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. Cycle Co., 163 N. Y. 351, 57 N. E. 485. Judgment reversed.

BURKET, DAVIS, and PRICE, JJ., concur.

(66 Ohio St. 143)

HOFFMAN et al. v. FLEMING. (Supreme Court of Ohio. April 22, 1902.) EXECUTOR'S BOND-ACTION-ESTOPPEL OF

SURETIES.

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 execator 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.1

(Syllabus by the Court.)

Error to circuit court, Franklin county. Action by one Fleming against Ripley C. Hoffman and others. Judgment for defendants was reversed in the circuit court, and they bring error. Affirmed.

This action was begun by the defendant in error in the court of common pleas by a petition in which she says that one Margaret

1 See Executors and Administrators, vol. 22, Cent. Dig. 2541; Estoppel, vol. 19, Cent. Dig. § 47 [a, aa, el.

H. Fleming died in April, 1891, leaving a last will and testament which was filed and admitted to probate by the probate court of Franklin county on the 1st of May, 1891; that one Ripley C. Hoffman was named in the will as executor thereof, and on the 1st day of May, 1891, he was appointed by said probate court as executor of the said will; and that upon his appointment as such executor he gave a bond, with sureties, executed in the form prescribed by law, of which the following is a copy:

"We, Ripley C. Hoffman, Zeno C. Payne, F. 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 C. 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 C. 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 C. 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, he 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. McGuffy. [Seal.]

"Filed and approved this first day of May, A. D. 1891. 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 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 5th 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 1st day of February, 1896, and also interest on $261.91 from the 21st day of February, 1896, to the 9th 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: "Sec. 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 resi

dence, 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, W. Va.; 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, W. Va. 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 C. 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. third and fourth defenses are not material to the questions considered in the opinion.

The

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, W. Va. 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 ad

mits 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 admin- | istration 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 because, 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.

G. J. Mariott, John G. McGuffey, F. F. Hoffman, and Thomas H. Ricketts, for plaintiffs in error. W. T. S. O'Hara, P. S. Lowry, and M. E. Thrailkill, for defendant in

error.

DAVIS, J. (after stating the facts). We do not decide the question, mooted in this 64 N.E.-5

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. Const. art. 4, §§ 7, 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 (Rev. St. § 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 cannot 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 nonresident 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 "formerly." We have found but one case

(Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237) in which it seems to have been construed in the sense of "last," while in Holmes v. Custance, 12 Ves. 279, where the description was "Robert Holmes, late of Norwich," Sir William Grant, master of the rolls, said: "Every one knows that the sense of 'late' 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. Can 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 probate court of Franklin county, Ohio, "executor of the 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; Herm. Estop. §§ 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 plaintiffs 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, Estop. 373; Herm. Estop. § 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 proceedings for the assets which the appointment and bond enabled the principal to receive." People v. Falconer, 2 Sandf. 81, 83, approved in Johnston v. Smith, 25 Hun, 171. In Harbaugh v. Albertson, 102 Ind. 69, 1 N. E. 298, 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 McChord v. Fisher's Heirs, 13 B. Mon. 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, 31 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 writ 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 replevied was his own. The conditions of the bond are to prosecute the suit with success, or to return the property." It was 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 was 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 of the administrator, it was held that the obligors were estopped to deny that the principal was 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 21 years, unless ordered by a register's court, it was held that letters of administration granted in violation of this act were not absolutely void to all intents and purposes, and that, notwithstanding 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. Com., 35 Pa. 148. This case was followed in Shalter's Appeal, 43 Pa. 83, 82 Am. Dec. 552. 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 cestuis que trust; and this was set up as a defense in an action on the trustee's bond. The court, per Ruggles, 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 his 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, 41 Am. Rep. 545, 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 & J. 103, 20 Am. Dec. 463; People v. Huson, 78 Cal. 154, 20 Pac. 369; Middleton v. State, 120 Ind. 166, 22 N. E. 123; Williamson v. Woodman, 73 Me. 163; State v. Stark, 75 Mo. 566; Mayor, etc., v. Harrison, 30 N. J. Law, 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, a 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 or the judge to show that he was a deaf and