majority">SOMEBYILLE, J.

— 1. The decree rendered by the Probate Court, on the final settlement of the ’estate of William Yaughan, deceased, bears.date April 17th, 1871". It shows on its face that one of the appellees, Elbert Yaughan, who was one of the administrators of the estate, .was also, guardian of several of the minor distributees — a judgmént, or decree, being rendered in his favor as guardian, for the distributive share of these parties in the estate. The-letters of guardianship as recorded, bear the same date with the said decree of final settlement — April 17th, 187'T'; and the order of the'probate judge making the appointment bears no date. The record is itself thus conclusive of the fact, that the appellee, Elbert Yaughan, was guardian of the appellants at the time the settlement- was made. He is estopped by the judgment itself from denying this fact, which is established by the judgment, he being-a party to the proceeding in which it was rendered. The' probate judge erred in allowing any proof to the contrary, áñd in holding,' on this state of facts, that the relationship of guardian and ward did not exist at the time of the making of the settlement. ■ -

2. Such'beingthe fact, the same person, Elbert Yaughan, was both administrator of the decedent’s estate, and guard*359ian oí the distributees of such estate, thus occupying an inconsistent and antagonistic relation, which, under the rule announced by this court in Hays v. Cockrell, 41 Ala. 78, and since followed, deprived the Pr obate Court of all jurisdiction of the settlement, and rendered its action in the premises entirely void. — Tankersly v. Pettis, 61 Ala. 354. Nor would the rule be different by reason of the fact that the distributees were represented on the settlement by a guardian ad litem. — Alexander v. Alexander, 70 Ala. 212.

The decree of settlement in the Probate Court bearing date April 17th, 1871, being void, the proper mode of reaching the defect was by petition to the judge of that court to set it aside, and declare it vacated.

The judgment here appealed from is accordingly reversed, and this court, proceeding to render the decree which the Probate Court should have rendered, doth hereby adjudge that said decree of April 17th, 1871, rendered by the Probate Court of Franklin county in the settlement of the said estate of William Yaughan, deceased, be annulled, vacated, and set aside, so far only as the petitioners are concerned, pursuant to the prayer of the petition. And said appellees are taxed with the costs of appeal in this court, and the entire costs in the court below.

Beversed and rendered.

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