1. The bill was filed by the appellees to compel the appellant to an account and settlement, as guardian of the estate of the appellee, Lillia G. The appellant relied as a bar, on a settlement of the guardianship, purporting to be final, made by him in the court of probate from which he derived his appointment, on the 14th June, 1869, while the ward was discovert, and in minority. The settlement was not preceded or accompanied by a revocation of the letters of guardianship. A decree of the court of probate rendered on the final settlement of a, guardianship, if the court has jurisdiction, in the absence of circumstances which would invalidate any domestic judgment or decree, is final and conclusive, operating a bar to any future proceeding in that court to compel such settlement, or to a suit in a court of equity for that purpose.
2. The decrees of the court of probate within the pale of its jurisdiction, are of the same dignity, finality and conclusiveness, as the decrees of other courts of record. But the essentia] element of every judgment or' decree, is that the court shall have jurisdiction of the subject-matter, and of the parties, and that it shall be rendered at a time and place, when and whore, the court may lawfully proceed to judgment. A want of jurisdiction, is fatal to the validity of the judgment or decree, whether it is assailed directly or collate*631rally.—Wightman v. Karsner, 20 Ala. 446; Lamar v. Commissioners Court, 21 Ala. 772; Lamar v. Gunter, 39 Ala. 324.
3. The jurisdiction of the court of probate, in the matter of the final settlement of the guardianship of minors, is limited and statutory. It is not derived from the common law nor from the constitution. If legislation had not called it into existence, it could not be attributed to the court; and a court of equity alone, would have inherent, original jurisdiction, to entertain proceedings for, and pronounce decrees on such settlements.
4. The current of decisions, from the earliest records of this court to .this day, has been, that it is essential to the validity of the sentences of courts exercising a limited and special jurisdiction, that the record must disclose the material facts on which the' jurisdiction depends. If these facts do not exist, the sentence of the court is a nullity. It is to sentences of the court of probate, under its present, and under its former designation of Orphans’ Court, the principle has been most often applied.
5. The statute of force when this settlement was made, and on which the jurisdiction of the court of probate depends, reads : “ Upon the ward coming of age, or, if a female, upon her marriage, or upon the removal of the guardian, he must make final settlement,” &c. There is no other warrant for the exercise of the jurisdiction. The termination of the relation, of the authority and duty of the guardian, either by the removal of the disability of infancy, or the revocation of the letters of guardianship, or the marriage of a ward, if a female, which of itself, if lawful, supersedes the guardianship, because the authority and duty of the guardian, is inconsistent with the higher authority and duty of the husband, is the fact on which depends the jurisdiction of the court to pronounce a final decree, on a final settlement of the accounts of the guardianship. If no one of these events has happened, whatever may be the state of the accounts of the guardianship, the relation of guardian and ward continues. The fortune of the ward may have been small and properly expended; there are other duties than the management of the ward’s estate which devolve on the guardian, and Avhich he is bound to perform. No other appointment of guardian can be made until there is a legal termination of the appointment conferred on him. In the present case, if after the settlement, the ward had acquired an estate, real or personal, it would have been the duty of the guardian arising from original appointment,and he would have had full authority *632to receive and manage it as if the settlement had not been made. The sureties on his original bond would have been bound for his fidelity in reference to such estate, as they were bound in reference to the estate of the ward at the time of the appointment. A final settlement in reference to such estate, it would have been within the jurisdiction of the court of probate to compel on the happening of either of the events mentioned in the statute. The records of the court would then disclose the anomaly of two final settlements of the same guardianship, the statute contemplating and authorizing one only, and that after the termination of the guardianship. Again : the guardian cannot voluntarily enter on a final settlement, in any event, unless he could be compelled to such settlement. His right is concurrent with his duty, and with the right of the ward to compel performance of the duty. The court of probate had authority, and it was the right of the ward to compel partial or annual settlements whenever expedient to disclose the real state of the guardian’s accounts, and to protect the ward against his mismanagement, waste, or fraud. — Revised Code, § 2421. But the ward was without power in the court of probate to compel a final settlement of the guardianship, until its termination. It is not contemplated the guardian shall have a higher right to proceed to a final settlement, than the ward has to compel it. The rights of the one, and of the other, are concurrent. We hold, therefore, the court of probate was without jurisdiction to proceed to a final settlement of the guardianship, while the relation of guardian continued, the ward being in minority and discovert. The decree on that settlement did .not, therefore, operate as a bar to the present bill, for a final account and settlement, filed by the ward after her marriage. A different conclusion was attained in Spencer v. Spencer (50 Ala. 445), but we can not concur in it, for the reasons -we have stated.
6. It seems the guardian sustained also the relation of trustee to the ward; and in his accountings in two annual settlements with the court of probate, preceding the invalid final settlement, he blended his accounts as trustee and as guardian. The bill seeks an account of the guardianship, and to charge the appellant only in the capacity of guardian. It is insisted, that the chancellor should not have ordered an account taken of the funds the appellant had received as trustee; that these funds are the subject of a distinct and separate claim, from the liability incurred as guardian; that the court of probate having no jurisdiction of trusts, charg*633ing himself as guardian with these funds in that court, could not change the character of the claim against him. "When the bill was filed, the ward had married, and in that event, or on her arrival at full age, her estate and interest became absolute according to the terms of the trust. If the trust estate had not been encumbered with the limitation over to others, on the happening of the death of the ward before marriage, or majority, the right of the guardian to elect to hold the funds in the one capacity, or the other — as trustee, or as guardian — would have been unqualified. The only question which could then have arisen, would have been, if the ward was seeking to charge him, as to the capacity in which he was liable. Such a question most often arises, where there is a union in one person of the fiduciary relations of executor or administrator, and of guardian.
In the first instance, the liability is only as executor, or administrator, and there must be some distinct and positive act of election to hold as guardian before there is a transfer of the liability.—Davis v. Davis, 10 Ala. 299; Johnson v. Johnson, 2 Hill Ch. 277. A charge against himself, and an accounting with the proper tribunal as guardian, would be a distinct and positive act of transfer.—Conkey v. Dickinson, 13 Metc. 51. As between the guardian and ward, in the present case, the guardian having elected to hold the funds as guardian, and not as trustee, he can not be permitted to retract the election at pleasure, defeating a suit he has induced the ward to institute against him in the capacity of guardian. If the events had happened on which he could become liable to others in the capacity of trustee — or if there was danger that such liability could be fastened on him, a different question would be presented. But, as the fact existed when the bill Avas filed, it Avas, and is now, immaterial to him whether he is charged as guardian or as trustee. The same person can discharge him, and the decree, in the present suit, would protect him from future litigation as to any claim against him in the capacity of trustee.
7. It Avas not shoAvn by the appellant that he had not. mingled the Confederate bonds and currency with his own funds, had not used them, nor the circumstances under which he received them. A guardian may be relieved from liability, who, during the war, exercising reasonable diligence, in good faith received Confederate currency in payment of debts due the ward, if without fault on his part such currency perished in his hands.—Key v. Jones, 52 Ala. 238. He can not acquit *634himself of liability merely by showing that he had received such funds. The onus is upon him to show there was diligence and good faith, and that he did not commingle the funds with his own, nor use them for his own purposes. The' appellant has not shown these facts, and his exceptions to the report of the register were properly overruled.
The decree is affirmed.