The following opinion was filed June 20, 1932:
Fowler, J.
This case is a sequel to that of Will of Leonard, 202 Wis. 117, 230 N. W. 715, wherein Charles A. Ingram as executor and trustee was adjudged on accounting to pay $16,667.17 to Frank E. Leonard and Roy Leonard, as remaindermen upon termination of a life estate to the widow of the testator. For a statement of evidentiary facts indirectly involved in addition to those herein stated, we refer to the opinion in that case. This suit is founded on the judgment finally entered in that case. In the course of his handling of the estate Ingram gave three consecutive bonds, each running to the county judge, and on the entry of that final judgment this suit was brought by the county judge for the benefit of the remaindermen.
The first bond, on which Henry Goodrich and M. Hurl-burt were sureties, was dated March 1, 1906, was in the penal sum of $15,000, and was conditioned upon Ingram’s performance of his duties as executor. The next, on which the Fidelity and Deposit Company of Maryland was surety, was dated September 6, 1907, was in the penal sum of $20,000, and was conditioned upon Ingram’s performance of his duties as trustee. The last, on which S. B. Ingram and E. Oesterreicher were sureties, was dated January 23, 1917, was in the penal sum of $20,000, and was conditioned upon Ingram’s performance of his duties as executor and trustee. The trial court held that the sureties on all the bonds were each liable to the extent of the penal sum for the [95]*95whole amount adjudged due from Ingram, and that the different sureties should contribute to payment of the judgment in the proportionate amount to which the penal sum of the bond on which they were liable bore to the total of the penal sums.
(1) The bondsmen on the first bond, given as executor, claim that their liability is only for the conduct of Ingram as executor, and that Ingram ceased to act as executor when the second bond, given as trustee, was approved by the court. Under the facts here involved this contention cannot be upheld. “The executor’s liability continues until the estate is fully administered, and the sureties’ as well.” The liability of both principal and surety continues, until there has been a final accounting as executor. Kellogg v. Stroud, 166 Wis. 12, 17, 163 N. W. 261, and cases cited. Ingram never submitted any final account as executor, or any other account for that matter, until the proceeding was had upon which the judgment herein sued upon was based. Nor was any order ever made assigning the property held by Ingram as executor to Ingram as trustee. When an executor is also made a trustee, his functions, duties, and liabilities as executor do not cease until his final account as executor is fully settled and the estate fully administered. Wallber v. Wilmanns, 116 Wis. 246, 93 N. W. 47.
(2) The sureties on the first bond contend that the liability of Ingram was increased by agreement between him and the parties interested in the estate and that this relieved them from responsibility under the familiar rule applicable to sureties on bonds or other contracts given in ordinary business transactions. We consider that this rule is not applicable to the instant case because it was beyond the power of the beneficiaries to increase the liabilities of Ingram as executor. His liabilities, as executor are fixed by law, and his obligation as executor is to account for funds and property coming into his hands as executor. It is true that, [96]*96pursuant to arrangement between the parties interested in the estate, land was sold and the proceeds of the land came into his hands, and his liability to the parties was thereby increased. But this was a personal liability, not a liability as executor. The will did not give Ingram power to sell any land. No occasion to sell land to pay detits or expenses of administration arose. Under these circumstances his only liability as executor was to account for such personal property as came into his hands as executor, and that liability was no more increased by his acquiring funds through sale of lands through agreement of the parties than it would have been had he incurred liability to the parties for borrowing money from them.
(3) It is contended by the sureties on the executor’s bond that the second bond was given to replace the first, and that the mere filing and approval of the second bond operated to release them from their obligation under the first bond. In Richter v. Estate of Leiby, 101 Wis. 434, 77 N. W. 745, a second bond was given by a trustee with the express purpose and intention of supplanting a prior bond given as trustee and releasing the sureties thereon. It was held that “county courts, in absence of express statute (as now exists in sec. 4281&, Stats. 1898), have no power, either by taking a new bond or otherwise, to discharge sureties from liability for either past or prospective misconduct of an executor, administrator, or trustee, mid that the taking of the new bond . . . did not release or discharge . . . [the surety on the earlier bond], but was merely cumulative.” Sec. 4281&, Stats. 1898, continued in force until 1919, when by ch. 655, Laws of 1919, a statute practically the same as the present sec. 204.15 (5) was substituted for it. But although sec. 4281 & was in force at the dates on which the two later bonds herein involved were executed, there was no compliance or attempt to comply with the statutory conditions for [97]*97procuring a substitution and release, and in absence of such compliance the liability of the executor continued as if no statute existed. Under the rule of the Leiby Case, the contention here under consideration cannot be upheld.
(4) It is contended by the surety on the second bond that the bond signed by it only obligated it to be responsible for Ingram’s conduct as a trustee appointed by and subject to the control of the court; that the will did not create a trust, and the county court is without jurisdiction to appoint a trustee except a trust be created by will; and that the order appointing Ingram as trustee is therefore void and their bond is void and they are in no wise accountable for his misconduct. The provision of the will claimed by respondent to have created a trust is the second paragraph which left “the sole use, benefit and control” of all the testator’s property to his wife during her life; provided that she should have the “exclusive control and management thereof and the income therefrom for her support;” and provided that if the income thereof should not prove sufficient for her support she should have “the right and power to sell and dispose of such amount thereof” as should be necessary therefor. The third paragraph devised and bequeathed to the testator’s sons the property remaining at the wife’s death. These paragraphs merely created a life estate in the widow with remainder over to the sons. They did not create a trust estate, and the jurisdiction of the county court to administer trusts or appoint trustees is limited to trusts created by will. Sec. 253.03, Stats.
The county court is a court of limited jurisdiction. It was held in Crawford County v. Le Clerc, 3 Pin. 325, 327, that the county courts, “being mere creatures of the statute, have no powers except such as are derived from the statute, and it must appear upon the face of their proceedings that they acted within the powers granted. If this does not [98]*98appear, all they do is coram non judice and void.” This is cited with approval in Estate of Anson, 177 Wis.
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The following opinion was filed June 20, 1932:
Fowler, J.
This case is a sequel to that of Will of Leonard, 202 Wis. 117, 230 N. W. 715, wherein Charles A. Ingram as executor and trustee was adjudged on accounting to pay $16,667.17 to Frank E. Leonard and Roy Leonard, as remaindermen upon termination of a life estate to the widow of the testator. For a statement of evidentiary facts indirectly involved in addition to those herein stated, we refer to the opinion in that case. This suit is founded on the judgment finally entered in that case. In the course of his handling of the estate Ingram gave three consecutive bonds, each running to the county judge, and on the entry of that final judgment this suit was brought by the county judge for the benefit of the remaindermen.
The first bond, on which Henry Goodrich and M. Hurl-burt were sureties, was dated March 1, 1906, was in the penal sum of $15,000, and was conditioned upon Ingram’s performance of his duties as executor. The next, on which the Fidelity and Deposit Company of Maryland was surety, was dated September 6, 1907, was in the penal sum of $20,000, and was conditioned upon Ingram’s performance of his duties as trustee. The last, on which S. B. Ingram and E. Oesterreicher were sureties, was dated January 23, 1917, was in the penal sum of $20,000, and was conditioned upon Ingram’s performance of his duties as executor and trustee. The trial court held that the sureties on all the bonds were each liable to the extent of the penal sum for the [95]*95whole amount adjudged due from Ingram, and that the different sureties should contribute to payment of the judgment in the proportionate amount to which the penal sum of the bond on which they were liable bore to the total of the penal sums.
(1) The bondsmen on the first bond, given as executor, claim that their liability is only for the conduct of Ingram as executor, and that Ingram ceased to act as executor when the second bond, given as trustee, was approved by the court. Under the facts here involved this contention cannot be upheld. “The executor’s liability continues until the estate is fully administered, and the sureties’ as well.” The liability of both principal and surety continues, until there has been a final accounting as executor. Kellogg v. Stroud, 166 Wis. 12, 17, 163 N. W. 261, and cases cited. Ingram never submitted any final account as executor, or any other account for that matter, until the proceeding was had upon which the judgment herein sued upon was based. Nor was any order ever made assigning the property held by Ingram as executor to Ingram as trustee. When an executor is also made a trustee, his functions, duties, and liabilities as executor do not cease until his final account as executor is fully settled and the estate fully administered. Wallber v. Wilmanns, 116 Wis. 246, 93 N. W. 47.
(2) The sureties on the first bond contend that the liability of Ingram was increased by agreement between him and the parties interested in the estate and that this relieved them from responsibility under the familiar rule applicable to sureties on bonds or other contracts given in ordinary business transactions. We consider that this rule is not applicable to the instant case because it was beyond the power of the beneficiaries to increase the liabilities of Ingram as executor. His liabilities, as executor are fixed by law, and his obligation as executor is to account for funds and property coming into his hands as executor. It is true that, [96]*96pursuant to arrangement between the parties interested in the estate, land was sold and the proceeds of the land came into his hands, and his liability to the parties was thereby increased. But this was a personal liability, not a liability as executor. The will did not give Ingram power to sell any land. No occasion to sell land to pay detits or expenses of administration arose. Under these circumstances his only liability as executor was to account for such personal property as came into his hands as executor, and that liability was no more increased by his acquiring funds through sale of lands through agreement of the parties than it would have been had he incurred liability to the parties for borrowing money from them.
(3) It is contended by the sureties on the executor’s bond that the second bond was given to replace the first, and that the mere filing and approval of the second bond operated to release them from their obligation under the first bond. In Richter v. Estate of Leiby, 101 Wis. 434, 77 N. W. 745, a second bond was given by a trustee with the express purpose and intention of supplanting a prior bond given as trustee and releasing the sureties thereon. It was held that “county courts, in absence of express statute (as now exists in sec. 4281&, Stats. 1898), have no power, either by taking a new bond or otherwise, to discharge sureties from liability for either past or prospective misconduct of an executor, administrator, or trustee, mid that the taking of the new bond . . . did not release or discharge . . . [the surety on the earlier bond], but was merely cumulative.” Sec. 4281&, Stats. 1898, continued in force until 1919, when by ch. 655, Laws of 1919, a statute practically the same as the present sec. 204.15 (5) was substituted for it. But although sec. 4281 & was in force at the dates on which the two later bonds herein involved were executed, there was no compliance or attempt to comply with the statutory conditions for [97]*97procuring a substitution and release, and in absence of such compliance the liability of the executor continued as if no statute existed. Under the rule of the Leiby Case, the contention here under consideration cannot be upheld.
(4) It is contended by the surety on the second bond that the bond signed by it only obligated it to be responsible for Ingram’s conduct as a trustee appointed by and subject to the control of the court; that the will did not create a trust, and the county court is without jurisdiction to appoint a trustee except a trust be created by will; and that the order appointing Ingram as trustee is therefore void and their bond is void and they are in no wise accountable for his misconduct. The provision of the will claimed by respondent to have created a trust is the second paragraph which left “the sole use, benefit and control” of all the testator’s property to his wife during her life; provided that she should have the “exclusive control and management thereof and the income therefrom for her support;” and provided that if the income thereof should not prove sufficient for her support she should have “the right and power to sell and dispose of such amount thereof” as should be necessary therefor. The third paragraph devised and bequeathed to the testator’s sons the property remaining at the wife’s death. These paragraphs merely created a life estate in the widow with remainder over to the sons. They did not create a trust estate, and the jurisdiction of the county court to administer trusts or appoint trustees is limited to trusts created by will. Sec. 253.03, Stats.
The county court is a court of limited jurisdiction. It was held in Crawford County v. Le Clerc, 3 Pin. 325, 327, that the county courts, “being mere creatures of the statute, have no powers except such as are derived from the statute, and it must appear upon the face of their proceedings that they acted within the powers granted. If this does not [98]*98appear, all they do is coram non judice and void.” This is cited with approval in Estate of Anson, 177 Wis. 441, 188 N. W. 479, and Guardianship of Figi, 181 Wis. 136, 139, 194 N. W. 41. We are of opinion that the county court was without jurisdiction to appoint a trustee in the instant case. Such trust as was created was created by the acts of the parties, the widow and the sons of the testator, who agreed among themselves that Ingram should retain possession and manage and conserve the estate for the benefit of all the parties.
It is contended by the respondent that the surety on the second bond is estopped from attacking the validity of his appointment as trustee, and 24 Corp. Jur. p. 1093, § 2623, is cited in support of this contention. The paragraph cited relates to executors and administrators, and examination of the cases cited in support of the text shows that in no case was the court without jurisdiction of the subject matter. The paragraph refers to appointments that are voidable, not to those which are void. “Where the probate court is a court of limited jurisdiction a lack of jurisdiction may be shown collaterally. The appointment may be attacked collaterally when the record affirmatively shows that the court granting the letters acted without jurisdiction, and indeed any appointment which is void, as distinguished from voidable merely, may be collaterally attacked.” 23 Corp. Jur. p. 1089, § 247. It is fundamental that any order or judgment may be collaterally attacked that is void for want of jurisdiction of the court of the subject matter of the action. Mathie v. McIntosh, 40 Wis. 120; Rape v. Heaton, 9 Wis. 301, *328; Melia v. Simmons, 45 Wis. 334; Guardianship of Reeve, 176 Wis. 579, 186 N. W. 736; Wanzer v. Howland, 10 Wis. 8.
However, although the order appointing Ingram as trustee is void it does not follow that the bond is void. It was given as a statutory bond in conformance with sec. [99]*99323.01, Stats., and as a statutory bond would not support an action against the bondsman, but if it is good as a common-law bond, action upon it lies. The case of Dudley v. Rice, 119 Wis. 97, 95 N. W. 936, not only supports this proposition but it makes the bond in suit valid as a common-law bond. In that case the bond sued upon was given as a guardian’s bond. The order appointing the guardian had finally been held void for want of jurisdiction on motion to vacate it made to the court that made the appointment. In suit on the bond the court held that as the order of appointment was void the bond was void as a statutory bond and would not support an action as such, but that it was valid as a common-law bond and as such would support the suit. The bond was held good as a common-law bond because by its terms it bound the principal to settle his account with the court “or with the ward if she be of sound mind.” As the ward was of sound mind the sureties were held responsible for his failure to account to her. In the instant case we have a similar provision. The condition of the bond is that the principal shall “adjust and settle his accounts with such (the county) court at the expiration of his trust and pay and deliver to the person or persons entitled thereto all balances, money, and property in his possession and for which he is liable as trustee.” The bond in suit by its terms bound the principal to pay to the remainder-men the funds held by him as trustee, and the principal was a trustee by act of the widow and remaindermen although not by order of the court, and the sureties are responsible for his default in that respect.
( 5 ) The sureties on the second bond also contend that• the giving of the third bond released them, and. urge in, addition to the argument of the sureties on the first bond in support of their contention that taking the second bond discharged them from liability, that the county court made an order expressly releasing them from liability. It does [100]*100not appear that such an order was made in the Leiby Case, supra, but under the rule of that case, if it were assumed that the county court properly appointed Ingram as trustee, the county court had no power to discharge the sureties on the second bond except upon compliance with sec. 204.15, Stats., and that statute was not complied with. If it be assumed that the bond was a common-law bond, the county court certainly had no jurisdiction to discharge the surety. So however the bond is considered the order of the county court purporting to discharge the surety is void. The re-maindermen had no part in procuring the order of discharge and did not consent that the surety should be discharged. In any view of the case we are of opinion that the surety continued bound.
The second bond not being valid as a statutory bond, the reason on which the liability of the sureties on the executor’s bond is held to continue after the execution of the second bond does not apply. And it is doubtless true that the parties in interest under a common-law bond may by agreement between themselves relieve the sureties by substituting another bond with intent thereby to relieve them. But the remaindermen are the parties for whose protection the second bond was given, and they did not agree or consent to or know anything about the giving of the third bond, and the principal and surety could not by agreement between themselves relieve the surety. The liability of the surety on the second bond therefore continued notwithstanding the execution of the third bond.
(6) The surety on the second bond also contends, as did those on the first bond, that by selling the land and leaving the proceeds in Ingram’s hands, the principal and the parties interested in the estate by agreement between themselves increased the liability of the principal and it is thereby released from liability on the bond as a common-law bohd. The so-called “letters of trust” issued to Ingram by the [101]*101county court, although void, measure the extent of Ingram’s liability as trustee created by the act of the parties in interest. It provides that Ingram shall “reinvest in good and sufficient securities ... all moneys which may accumulate or be derived from the estateThis provision conforms to the petition of the parties pursuant to which the letters were issued. It thus appears that it was originally contemplated by the parties creating the trust that Ingram was to be a trustee of all moneys derived from the estate and the sale price of the lands was so derived. There was thus no subsequent increase of the liability originally assumed by the trustee. The receipt of the sale price of the land therefore did not operate to discharge the surety from its bond.
(7) The sureties on-the two later bonds contend that they are released because the persons interested in the estate agreed among themselves that the widow should receive, instead of the entire income of the estate as the will provided, $100 and later $65 per month and payments thereafter were made to her upon such basis. Such an agreement was made by the widow in consideration of the re-maindermen abandoning a threatened contest of the probate of the will. The claim is that this agreement was void as against public policy under the rule of Will of Dardis, 135 Wis. 457, 462, 115 N. W. 332; Will of Rice, 150 Wis. 401, 136 N. W. 956, 137 N. W. 778; and Graef v. Kanouse, 205 Wis. 597, 238 N. W. 377; and as Ingram was made trustee pursuant to this agreement, the trust and the bond as trustee were void also. It is true that the county court has no jurisdiction to execute an agreement of those interested in a will disposing of an estate contrary to the terms of the will. Estate of Sipchen, 180 Wis. 504, 193 N. W. 385. As the court had no jurisdiction as above held to appoint a trustee because no trust was created by the will, it does not make the appointment any more void that it was made pursuant to such an agreement, even if the agreement [102]*102was void, or the bond any more void as a statutory bond. 'However, it is stated in the Sipchen Case, supra, p. 512, that although the county court has no jurisdiction to enforce such an agreement, referring to an agreement made after the death of the testator when all the parties know of the contents of the will, “the parties interested . . . have a right ... to make such disposition of their shares by contract or otherwise as to' them may seem proper, and such disposition may be given legal effect by proper proceedings or in an action in a court of competent jurisdiction.” But regardless of this, the agreement of the parties in fact made Ingram a trustee independent of court action, and, as above held, the bond of the surety as a common-law bond holds the surety responsible for the trustee’s default.
(8) The sureties also contend that if they are responsible at all it is only for Ingram’s handling of the estate in accordance with the terms of the will, and they should have credit for such sum as the full net income of the estate exceeded the amounts paid to the widow during her lifetime. This contention is met, as is the one next above considered, by the consideration that the bond as a common-law bond covered the defaults of Ingram as a trustee of whatever funds come into his hands through agreement of the parties independent of the terms of the will or the order of the court.
(9) The above disposes of the contentions of the sureties that they are entirely discharged from liability, but the extent of the liability of the several sets of sureties remains for consideration. We will first take up the liability of the first set. It is mentioned above that funds came into Ingram’s hands upon sale of land through an agreement of the parties interested in the estate. The parties all agreed to Ingram’s selling the land and holding the proceeds to be handled as the other funds of the estate were handled. But these funds did not come into his hands as executor, and the [103]*103sureties on the first bond are only liable for such funds as come into his hands as executor. What is said under (2) above shows that the executor as such was not liable for these funds, and his bondsmen are not liable for his failure to account for them. The judgment below included these funds in the amount for which all the sureties were held responsible. This was error as,to the sureties on the first bond. Forbes v. Allen, 166 Mass. 569, 44 N. E. 1065, is sufficient authority to cite in support of this position, if any is needed. In that case a trust was created by a will for the benefit of a son of the testator, who was given an additional bequest. The son and the executor of the will arranged that the executor should hold the additional bequest in trust for the son. The sureties on the executor’s bond were held not responsible for the failure of the executor to account for the bequest, though held responsible for his failure to account for the original trust fund.
There were also included in the amount for which the sureties on the several bonds were held liable the $4,000 inventoried value of bank stock and the $400 inventoried value of other stock in Ingram’s hands. The judgment on which this action is based required manual delivery of this stock to the remaindermen. The stock was produced and tendered in court upon trial of the case. Demand for its delivery was made upon Ingram prior to commencement of this suit and Ingram failed to deliver it. For this breach of his conduct the sureties are responsible, but the tender into court should have been accepted, and the sureties’ liability for this breach is limited to the decrease in value of the stock, if any, between the times of the demand and the tender into court. The total judgment for which the sureties on the first and the two later bonds are responsible should be reduced by $4,400 less the amount stated.
(10) The sureties on the second and third bonds contend that their liability should be reduced by the amount [104]*104received by Ingram upon sale of the real estate. To this we cannot agree. It is above held that the surety on the second bond is liable on that bond as a common-law bond for Ingram’s conduct as trustee of a trust created by the parties as distinguished from a trust created by will. The proceeds of the land came into his hands as a result of the creation of that trust and because he was made by the parties a trustee of those proceeds. We consider that the surety on the second bond is responsible for the return of these funds as well as the others in Ingram’s hands. This applies to the sureties on the third bond also, as that bond as a common-law bond binds them for Ingram’s conduct as trustee of a trust created by the parties. If they were bound on the bond as an executor’s bond only, they would be released to the same extent as the sureties on the first bond.
(11) The extent of the liability of the sureties on each bond is measured by the funds in the hands of Ingram at the time of its execution and what came into his hands thereafter, with the limitation above indicated as to the surety on the first bond given as executor. Thus the liability of the surety on the third bond is limited to the funds in Ingram’s hands when the bond was executed and such if any as came into his hands thereafter; the liability of the surety on the second bond is limited to the amount that was in, his hands at the time that bond was executed and such if any as came into his hands thereafter, and the liability of the surety on the first bond as executor is limited to the funds that came into his hands as executor. The second bond is cumulative to the first as to the amount of the funds existing at its execution and subsequent acquisitions thereto, and the third to the first, and the second as to the funds existing at the time of its execution and subsequent acquisitions thereto. As to the plaintiff, each surety is liable for the full extent of the liability adjudged against him. The cumulative and continuing features of the bonds pre[105]*105vent full application of the rule contended for by the sureties which obtains in case of successive official bonds, which holds each of the several bondsmen during a period responsible for only such defaults as occurred during the period of the bond on which he is surety, but we are of opinion that it should be applied to the extent of holding each not responsible for defaults that occurred previous to the execution of his bond.
We believe the above covers in a general way the contentions of the parties, although .no mention has been made of the manner in which the points have been raised, whether in refusal to receive evidence, in refusal to amend pleadings to state additional defenses, in overruling demurrers to answers, or what not. The record in the case is voluminous. The printed case comprises over 450 pages. The brief of the defendant surety company comprises 125 pages and contains about 125 citations of authority. We believe the case is properly disposed of by well established principles and the few adjudicated cases of this court above cited.
By the Court.- — The judgment of the circuit court is reversed for further proceedings and final disposition in accordance with the opinion.