tenn.), 363; Foster v. Wick, 17 Ohio, 250; Tyron v. United States, 32 C. T. C. L. 425; Brant on Suretyship, Par. 121; Boyd v. Swing, 38 Miss., 182; City v. Riley, 40 Miss., 488; Dickenson v. State, 20 Neb., 72; Bank v. Mixter, 124 U. S., 721; Coleman v. Beam, 32 How. Pr., 370; Cadwell v. Colgate, 7 Barb., 253; Carpenter v. Tursell, 100 Mass., 450; Tapley v. Goodsell, 122 Mass., 176; Converse v. Starr, 23 Ohio St., 491; McNeal v. Ross, 58 Ohio St., 707; Scobey v. Gano, 35 Ohio St., 550; 12 Am. & Eng. Enc. Law, 908; Cutts v. Haskins, 9 Mass., 543; Beckett v. Selover, 7 Cal., 215; 1 Chit. Cr. Law, 209; Stark. Cr. Pl., 65; King v. Yandell, 4 Term, 521; Limes v. Irwin, 16 Ohio St., 488; Bustard v. Dabney, 4 Ohio, 68; Woerner Am. Law of Administration, 464; 5 Ired. Law, 267; Booth v. Timony, 3 Dem. Surrogates Court, N. Y., -; Conant v. Newton, 126 Mass., 105; Olds v. State, 6 Blackf., 91; Wilson v. Hobday, 4 M. & S., 121; Com

      monwealth v. Jackson, 1 Leigh, 485; Sherry v. Foresman, 6 Blackf., 56; Byers v. State, 20 Ind., 47; Benedict v. Bray, 2 Cal., 251; Caffrey v. Dudgeon, 38 Ind., 518; Werner Probate Courts in America, star page, 323; Hoxie v. Small, 86 Me., 23; Devlin v. Smith, 89 N. Y., 470; Mohr v. Tulip, 40 Wis., 66; Epping v. Robinson, 21 Fla., 48; Douglass v. Scott, 5 Ohio, 195; Kelly v. State, 25 Ohio St., 567; Herman on Estoppel, 52; Adams v. Jeffries, 12 Ohio, 253; State v. Medary, 17 Ohio, 554; Myres v. Parker, 6 Ohio St., 501; Hall v. Williamson, 9 Ohio St., 17; State v. Cutting, 2 Ohio St., 1; State v. Corey, 16 Ohio St., 17; Carpenter v. Kent, 11 Ohio St., 554; Smith v. Huesman, 30 Ohio St., 662; Davis v. Davis, 11 Ohio St., 386; Walker v. Walker, 2 Re., 568; 4 W. L. M., 32; Sheldon v. Newton, 3 Ohio St., 494; Swazey v. Blackburn, 8 Ohio, 5; Speed v. Kelly, 35 Miss., 54; 1 Woerner on Am. Law of Administration, 205; Perry v. Railroad, 29 Kan., 420; Wallace v. Wallace, 2 Green Ch. Rep., 616; Sturdivant v. Neil, 27 Miss., 157; McNeal v. Ross, 1 O. S. C. D., 777; 39 W. L. B., 353; Moore v. Starks, 1 Ohio St., 369; Buchanan v. Roy, 2 Ohio St., 251; Fowler v. Whiteman, 2 Ohio St., 270; Callen v. Ellison, 13 Ohio St., 446; 12 Am. & Eng. Ency. Law (1 ed.), 306, note 5; Wildman v. Rider, 23 Conn., 172; Brownfield v. Weicht, 9 Ind., 394; Wickliffe v. Bailey, 5 Mon. (B.), 253; Riley v. Lowell, 117 Mass., 176; 12 Am. & Eng. Ency. Law (1 ed.), 306, note 5; Coleman’s Appeal, 75 Pa. St., 441, 460; Doctor v. Hartman, 74 Ind., 221; Mathie v. McIntosh, 40 Wis., 120; Thomson v. Steamboat, 2 Ohio St., 26; 12 Am. & Eng. Ency. Law (1 ed.), 308 and note 1; Elliott v. Piersol, 26 U. S. (1 Pet.), 328; Hickey v. Stewart, 41 U. S. (3 How.), 750; Thompson v. Whitman, 85 U. S. (18 Wall.), 157; Christmas v. Russell, 72 U. S. (5 Wall.), 290; Bissell v. Briggs, 9 Mass., 162; Pennywit v. Foote, 27 Ohio St., 600; Gary v. Larrimore, 2 Abb. (U. S.), 542; Scobey v. Gano, 35 Ohio St., 550; Gilliland v. Sellers, 2 Ohio St., 223; Thompson v. Springer, 9 Ga., 130; 1 Black on judgments, Secs. 218, 278, note; Adams v. Jeffries, 12 Ohio, 253; Maxsom v. Sawyer, 12 Ohio, 195; State v. McGehan, 27 Ohio St., 280; 1 Freeman on Judgments, Sec. 117; Fisk v. Norvel, 9 Tex., 13; Reed v. Wright, 2 G. Greene (Iowa), 15; Myers v. State, 19 Ind., 127; Macey v. Ticombe, 19 Ind., 135; Butler v. Wadley, 15 Ind., 502; Skelton v. Bliss, 7 Ind., 77; Ellis v. State, 2 Ind., 262; Marshall v. State, 8 Blackf., 162; State v. Lynch, 6 Blackf., 395; Spader v. Frost, 4 Blackf., 190; Martin v. Kennard, 3 Blackf., 430; Silver v. Grovenor, 4 Blackf., 15; Parker v. Henderson, 1 Ind., 62; State v. Inman, 7 Blackf., 225; Thompson v. Lockwood, 15 Johns., 256; Germond v. The People, 1 Hill (N. Y.), 343; Perry v. Hensley, 11 Mon. (B.), 381; Buckingham v. Bailey, 1 Smed. & M., 538; Tarbell v. Gray, 4 Gray, 444; Green v. Haskell, 21 Me., 180; Libby v. Main, 2 Fairfield, 344; Bridge v. Ford, 4 Mass., 641; Brockenborough v. Melton, 55 Tex., 193; Arnold v. Arnold, 62 Ga., 627; Tant v. Wigfall, 65 Ga., 412; Dequindre v. Williams, 31 Ind., 144, 456; Johnson v. Beazley, 65 Mo., 250; Shroyer v. Richmond, 16 Ohio St., 455; Abbott v. Coburn, 28 Vt., 663; Irwin v. Scriber, 18 Cal., 499; Quidort v. Fergeaux, 18 N. J. Eq. 472; Galpin v. Page, 18 Wall., 350; Randolph v. Bayne, 44 Cal., 366; Fisher v. Bassett, 9 Leigh, 119; 33 Am. Dec., 227, 231, notes; Bigelow on Estoppel, 361; Cutler v. Dickinson, 8 Pick., 385; 2 Bouvier’s Law Dic., 57; 19 Am. & Eng. Ency. Law (1 ed.), 173; Myers v. Smith, 50 Kan., 1; 3 Redfield on Wills, 2; Capper’s Will, In re, 85 Iowa, 82; Story Conflict of Law, Sec. 18; 1 Wait Actions and Defense, 10; 1 Am. & Eng. Ency. Law (1 ed.), 180; Norris v. Lapsley, 5 Cal., 47; Kerr v. Moon, 1 O. F. D., 114; 22 U. S. (9 Wheat.), 565; 24 Am. & Eng. Ency. Law (1 ed.), 574; Brown on Jurisdiction (2 ed.), 47; Page on Wills, Sec. 315; Bailey on Juris., Sec. 215a.
    • Mr. W. T. S. O’Hara; Mr. P. S. Lowry and Mr. M. E. Thrailkill, for defendant in error, cited the following authorities:
    Woerner’s Am. Law Admrs., Sec. 157; Swearingen v. Morris, 14 Ohio St., 424; Limes v. Irwin, 16 Ohio St., 488; Manuel v. Manuel, 13 Ohio St., 458; Booth v. Timony, 3 Den., 416; Jacques v. Horton, 76 Ala., 238; Varner v. Bevil, 17 Ala., 286; Hyman v. Gaskins, 5 Ired., 267; Gordon, In re, 50 N. J. Eq., 397; Shroyer v. Richmond, 16 Ohio St., 466; Bailey v. Bailey, 8 Ohio, 239; Railway Co. v. Mahoney, 15 S. W. Rep. 652; Johnston v. Smith, 25 Hun, 171; Chapman v. Brite, 23 S. W. Rep., 514; Paine v. Mooreland, 15 Ohio, 444; Dequindre v. Williams, 31 Ind., 444; Cox v. Thomas, 9 Grat., 323; Grignon v. Astor, 43 U. S. (2 How.), 319; Doe v. Smith, 1 Ind., 451; Sprague v. Litherberry, 2 O. F. D., 574 ; 4 McLean, 442; Rhode Island v. Mass., 37 U. S. (12 Pet.), 718; Railroad Co. v. Belle Center, 48 Ohio St., 273; Reed v. Reed, 81 Ky., 267; Broderick Will case, 88 U. S. (21 Wall.), 503; Hollrah v. Lasance, 63 Ohio St., 58; Black on Judgments, Sec. 274; Mitchell v. Holder, 8 Bush, 362; Douglass v. Scott, 5 Ohio, 198; Hauenstein v. Gilles

      pie, 19 So. Rep., 673; Norton v. Miller, 25 Ark., 108; Iredell v. Barbee, 9 Ired., 250; Williams v. Woodman, 73 Me., 163; Gray v. State, 78 Ind., 68; Insurance Co. v. Findley, 59 Ia., 591; Shalter & Ebling’s App., 43 Pa. St., 83; Burnett v. Nesmith, 62 Ala., 261; 2 Herman on Estoppel, Sec. 992; Bigelow on Estoppel (5 ed.), 373; Risley v. Howell (Vil.), 64 Fed. Rep., 453; Portland v. Paving Co., 72 Am. St. Rep., 713; McChord v. Fisher, 13 B. Mon., 193; Field v. Van Cott, 15 Abb. (N. Y.) Pr., 349; Williamson v. Woodson, 73 Me., 163; Wayman v. Taylor, 1 Dana (Ky.), 527; Jones v. Gallatin Co., 78 Ky., 491; Stockton v. Turner, 7 J. J. Marsh. (Ky.), 192; Levi v. Dorn 28 How. (N. Y.) Pr., 217; Kellar v. Beeler, 4 J. J. Marsh. (Ky.), 655; Love v. Rockwell, 1 Wis., 382; Cutler v. Dickinson, 8 Pick. (Mass.), 386; Fake v. Whipple, 39 Barb., 339; Cadwell v. Colgate, 7 Barb., 253; Bank v. Wagner, 33 La. An., 732; Carlon v. Dixon, 12 Ore., 144; Johnson v. Weatherwax, 9 Kan., 75; Nun v. Goodlett, 10 Ark., 89; McDermott v. Isabell, 4 Cal., 113; State v. Stark, 75 Mo., 566; Daniels v. Tearney, 102 U. S., 415.
   Davis, J.

We do not decide the question, mooted in this case, whether the probate court of Franklin county might admit to probate the will of a testator domiciled in another state, in any other way than by admitting to record an authenticated copy of the will, executed and proved according to the laws of the state where the testator was domiciled; but in order to make entirely clear the grounds upon which the judgment of this court is placed it is deemed proper to define the general jurisdiction of the probate court. By the constitution it is made a court of record, and it is declared that it shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, and the settlement of accounts of executors, administrators and guardians. Constitution, Art. 4, Secs. 7 and 8. Prima facie, then, whatever is done by the probate court in these matters is done by the proper authority or tribunal. Following the provisions of the constitution, the general assembly has provided, Revised Statutes, section 524, that the probate court shall have exclusive jurisdiction to take the proof of wills, and to admit to record authenticated copies of wills, executed, proved, and allowed in the courts of any other state, territory or country; to grant and revoke letters testamentary and of administration; and to direct and control the conduct and to settle the accounts of executors and administrators, and to order the distribution of estates. These statutory provisions do not, and can not, limit or enlarge the. jurisdiction of the probate court in the matters mentioned. Whatever is done, therefore, by the probate court in the matters of probate of wills, appointment of executors and administrators and directing and controlling the accounting of such executors and administrators is presumptively within the jurisdiction of the court. To use the language of this court in Shroyer v. Richmond, 16 Ohio St., 455, paragraph 7 of the syllabus, “the record showing nothing to the contrary, it will be conclusively presumed, in all collateral proceedings, that such order was made upon full proof of all the facts necessary to authorize it.” Just.here, however, inasmuch as the application for letters testamentary, the journal entry admitting the will to probate and the recitals in the bond, all describe the will as the last will and testament of Margaret H. Fleming, “late of Brooke county, West Virginia, deceased,” the plaintiffs in error insist that on the face of the record it appears that the probate of the will, the appointment of the executor, the approval of the bond, and all subsequent proceedings were void, the testatrix being a non-resident of the state.

We have consulted all of the standard dictionaries of the English language and' several of the best law dictionaries, and we do not find that the word “late” is ever used in the sense of last, but always, when used as here, in the sense of recently or for-: merly. We have found but one case, Beckett v. Selover, 7 Cal., 215, in which it seems to have been construed in the sense of “last,” while in Holmes v. Custance, 12 Ves. Jr., 279, where the description was “Robert Holmes, late of Norwich,” Sir, William Grant, Master of the Rolls, said: “Everyone knows that the sense of date’ is not recently, but formerly, of Norwich.” So that it cannot be said here, with certainty, that the record impeaches itself by clearly showing that the testatrix was not a resident of the jurisdiction which admitted her will to probate and appointed an executor thereof. We cannot know what evidence may have been adduced in the probate court of Franklin county, Ohio, to show that the last residence of the testatrix was within the jurisdiction of the court. Neither the verity of the record nor the jurisdiction of the court to do what it did do, was challenged in any direct proceeding. Gan it be done now in this action? This is an action by a legatee under the will against the executor and his sureties, on the executor’s bond. The recital of the bond, which is in due form, is that Ripley C. Hoffman has been appointed, by the pro* bate court of Franklin county, Ohio, executor of tJie last will and testament of Margaret H. Fleming. One of the conditions of the bond is that the “said Ripley C. Hoffman as executor as aforesaid shall administer according to law and the will of the testator” all her goods, chattels, rights and credits, etc. Thus-the facts that Margaret H. Fleming died leaving a will and that Ripley C. Hoffman, the principal in the bond, was the executor of that will, are formally" stated and made the basis of the contract. As was said by this court long ago, “In cases where the condition of a deed has reference to any particular thing, the obligor shall be estopped to say there is no such thing.” For example, if a condition be that a man and his wife shall do an act, the man will be estopped to say he has no wife; or if the condition be to perform the covenants of an indenture, the obligor is estopped to say there is no indenture. Douglass v. Scott, 5 Ohio, 194, 198; Herman on Estoppel, Secs. 634, 636. The obligors cannot be allowed to blow hot and cold; in one breath obtaining control of the estate by «vouching for the official character of the principal, recognizing the will under which he was appointed and holding themselves bound for due administration according to law and the will, and in the next breath denying the will and fiduciary relation of the principal and maladministering the property of legatees with impunity. It does not lie in their mouths to say that there was no legal validity in the acts by which they obtained the possession of the property. Their bond, given under the order of, and approved by, the court, gave color to the executorship of Hoffman, and after the estate has been administered by him for years, under the orders of the court appointing him, and in accordance with the will, until a deficit occurs, it is too late for the obligors on the executor’s bond to say that the court had no jurisdiction to probate the will or to appoint the executor; that there is no will and that there never was an executor. Kelly v. State, 25 Ohio St., 567, 577, 578.

Nevertheless the counsel for the plaintiff in error strenuously and ably argue that the sureties may-show that the appointment of the executor was without jurisdiction, unauthorized by law and void, and that they may thus be discharged from liability on their bond. It is not to be denied that this position has some support among reported cases, notably in Mississippi and Georgia; but it seems to us that the weight of authority is distinctly and overwhelmingly against it. Indeed, if the doctrine of estoppel may be applied to sureties on an administration bond, or a guardian’s bond, so that by its recitals they may not be allowed to deny that their principal has been duly appointed (Bigelow on Estoppel, 373; Herman on Estoppel, Sec. 634), it is difficult to perceive how a want of jurisdiction in the appointing court could alter the rule. The effect of the recitals is just the same, and it would be just as inequitable not to estop the obligors in the case where the appointment was made without jurisdiction, and assets obtained thereby, as in a case where it was made irregularly by a wrongful exercise of jurisdiction. Accordingly it was said in New York that “the execution of the bond precludes both principals and sureties from gainsaying the surrogate’s jurisdiction in any proeeedings for the assets which the appointment and bond enabled the principal to receive.” People v. Falconer, 2 Sandf. 81, 83; (Superior Ct.) approved in Johnston v. Smith, 25 Hun (N. Y.), 171. In Harbaugh v. Albertson, 102 Ind., 69, when in replevin proceedings before a justice of the peace, a surety on the replevin bond by his execution thereof enabled the plaintiffs in the replevin to obtain the possession of the property in controversy, it was held that “the surety should be estopped from setting up as a defense to an action on the bond, that the justice before whom the action was commenced, had no jurisdiction over the persons of the parties.”

In McCord v. Fisher’s Heirs, 13 Mon. (B.), 193, it was held that an administration granted in a different county from that in which the decedent was domiciled at his death, and in which the decedent had no estate, conferred no authority; but that a bond given by such administrator is binding upon him and his sureties, not as a statutory, but as a common law, bond, being upon good consideration and not against the policy of the law. In Iredell v. Barbee, 9 Iredell (N. C.), 250, it was held that where a court has no power to appoint a guardian, but does appoint one, and he gives bond with sureties and takes possession of the estate of the ward, it is not competent for any of the obligors in such bond to object to its validity on the ground of want of power in the court to make the appointment.

In McDermott v. Isbell, 4 Cal., 113, the Supreme Court of California held that “a party who avails himself of the process of an inferior court cannot escape the responsibility of his own act upon the ground that such tribunal has no jurisdiction over the subject-matter in controversy. Consequently a party who sues out a wait of replevin from a justice of the peace having no jurisdiction, and obtains property, in an action on the replevin bond cannot set up as a defense the want of jurisdiction of the justice. Neither can he be allowed to show that the property so replevined was his own. The conditions of the bond are to prosecute the suit with success or to return the property.”

It ivas held in Arkansas, Norton v. Miller, 25 Ark., 108, that it is irregular and erroneous for the probate court of one county to appoint a guardian for minors who reside with their property in another county; and that both the principal and the sureties on the guardian’s bond are estopped from denying the truth of the recitals in the bond that the principal ivas appointed and that they will not be permitted to deny the jurisdiction of the court making the appointment.

In Cutler v. Dickinson, 8 Pick., 386, it appeared on examining the records of the probate office, that there was no decree, nor any other evidence of the appointment of the administrator; yet in a suit on the bond ©f the administrator it wras held that the obligors were estopped to deny that the principal vas appointed administrator.

In Pennsylvania, where an act of assembly prohibits registers from granting original letters of administration on the estates of persons who have been dead twmnty-one years, unless ordered by a register’s court, it wras held that letters of administration granted in violation of this act were not absolutely void to all intents and purposes, and that, notwith.sfáuding such prohibition, an administrator acting under such letters and his sureties, are liable on their bond to the parties interested in the estate. The court, per Lowrie, C. J., say: “Even if we should regard the letters as void, as affecting the estate, we should not regard them as void, as affecting the accountability of the persons acting under them. We should then treat the administrator as a usurper, and his sureties as aiding him in his acts, and then we would not allow them to set up the usurpation as a protection against accountability for it; for a man cannot take advantage of his own wrong, or set it up as a defense.” Foster v. Commonwealth, 35 Pa. St., 148. This case was followed in Shalter and Ebling’s Appeal, 43 Pa. St., 83.

The People v. Norton, 9 N. Y., 176, was a case in which a court having general jurisdiction of all cases of trust made an irregular and erroneous appointment of a trustee, no notice of the proceeding having been given to the ee_stuis que trust, and this was set up as a defense in an action on the trustee’s bond. The court, per Buggies, C. J., said that: “This is an objection which neither the trustee nor his surety can be allowed to make. Lynch (the trustee) got possession of the trust estate under the proceedings by color of which he claimed to be trustee, and Norton voluntarily undertook as his surety that he should faithfully administer the trust. If the proceeding was irregular for want of notice to the children of Mrs. Lynch, they might object to it in a proper manner for that cause; but Lynch, after having obtained the property upon the pretense, of being the trustee, cannot be permitted to deny his liability to account as such. The, defendant who became his surety in order that he might take the trust property, is for a like reason precluded from denying Ms liability as surety.” This case was cited with approval in Bassett v. Crafts, 129 Mass., 513, in which it was held that the sureties on a trustee’s bond, cannot in an action against them on the bond, impeach the validity of the principal’s appointment.

In Gray v. State, 78 Ind., 68, upon an extended review of authorities, it was held that the surety on a guardian’s bond, executed to enable him to sell his ward’s real estate, is estopped, after the sale and receipt of the money, to deny the appointment of the guardian. The same doctrine runs through the following cases: Fridge v. State, 3 Gill & Johnson (Md.), 103; People v. Huson, 78 Cal., 154; Middleton v. State, 120 Ind., 166; Williamson v. Woodman, 73 Me., 163; State v. Stark, 75 Mo., 566; Mayor v. Harrison, 30 N. J. L., 73.

In conclusion, it seems to me that the decision of this court in Shroyer v. Richmond, 16 Ohio St., 455, is decisive of this case, in more than one aspect of it. That was also an action upon a bond, the bond of a guardian. In that case also the general jurisdiction of the probate court was not attacked, but it Was claimed that the appointment was made without authority of law; and in that case also it was claimed that the bond was invalid because the appointment itself was a nullity. On the trial, “to maintain the issues on their part, the defendants offered to prove to the jury, by parol testimony, that at the time of the appointment of Coblentz and Shroyer respectively, as guardians of Long, he was neither a minor, á lunatic, insane person, an idiot, nor a deaf and dumb person, incapable of taking charge of his affairs; and that there was no testimony offered before the court, at the time of making of either of said appointments, to show that Long was a minor, lunatic, insane person, idiot, or deaf and dumb person, incapable of taking charge of his affairs ; and that he was not brought before the court; and that there was no jury summoned by the court, nor inquest held by the jury, nor a jury sworn for that purpose, nor any testimony offered, before a jury os the judge, to show that he was a deaf and dumb person, incapable of taking charge of his affairs; nor any verdict of a jury finding him to be such a person.” In other words, the defendants, the sureties on the bond, while conceding that the probate court was the proper tribunal to appoint guardians, just as in this case it is the proper tribunal for the probate of wills and the appointment of executors, yet claimed that the statutes in relation to the appointment of guardians had not been complied with, as it is claimed here. Yet in that case the court held, as already noted in this opinion, that “an order made by a probate court, in the exercise of jurisdiction, cannot be collaterally impeached. The record showing nothing to the contrary, it will be conclusively presumed, in all collateral proceedings, that such order was made upon full proof of all the facts necessary to authorize it.” It will be noted that the language of the court is “in the exercise of jurisdiction,” not in the proper exercise of jurisdiction. It was further held that “in a suit on a guardian’s bond, containing a recital of the appointment of such guardian by the proper authority, the obligors are estoppéd to deny the fact thus recited, or to question the validity of the appointment.” The phrase “the proper authority” in the syllabus, was evidently not intended to limit application of the rule as to estoppel, but was used rather with reference to the facts of the case; for Scott, J., ih the opinion says: “This bond recites the appointment of Coblentz, by the proper authority, as guardian of Long. By executing this bond, they obtained for their principal the possession and control of his ward’s property, and cannot now be permitted to escape liability to account therefor by denying the recitals of their own bond. They are estopped to do so.” Evidently it was in the mind of the court that the obtaining of possession of assets through the medium of a court which had general jurisdiction over the subject-matter, although it may have been improperly, or even unlawfully, exercised, gave color to the alleged appointment of the guardian and aided in the perpetration of a wrong which should be prevented by estoppel. And that in our opinion is precisely the situation in this case.

See also State v. Piatt, 15 Ohio, 15, in which it was held that where a clerk of the court of common pleas had been appointed, had given bond and had entered upon the duties of his office, neither he nor his sureties could show that he had failed to qualify by taking the oath of office; and that they will not be permitted to defend themselves upon the ground that he was a mere usurper.

Our conclusion- is that, both upon reason and authority, the plaintiffs in error should be estopped, from questioning the rights of the defendant in error under the will, and from disputing the validity of the appointment of Hoffman as executor, and from denying tbeir liability as sureties on the executor’s bond. The judgment of the circuit court, reversing the judgment of the court of common pleas, is

Affirmed,

Burket, Shauck and Price, JJ., concur.