This case is now before us on motion for leave to file a second petition for rehearing; the original having been overruled. Counsel in their brief in support of this motion contend that the decision of the court wherein it holds that "the administrator, for the purpose of obtaining certain funds claimed by him at the time to belong to the estate, having entered into a bond under the order of the court, and in pursuance of, and on the strength thereof, received the money involved as such administrator, will not be permitted to deny his authority to receive said money, nor will the surety on his bond be *Page 678 permitted to deny that there was any legal authority or law permitting or requiring him to give such bond," is without authority, and not supported by the decisions.
In the case of United States, to Use of Hine, et al. v.Morse et al., 218 U.S. 493, 31 Sup. Ct. 37, 54 L.Ed. 1123, 21 Ann. Cas. 782, in the second paragraph of the syllabus, we find the following language, which, to our mind, fully supports the doctrine of the instant case:
"The validity of a decree for the sale of an infant's real estate for purposes of reinvestment, and of the order appointing a trustee to make the sale, and of the bond reciting the due appointment of such trustee, executed to secure the faithful discharge by him of his duties, is not open to question by one who voluntarily became a surety upon the bond, thereby enabling his principal to obtain the proceeds of the sale."
In the second paragraph of the syllabus of Anderson v.Anderson, 45 Okla. 653, 146 P. 709, will be found the following:
"Where a guardian executed the bond required by Rev. Laws 1910, sec. 6564, and received the proceeds of the sale of land for his ward, and fails to turn over the same to his successor in office after settlement with the county court, and after he is ordered so to do by the court, he is estopped, in a suit on the bond against himself and his surety, to say that the court had no jurisdiction over the property, and to repudiate the trust and set up title thereto in himself. His surety is also estopped to set up title thereto in the guardian."
Under these authorities it is plain that the contention of counsel cannot be sustained, and therefore the motion for leave to file a second petition for rehearing is without merit, and should be denied.
By the Court: It is so ordered. *Page 679