Mr. Chief Justice Bailey
delivered the opinion of the Court:
The errors assigned in this case in the Appellate Court presented four grounds upon which the defendant sought to obtain a reversal of the judgment of the Circuit Court, viz.:
1. That the failure of the guardian to comply with the order of the Probate Court of Cook county was not a breach of the condition of the bond upon which the suit was brought.
2. That the remedy by suit on said bond, at least as against the defendant, is barred by the Statute of Limitations.
3. That the order of the Probate Court of March 4,1880, was without jurisdiction and therefore void.
' 4. That the Circuit Court erred in sustaining a demurrer to the defendant’s fourth plea.
The only one of these propositions considered or passed upon by the Appellate Court seems to have been the first, and that proposition being sustained, was held to be conclusive of the litigation, so as to render a consideration of the other questions presented by the assignment of errors unnecessary. Said court thereupon reversed the judgment of the court below, and by refusing to enter a remanding order, made said judgment of reversal a final determination of the suit. The plaintiffs, who are the appellants here, insist that the Appellate Court was in error, and that not only the point expressly ruled upon by that court, but all of said propositions, should have been decided adversely to the defendant, and that the judgment of the Circuit Court should have been affirmed. It will thus be seen that all the questions presented by the assignment of errors in the Appellate Court are open for discussion here, and they will be considered in the order in which they are above stated.
The first of these questions arises upon the face of the declaration. The contention is, that no breach of the condition of the writing obligatory sued on is alleged, and therefore that the plaintiffs have failed to show any right to recover by their declaration. The only breach alleged consists of the failure, neglect and refusal by the guardian to pay over to his ward the sum of $55,141.10 found due March 4,1880, by the Probate Court of Cook county and ordered to be paid. It is said that because the condition of the bond obligated the guardian, among other things, at the expiration of his trust, to settle his accounts in the County Court of Cook county, or with his wárd, or his legal representatives, and pay to his ward such sum as should be found due on such settlement, a settlement in the Probate Court was not within the terms of the condition, and therefore that a failure to pay the sum found due on such settlement was no breach.
If the only obligation imposed by the condition of the bond had been, to-make settlement in the County Court and to pay over to the ward the sum found due on such settlement, there might perhaps he some force in the view thus urged. But the terms of the condition are not thus limited. Manifestly the settlement- contemplated need not necessarily be made in the County Court, as by the express terms of the condition, it might be made with the ward himself or with his legal representatives, and when so made, the condition provided for the payment by the guardian to his ward of the sum thus found due.
But the condition contained another and much broader provision which, in our opinion, obligated the guardian to pay over to his ward the sum found due upon, an accounting had before any tribunal having competent jurisdiction to state the accounts between the guardian and ward, and that was the condition that the guardian should “faithfully discharge the office and trust of such guardian according to law.” The law fixing the duties of guardians, in the discharge of their office and trust, as it stood at the time of the execution of said bond and as it now stands, required that the guardian, “at the expiration of his trust, shall pay and deliver to those entitled thereto, all the money, estate and title papers in his hands, as guardian, or with which he is chargeable as such.” R. S. 1874, chap. 64, sec. 15. The performance of this duty necessarily involved an accounting, either with the ward, or before some judicial tribunal having competent jurisdiction and authority to investigate the guardian’s accounts and ascertain the balance due the ward. Upon such accounting, before any competent tribunal, it became the duty of the guardian, in the proper discharge of his office and trust, to pay over to his ward the balance found due, and only by such payment could he perform the obligation imposed by his bond, to faithfully discharge the office and trust of guardian according to law.
If the accounting had been before a court of chancery instead of the Probate Court of Cook county, can there be any doubt that the payment of the amount thus found due would have been within the purview of this condition ? The duty to pay over the balance in his hands would arise, whenever, in any form or in any forum, that balance was ascertained and determined in such way as to be binding and conclusive upon both him and his ward.
There can be no doubt that said Probate Court had jurisdiction to settle the accounts between the guardian and his ward. Prior to July 1, 1877, County Courts were vested by law with jurisdiction in all matters pertaining to the appointment of guardians and the settlement of their accounts. 1 Starr & Curtis’ Stat. 718. By the act establishing Probate Courts in all counties having a population of one hundred thousand or over, which became operative July 1, 1877, and under which the Probate Court of Cook county was organized, jurisdiction in matters pertaining to the appointment of guardians and the settlement of their accounts was conferred upon them, and guardianship matters pending in the County Courts w'ere ordered to be transferred to such Probate Courts when organized, and they were given jurisdiction to complete all unfinished business in relation thereto. Ibid. 732. By that statute, the matter of the present guardianship became transferred to said Probate Court, and that court acquired jurisdiction, upon the termination of said guardianship, to settle the accounts between the guardian and his ward.
In determining the sufficiency of the declaration, therefore, that is to say, whether a breach of any of the conditions of the bond is assigned, we may assume the jurisdiction of the Probate Court, and the conclusive effect upon both guardian and ward of its adjudication as to the state of the guardian’s accounts, and the balance due his ward. Now it is apparent, from what has been said, that if the condition providing for a settlement of said accounts in the County Court is disregarded, or rather, if it be admitted that no breach of that condition is assigned, the allegation of a settlement in the Probate Court, and a failure, neglect and refusal to pay over to the ward the amount found due by that court, is a sufficient assignment of a breach of the condition that the guardian should faithfully discharge the office and trust imposed upon him according to law. And we are unable to perceive 'why the breach of that condition of the bond does not furnish as ample a basis for a recovery as would a breach of any of the other conditions therein contained.
The second point raised is, that the present action is barred by the Statute of Limitations. The action being on a bond, it manifestly comes within the provisions of section 16 of the statute, which provides that actions on bonds, etc., shall be commenced within ten yeai’S next after the cause of action accrued. The present suit was brought May 24, 1888, and the only controversy is, as to when the cause of action for which it was brought must be deemed to have accrued. If, as the defendant insists, the cause of action accrued, within the meaning of the statute, immediately upon the ward’s attaining his majority, viz., August 25, 1874, or at farthest, at the date of the statement of account by the guardian, by which he claimed a balance due in his favor of $3088.97, viz., May 22, 1876, more than ten years had elapsed, and the action is barred. If, on the other hand, as the plaintiffs claim, the cause of action now sought to be enforced did not accrue until the statement of said accounts by the Probate Court and the entry of the judgment of that court finding the amount due and ordering its payment, viz., March 4,1880, said period of ten years had not elapsed at the date of the commencement of the present suit, and the action is not barred.
It is true the duty was imposed upon the guardian, not only by the condition of his bond, but by the express provisions of the statute, upon the expiration of his trust, which in this case was when his ward attained his majority, to settle his accounts and pay over to his ward the balance of money remaining in his hands. And it seems to be well settled that a failure on the part of the guardian, at the expiration of his trust, or at most within a reasonable time thereafter, to settle and pay over, constituted a breach of the condition of .the bond, and entitled the ward to sue at once for the recovery of the balance 'of his money remaining in his guardian’s hands. It may be conceded that as to such breach the statute commenced to run from the time the breach was committed.
But while the ward had a right to treat the failure to settle and pay over as a breach of the bond and bring suit at once, he was not bound to take that course. The bond secured not merely-the payment of the money in the guardian’s hands, but the discharge by him of every duty and the performance of •every act imposed or required by law in the matter of bringing the trust relation to a close. It secured a settlement of accounts, either with the guardian in person or before some competent tribunal, in which the burden of all affirmative acts would rest upon the guardian, and in which he would be required to establish the justness of his accounts by proper vouchers or other competent proof; and it also secured the payment by the guardian to the ward of the balance found due on such settlement. All this is clearly implied by the condition to faithfully discharge the office and trust of guardian according to law.
A suit brought by the ward before an accounting had been had and a balance ascertained, would have imposed upon him the disadvantage of being compelled to take upon himself the burden of establishing affirmatively the indebtedness from his guardian to him, and that too in a forum which would be but illy adapted to the investigation and settlement of complicated accounts. Instead of taking that course, he was at liberty to rely upon his bond as securing a settlement of accounts by his guardian, and the payment of the sum found due on such settlement ; and a settlement having in fact been subsequently made before a court of competent jurisdiction and a balance .ascertained^ the failure of the guardian to pay such balance in obedience to the order of said court, constituted a new substantive breach of the condition of the bond, dating from the time of the guardian’s default in the performance of said order. The order of the Probate Court was entered March 4, 1880, and the guardian was not in default in respect to it until thirty days thereafter. The cause of action based on such default accrued within less than ten years next prior to the commencement of the suit, and therefore it is not barred by the statute.
The next contention is, that the order of the Probate Court finding the sum of $55,141.10 due from the guardian to his ward was without jurisdiction and therefore void. The claim that said court was without jurisdiction is based upon that part of the evidence which tends to show, that, in re-stating the guardian’s accounts, the court charged him with large sums of money which came into his hands after his ward had attained his majority, and therefore after his office and trust as guardian had expired.
It is of importance to notice in this connection that the verdict of the jury was the result of a peremptory instruction by the court to find for the plaintiffs, and to assess their damages at the sum of $55,141.10, with interest thereon from the date of the entry of said order of the Probate Court. In view of such instruction, all we are called upon to determine is, whether the evidence tended to establish a state of facts which would have warranted a different result. Every inference which the jury might have legitimately drawn from the evidence before them must, for the purpose of deciding the question now under consideration, be regarded as admitted.
The evidence before the jury bearing upon this question consisted, first, of the order of the Probate Court finding the amount due from the guardian to his ward, and, second, the document offered on behalf of the defendant, purporting to be a re-statement of the guardian’s account, showing the several items of debits and credits, and striking the balance and showing the amount due. It becomes essential, in order to a proper understanding of said evidence, to determine the true relation of the last named document to the record of the proceedings of the Probate Court in the matter of said guardianship, and its value as tending to show the principles upon which the Probate Court restated said account, and the nature of the various items with which the guardian was therein charged.
We are unable to concur with the counsel for the plaintiffs in the view suggested by them that said paper is to be regarded as a mere private memorandum prepared by the probate judge to which to refer in determining the balance due from the guardian to his ward, but it is, in our opinion, as essentially a record of the judicial action of the court in the settlement of the guardian’s accounts, as is the order finding the balance due and requiring its payment. Said paper was produced from the files and records of the Probate Court in the matter of said guardianship, and consists of a re-statement of said accounts, showing each item of debits and credits, and the balance found to be due, and at the foot of it appears the following memorandum and official signature of the probate judge: “Approved in open court, March 4, 1880. J. C. Knickerbocker, Probate Judge, Cook County, Ills.” In the order of the Probate Court of March 4,1880, said re-statement of account is referred to and is there expressly approved by the court and ordered recorded. Under these circumstances, it can not be doubted that said document is a part of the judgment of said court. While the order entered upon said re-statement of account evidences the judgment of the court as to the general balance due, said re-statement furnishes evidence as to the nature of each of the several items embraced in said account and of the judgment of the court upon each item. Said document may therefore be resorted to for the purpose of determining what the judgment of said court was, and whether the matters upon which it assumed to adjudicate were within its jurisdiction, just as freely and to the same extent as said order itself may be.
It will be seen by reference to said re-statement, that the sum of $55,141.10 found due from the guardian to his ward was made up of $26,346.66 of debits, less $3253.95 of credits in the account relating to transactions prior to the majority of said ward, and of $43,249.13 of debits and $11,200.74 of credits in the post-majority account. In said post-majority account the guardian is charged with various sums of money received by him at dates subsequent to the time his ward became of age, and if said account is not on its face conclusive of the fact, it at least tends to show that said moneys were not the proceeds of estate of his ward already in his hands as guardian, but were funds which came into his hands for the first time at the dates at which he was charged therewith, and with which he had nothing whatever to do during his 'ward’s minority.
Said ward, as is abundantly shown by the record, became of age August 25, 1874. Under date of September 4, 1874, the guardian is charged with “Cash from sale of 83 feet on Indiana Av., $21,700.” Under date of March 1, 1875, he is charged with, “Loan from Sheldon & Waterman, $12,000.” Under subsequent dates he is charged with money received from various parties, aggregating $953.84. There is no pretense that any proceedings were had for the sale of the ward’s lands prior to his majority, and the inference is at least a fair one that the moneys which came into the guardian’s hands from the sale of the ward’s lands were the proceeds of land sold and conveyed by the ward after he became of age and legally capable of making such conveyance. So of the money charged as resulting from a loan nearly six months after the ward became of age. If that was a loan on the ward's credit and for his benefit, and it is difficult to see how it could have been anything else, it was strictly a post-majority transaction, and the money thus obtained was not a part of or the proceeds of any estate in the guardian’s possession during the minority of his ward, but was strictly a fund over which he obtained control for the first time after his ward became of age. It thus appears to be a fair inference from the record of the Probate Court, that most if not all of the items charged against the guardian in the post-majority account consisted of funds belonging to his ward, which came into his hands and possession after the ward became of age, and over which he had had no previous control. The question then is, whether the Probate Court, in settling the guardian’s accounts, had any jurisdiction to take into consideration such post-majority dealings between the guardian and his ward.
The office and trust of guardianship of a minor is one which can exist only during the minority of the ward, and when he becomes of age, the guardianship is thereby ipso facto terminated. On this subject, the rule is laid down by Mr. Schouler thus: “As the relation of guardian and ward usually exists for merely temporary purposes, it is plain that, when those purposes are fulfilled, the trust must terminate. The object of guardianship, in the case of infants, is fulfilled when the infant becomes of age, for he is then free and competent, under the law, to transact hiis own business and control his own person. No guardian, therefore, of an infant, whether in socage, natural, testamentary, chancery, or probate guardian, can act in such capacity after the ward is twenty-one years old or has reached majority; but should present his account and settle with his ward. ” Schouler on Domestic Relations, 93. In Overton v. Beavers, 19 Ala. 625, it is said: “The powers, authority and duties of a guardian cease when the ward attains the age of majority. The court, from which he derived his appointment, may retain jurisdiction over him to compel an account, and settle his administration as guardian, after his ward has attained his majority. But this is a matter only between him and the court, and the jurisdiction only subsists for a special purpose.”
There is nothing in our statute changing the usual rule in this respect, or indicating an intention to prolong the reíation, except for purposes of settlement, beyond the majority of the ward, but rather the contrary. The office of guardian of minors, ex vi termini, continues only during minority. The statute in relation to guardians and wards, after providing that males, until they attain the age of twenty-one years, and females, until they attain the age of eighteen years, shall be considered minors, authorizes County Courts to “appoint guardians of minorsand a subsequent section provides that testamentary guardianship of a child may continue during its minority. No provision is to be found which contemplates the extension of the office or power of the guardian a single day after the ward becomes of age.
It is not and can not be claimed that the trust relation consequent upon the office of guardian may not continue sub modo after the ward attains his majority, but that is simply for the purpose of winding up the affairs of the guardianship, and turning over the trust property to the ward. But it seems clear that, after the guardianship has terminated by the majority of the ward, the office can not be so exercised as to' bring within the official control of the guardian, property or assets not previously in his hands or under his control. If, for instance, the ward, after becoming of age, borrows money, or if he sells and conveys his lands, and hands the money over to his guardian, or suffers him to obtain possession of it, such transaction would establish the relation of debtor and creditor, or that of trustee and beneficiary, according to the circumstances, but the money would not become a part of the estate of the ward in the hands of the guardian, as guardian.
In this we are not at all unmindful of those salutary rules adopted and enforced by courts of equity in relation to transactions between persons sustaining fiduciary relations to each other. Such transactions are always viewed by those courts with great suspicion, and in some cases will be pronounced fraudulent per se, and in others will be sustained only upon affirmative proof by the party in possession of the influence growing out of the fiduciary relation of the exercise of the highest degree of good faith. But these rules are rules of equity, applicable alike to all cases where fiduciary relations exist, such as may subsist between a parent and his child, an agent and his principal, an attorney and his client, a trustee and his beneficiary, as well as those which subsist between a guardian and his ward, after the ward has become of age, but before he has ceased to be amenable to the influences acquired by the guardian through the guardianship relation. The remedy which courts of equity apply in such cases is, to set the transaction aside and charge the party occupying the fiduciary position as trustee for the other party in respect to the property he has thereby gotten into liis possession or under liis control. But it does not follow that a guardian, who obtains money or other property of his ward for the first time after the relation of guardianship has terminated, takes such money or property as guardian, so as to be chargeable with it in his official capacity. His office and trust as guardian is at an end, except for the mere purposes of accounting and settlement. If he afterwards uses the influence which he has acquired over his ward so as to get into his hands other moneys or property, the transaction will be set aside, at the instance of the ward, and the guardian will, in equity, be charged in respect thereto as trustee of his ward, but .such trust will necessarily be personal and not official. A court of equity will compel him to restore it to his ward, but as guardian he can not be charged with it.
While the decisions on this subject are not altogether harmonious, we think the weight of authority supports the views we have here expressed. In Shelton v. Smith, 8 Baxter, 82, on bill filed by a ward after becoming of age, against the guardian and the sureties on the guardian’s bond, for an accounting and a decree for the payment of the moneys unaccounted for, it was held that a certain sum of money received by the guardian after the majority of her ward, was not received while slit) was guardian, and that the sureties on her bond could not be held responsible for it.
In Bell v. Towson, 4 Watts & Serg. 557, an attempt ivas made to charge the estate of a deceased guardian with liability for property alleged to have been delivered to the guardian after his ward became of age, or at least after the guardianship was terminated by the marriage of the ward. While holding that there was no satisfactory evidence that said property was received by the guardian as alleged, the court, on the question of the liability of the guardian, if it were shown that it had been received, says: “Sarah (the ward) was of age, or at all events was married, in 1816, and her husband had a right to this money. Any money received, if any could be received after this, was received, not as guardian, but to be paid over; he could have been sued for it in a court of law, and was barred in six years.”
In Merrells v. Phelps, 34 Conn. 109, a guardian, after having received $40 belonging to his ward, was removed by the court. He appealed from the order removing him, but subsequently withdrew his appeal. Afterward, professing to be guardian, he collected $100 due his ward. Said guardian not having accounted for either sum, the ward, on becoming of age, brought suit against the guardian and his surety on his official bond for the recovery of both’sums of money, but the court held that, as to the sum of $100, there was no liability on the bond, as it was received by the principal after he had legally ceased to be guardian.
In Hinckley v. Harriman, 45 Mich. 343, it was held that money devised to a ward, to be paid over to her when she came of age, but improperly paid over to her guardian while she was still a minor, was not received by him as guardian, because he had no business with it, and therefore that he was not liable for it on his bond. Upon very similar states of facts the same rule was laid down in Henderson v. The State, 61 Md. 471, and Allen v. Crossland, 2 Rich. Eq. 68.
In Crowell’s Appeal, 2 Watts, 295, it was held that transactions between a guardian and his ward during his minority are alone the subjects of settlement in the guardian’s account, and that goods sold and delivered to the ward after he arrived at full age, are not the subjects of credit, but can only be recovered by set-off against the balance on settlement of the account.
But we are referred, as sustaining a contrary view, to the following cases: Mellish v. Mellish, 1 Simons & Stuart, 138; Pyatt v. Pyatt, 46 N. J. Eq. 285; Armstrong v. Walkup, 12 Gratt. 608, and Bombeck v. Bombeck, 18 Mo. App. 26. There are in these eases certain views expressed in argument, which, when considered apart from the questions which were actually presented for decision, would seem to have something of the force claimed for them by counsel here. But when viewed in the light of the questions involved in the cases actually decided, they have little if any application to the case now under consideration.
In Mellish v. Mellish, Catherine Martha Mellish, having been under the guardianship of her three uncles, on reaching her majority, requested two of them to continue the management of her affairs. One of the two consented to act, and he subsequently brought a suit at law against her to recover moneys advance.d by him to her after her majority, and she .then filed her bill in chancery to restrain the suit at law, and for an account of all the guardian’s transactions, both before and after her majority. The complainant having "obtained a common injunction for want óf an answer, and an'order having been obtained to dissolve the injunction nisi, and the defendants having answered, it was ordered that the injunction be continued in force, upon the complainant’s paying into court the entire amount of the money which the plaintiff in the suit at law had advanced to her. The only question presented in the case was, as to the continuance in force of the injunction, and that was ordered upon terms that the complainant should pay"into court all that could have been recovered in the suit at law. True, the Vice Chancellor, in deciding the case, said: “I consider that the unbroken continuance of the management of the property by the guardian, after the plaintiff had attained her age, is, in effect, a continuance of the guardianship as to the property; and that the same principle must he applied to this account as to accounts during the minority.” But it will be observed that in this case there was no question as to the liability on the guardian’s bond, the only question decided beii g in relation to the complainant’s right to an injunction to restrain the prosecution of a suit at law. The proceeding was before a court of chancery which had general jurisdiction in all matters of trust, and so far as the remedy sought was concerned, it was practically a matter of indifference whether- the trust was technically one arising out of the relation of guardian and ward, or out of a contract between parties sui juris. Furthermore, the administration after the ward attained her majority was in respect to precisely the same estate which was in possession of the guardian at and before the ward became of age, and did not involve the control of funds coming to' the hands of the guardian for the first time after the ward’s majority. ■ The parties to both trusts, that arising during the ward’s minority, and that arising after-wards, being substantially the same, there was no difficulty in blending the two together, and treating the two accounts as growing out of one continuing trust. If the proceeding had been before a court having jurisdiction to investigate one of these trusts and not the other, very different questions would manifestly have arisen.
In Pyatt v. Pyatt, the only question was as to the right of the guardian, who was also the mother of the ward, .to be credited in her account with the board of her ward during the period of about six months which intervened between the date of her ward’s majority and the filing of her account. Said credit was allowed, the court citing in support of its decision the language appearing in Mellish v. Mellish, supra, and also relying largely upon the particular phraseology of the statute conferring jurisdiction on the orphan’s court before which the account was rendered. Said statute, as it seems, invested that court “with full power and authority to hear and determine all controversies respecting the allowance of the accounts of executors, administrators, guardians and trustees under wills,” and authorized it to issue process to compel such persons to account for the estate in their hands. It was held that said statute vested said courts, in respect to the accounts of guardians, etc., with the full powers of a court of chancery. It may be conceded that^a guardian is entitled to credit upon her account for money received during the minority of her ward for indebtedness accruing from her ward to her after majority. Pajunents made after such majority are doubtless proper credits, since it is only by means of such payments or their equivalent that the guardian can be discharged. The application of post-majority indebtedness from the ward operates only upon what must be conceded to be a liability of the guardian as guardian, it being pro tanto a discharge. But very different questions arise where the guardian is sought to be charged as guardian with property and estate coming into his hands and under his control for the first time after his ward becomes of age. Those questions did not arise and were not decided in either of the two eases last cited.
In Armstrong v. Walkup, the estate of a deceased guardian was held properly chargeable for interest, hire and rents received by "the guardian, after the majority of his wards for money, slaves and lands under his control during their minority, and which remained afterwards. From that rule we are not disposed to dissent. So long as the guardian retains in his possession and under his control the estate received by him during the minority of his ward, he must be deemed to retain it in the capacity of guardian, and to receive the rents, issues and profits thereof in the same capacity.
The case of Bombeck v. Bombeck was a proceeding against a guardian to compel him to account. He was charged with a sum of money received by him from the estate of his ward’s deceased father in Colorado, but as the evidence was not preserved in the bill of exceptions, it could not be determined from the record whether said money was actually received by him before or after his ward became of age. It appeared, however, that said money was received as the result of a litigation undertaken and prosecuted by the guardian long before the ward’s majority; and the court held that, even if received after his ward became of age, it was so far obtained under color of office as to estop the guardian to deny that he received it as guardian.
The four cases above commented upon are the authorities upon which counsel seem to rely as establishing the rule, that moneys received by a guardian, after the majority of his ward, under the circumstances shown by the evidence in this case, must be held to have been received by him as guardian, so as to bring the settlement of his accounts therefor within the jurisdiction of the Probate Court. We are of the opinion that the distinction between the questions. decided in those cases and those arising in this is clear and radical, and that those cases do not tend to establish the conclusion sought to be drawn therefrom.
Assuming as true the fact which the evidence tends to prove, viz., that most if not all the charges against the guardian in the post-majority account were for moneys which came into the possession and under the control of the guardian for the first timé after his ward became of age, the question is whether such moneys are to be deemed to have been received by him in his official capacity, so as to give the Probate Court jurisdiction to call him to account in respect thereto. At the time they were received the guardianship had expired, and the trust was no longer in existence except for the purposes of accounting and settlement. The ward having become sui-juris, it was competent for him and his late guardian to enter into any new dealings'they might see fit. But their doing so could bring no new funds within the purview of the guardianship relation, at least, so as to effect the liability of the sureties on the guardian’s bond. Whether these subsequent transactions between the guardian and his late ward established between them the relation merely of debtor and creditor, or the more onerous relation of trustee and beneficiary, is unimportant here. If the guardian became a trustee for his late ward, the proper tribunals are open to the beneficiary for the enforcement of the trust. The Probate Court was authorized to deal only with the guardian’s accounts in his official capacity as guardian.
The jurisdiction of Probate Courts is fixed by section 20, article 6, of the Constitution, and by the act to establish Probate Courts, approved April 27, 1877, passed in pursuance thereof. Said section of the Constitution empowered the General Assembly to provide for the establishment of Probate Courts in each county having a population of fifty thousand, and provided that, “said courts, when established, shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons, the .appointment of guardians and conservators and settlement of their accounts,” etc. The act of April 27, 1877, in providing for the establishment of Probate Courts, conferred jurisdiction on said courts in the exact language of the Constitution. So far then as the jurisdiction of said courts relates to the subject of guardianship, it is conferred in these words : “Shall have original jurisdiction of the appointment of guardians and the settlement of their accounts.” It will thus be seen that this jurisdiction is limited to the specific subject of the settlement of guardians’ accounts. While said courts may, within the limits of the jurisdiction thus conferred, exercise chancery powers, they are not given general chancery jurisdiction, even over the affairs of persons who may happen to hold the office of guardian. Doubtless they may, in settling guardians’ accounts, charge a guardian with any sum of money with which, as guardian, he is properly chargeable, and give him any credit to which, as guardian, he is entitled. But they can not settle all equities between the guardian and his late ward, or adjust accounts or dealings which do not properly pertain to the guardianship.
“Jurisdiction is the power to hear and determine the subject-matter in controversy between parties to a suit", to adjudicate or exercise any judicial power over them; the question is, whether, in the case before a .court, their action is judicial or extra-judicial; with or without the authority of law to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a judgment or decree, then the court has jurisdiction; what shall be adjudged between the parties, and with which is the right of the case, is judicial action, by hearing and determining it.” State of Rhode Island v. State of Massachusetts, 12 Pet. 657, 720.
If a court has jurisdiction of the subject-matter and the parties, it is altogether immaterial, "where its judgment is collaterally called in question, how grossly irregular or manifestly erroneous its proceedings may have been; its final order can not be regarded as a. nullity, and can not therefore be collaterally impeached. On the other band, if it has proceeded without jurisdiction, it is equally unimportant how technically correct and precisely certain, in point of form, the record may appear; its judgment is void to every intent and for every purpose, and. it must be so declared in every court in which it is presented. In the one .case the court is invested with power to determine the rights of the parties, and no irregularity or error in the execution of the power can prevent the judgment, while it stands unreversed, from disposing of such rights as fall within the legitimate scope of its adjudication ; while in the other, its authority is wholly usurped, and its judgments and orders the exercise of arbitrary power under the forms, but without the sanction, of law. Sheldon v. Newton, 3 Ohio St. 494; 12 Am. & Eng. Encyc. of Law, 311.
The rule thus laid down has been frequently recognized and affirmed by this court. Thus, in Kenney v. Greer, 13 Ill. 432, it was said: “No principle is clearer than, if the court transcends the limits which the law has prescribed for it, and assumes to act where it has no jurisdiction, its decisions will be utterly void, and entitled to no consideration, either as evidence or otherwise; and most emphatically is this so in reference to the decisions of" a court of limited jurisdiction. * * * There is some difficulty in determining whether a court has or has not jurisdiction in a particular case; but, that once determined, the consequences that are to flow from the decision are well understood, and the want of jurisdiction being established, the proceedings of such courts are absolute nullities, except so far as they may, under some circumstances, be resorted to as a protection to an officer executing their process.” To the same effect see, Swiggart v. Harber, 4 Scam. 364; Buckmaster v. Carlin, 3 id. 104; Hernandez v. Drake, 81 Ill. 34; Munroe v. The People, 102 id. 406.
That Probate Courts are courts of limited jurisdiction can not be disputed, but while acting within the scope of their constitutional and statutory authority, they are not, as we have frequently held in respect to County Courts exercising the same jurisdiction, courts of inferior as contradistinguished from courts of superior jurisdiction. This, however, only goes to the question of the presumptions which must obtain in favor of their jurisdiction, and the mode by which want of it must be shown. A court of superior jurisdiction, proceeding within the general scope of its powers, is presumed, in a collateral proceeding, to have had jurisdiction of the cause, until the contrary appears, but the facts which give an inferior court jurisdiction must appear on its record. 12 Am. & Eng. Encyc. of Law, 270, 274. But if the jurisdiction of the court, or the want of it, appears on the face of the proceeding, the result is the same whether the court ranks as a court of superior or of inferior jurisdiction. The' rule also seems to be well sustained by authority, that the presumption of the regularity of the proceedings of a court of superior jurisdiction is conclusive, as against collateral attack, unless the want of jurisdiction is shown on the face of the record. Ibid. 265, note 1.
In the present case, if we treat the re-statement of the guardian’s account as a part of the record of the Probate Court, as we clearly must, the want of jurisdiction of said court, if it appears at all, appears on the face of said record. We are of the opinion that the re-statement of the guardian’s account not only tends to show that the Probate Court undertook to settle accounts growing out of post-majority transactions in respect to which it had no jurisdiction, but that it is susceptible of no other interpretation. Said statement consists of two entirely separate accounts, one embracing transactions prior and up to the date of the ward’s majority, and showing the state of the guardian’s accounts at that date. The other relates wholly to subsequent transactions, and the charges against the guardian appearing therein are all for moneys which came into his hands after his ward became of age, and after his office of guardian had terminated. The prima facie presumption as to all. these sums of money would be, that they were received by the guardian in his private and not in his official capacity. Doubtless if they were received by him as the rents, issues or profits of the estate already in his hands, he would be chargeable with them as guardian, notwithstanding the termination of his office. But as to $33,700 of the money so charged, the possibility of their being the rents, issues or profits of the ward’s estate in the guardian’s hands, or interest on the ward’s money invested by the guardian is directly negatived. As to $21,700 of this money the charge is for real estate of the ward sold, and as to $12,000, for money borrowed. Clearly these were funds with which the guardian, as guardian, had nothing to do, and the Probate Court, by undertaking to settle the guardian’s accounts in 'relation thereto, assumed to adjudicate upon a matter over which it had no jurisdiction, and the want of jurisdiction is shown affirmatively on the face of the record.
It does not follow that the order of said court is totally void. The account in relation to transactions prior to the ward’s majority was clearly within the jurisdiction of the court, and as that account is stated separately, and is therefore separable and distinguishable from the post-majority transactions, the order of the court, so far as it relates to that account, is valid, but as to the residue found due, it is without jurisdiction and void.
The remaining question arises upon the decision of the Circuit Court sustaining a demurrer to the defendant’s fourth plea. That plea alleged, in substance, that after the execution of said guardian’s bond by the defendant, as surety, and after Sexton, the ward, had become of age, and before Curtis, the guardian, had rendered his account in said Probate Court, said Curtis and Sexton entered into a secret agreement, without the knowledge or consent of the defendant, by means of which the funds and estate of said Sexton in the hands of said Curtis, as guardian, and belonging to said Sexton, were withdrawn from the guardianship, and were, by the mutual agreement of said Curtis and Sexton invested in their private business, and thereby became lost, whereby the defendant ceased to be a surety for said funds so held by said Curtis as such guardian, and became from thenceforth wholly released and discharged from any and all liability as surety upon said bond.
It is a general rule, that any agreement between the creditor and the principal, which varies essentially the terms of the contract by which the surety is bound, without the consent of the surety, will release the surety from liability. 2 Brandt on Suretyship, (2d Ed.) sec. 378. And if the duties which the principal is to perform are varied by agreement between the principal and obligee, after the surety for the conduct of the principal has become bound, such surety will generally be thereby discharged. Ibid. sec. 393. So also, any dealings with the principal by the creditor, which amount to a departure from the contract by which the surety is bound, and which by possibility might materially vary or enlarge the latter’s liability, without his consent, generally operate as a discharge of the surety. Ibid. sec. 397.
Among the legal duties of the guardian for the performance of which the defendant, by executing the guardian’s bond, became surety, was that of accounting to his ward when the latter became of age, and of surrendering and delivering over to his ward such property and estate as should then be in his custody and possession, as guardian. An agreement between the guardian and ward that such property and estate, instead of being delivered over to the ward, might be retained by the guardian and used in his business, or used in the joint business of the guardian and, ward, would clearly be such a modification of or departure from the legal duty for the performance of which the defendant had become surety, as to be sufficient, upon the principles above set forth, if valid and binding on the ward, to discharge the defendant from his obligation as surety. It would constitute a broad and palpable change in the obligations of the principal, by giving him the right to retain and use, and subject to the hazards of loss in a business enterprise, the funds and property which by the condition of his bond, he had obligated himself to deliver over to his ward at the termination of the guardianship.
Sexton, at the time of the agreement between him and Curtis alleged in said plea, and at the time his estate was embarked in business in pursuance of said agreement and lost, was of full age and therefore sui juris. Said agreement was not void, but at most only voidable at his instance. True, as between the parties to it, it was presumptively fraudulent. Having been entered into while the ward’s property was still in his guardian’s hands, and while dependence on one side and influence on the other presumptively continued, the burden would no doubt rest heavily on the guardian, in any controversy between him and his ward involving its validity, to prove all circumstances of knowledge, free consent, good faith, and absence of influence, to overcome the prima facie presumption that it was fraudulent. 2 Pomeroy’s Equity Juris, sec. 961. Doubtless if the guardian were setting up such agreement as against his ward, he would be compelled, in the first instance, to allege and prove all those circumstances of good faith, absence of influence, free consent, etc., necessary to render the agreement valid. Where, however, such agreement is sought to be availed of by one not a party to it, as, in this case, by the surety on the guardian’s bond, we think a different rule applies. He is a stranger to the contract, and presumably not in a position to be able to establish affirmatively the circumstances under which it was entered into, or whether the guardian has exhibited the uberrima fides which must be shown in order to render his dealings with his ward valid and binding. We are of the opinion that, as to him, the invalidity of such agreement is matter to be set up by the other side by way of replication. We are of the opinion, therefore, that the demurrer to said fourth plea should have been overruled, and that the plaintiff should have been left to the necessity of setting up the circumstances which would render said agreement invalid, as against the ward, by an affirmative pleading.
For the reasons above stated, the judgment of the Appellate Court reversing the judgment of the Circuit Court will be affirmed, but the Appellate Court erred in refusing to remand the cause to the' Circuit Court for further proceedings, and in that respect its judgment will be modified, and the cause will he remanded to the Circuit Court.
Judgment reversed.