DISSENTING OPINION
By HURD, J.I respectfully dissent from the judgment and opinion of my esteemed *22colleagues because, in my opinion, the judgment rendered deprives the Probate Court of its exclusive jurisdiction in the appointment of guardians.
The petition for a writ of habeas corpus should be dismissed because:
(If Petitioner is in the wrong forum, having an adequate remedy at law by the commencement of proper proceedings in Probate Court.
(21 This proceeding is a collateral attack upon the jurisdiction of the Probate Court.
(31 The appointment of the respondent, as guardian, was a proper exercise of jurisdiction by the Probate Court, there being no other guardianship proceedings outstanding in any other court of record, the respondent at the time of her appointment being a resident of this county and standing in the relationship of loco parentis, both factually and legally, to said minor child under an order of the Supreme Court of New York and by virtue of the statutes of Ohio.
(41 The order of guardianship having been lawfully made and the jurisdiction of Probate Court being plenary, exclusive and binding on all the world, the petitioner herein should seek her remedies in that court.
An examination of the soundness of the foregoing propositions requires a restatement of facts, some of which are not contained in the majority opinion, and an examination of the applicable principles of law.
Donald Peter Fore, the minor, was orphaned and made homeless by the tragic death of his parents, Master Sergeant Donnie Ray Fore, and his wife, Franziska Anna Fore, both of whom died as a result of an automobile accident. At the time of the accident Master Sergeant Fore, who was on duty with the United States Army, stationed at Ingrandes, France, was en route from his home to the United States Army Hospital in Chinon, France, where he was taking his wife for delivery of their second child. Sergeant Fore met death instantly but his wife, Franziska, survived him for a period of about five hours without regaining consciousness. The expected child was stillborn and both the mother and the child were buried at her parents’ home in Goeggingen, Germany.
The respondent, Mrs. Jacobine Toth, is a sister of the deceased, Franziska Fore, and the maternal aunt of the minor. Upon being notified of the death of the minor’s parents, the respondent made a trip by airplane to attend the funeral of her sister in Germany. After the funeral services, she sought the custody of the minor child and after some delay, while at her parents’ home in Germany, the child wfis delivered to her for return to the United States by order of the Department of the Army in France. This transfer was not accomplished until the Department of the Army had previously made an investigation of the conditions of the home of respondent in Cleveland, Ohio, by and through the American Red Cross which forwarded to its overseas field office a report favorable to the respondent in all respects.
The petitioner, the paternal grandmother of the minor, is a widow seventy-seven years of age who lives alone in her residence in Winnsboro, Louisiana, and who, according to testimony in the record, is suffering from rheumatism and high blood pressure.
The record shows that the respondent is a married woman, aged *23thirty-three, who lives with her husband, William Toth, .aged thirty-five, at 9006 Laisy Avenue, in the City of Cleveland, together with their minor child, aged twenty-two months, and Donald Peter Fore, now aged three and one-half years. After the child was delivered into her custody by the Department of the Army in France, the respondent embarked with the child by airplane for the United States. Upon arrival in New York on Sunday, the 19th of October, 1957, she was served with a summons for a writ of habeas corpus upon the petition of one, Ida Fore Tillery, aged approximately fifty years, an elder sister of Sergeant Donnie Ray Fore, who had been appointed guardian of the child on the 18th day of October, 1957, by the Court of Chancery of Amite County, Mississippi, with the consent and approval of the petitioner herein.
Upon hearing at a Special Term, Part One, of the Supreme Court of the State of New York, held in and for the County of Queens, at the Queens General Court House, the Honorable Nicholas Pette, Justice, ordered that the said writ be dismissed and made an entry as follows:
“Ordered that the custody of Donald Peter Fore, the child for whose production the said Writ was issued, be and hereby is granted to Jacobine Toth, * * * the maternal aunt of said infant.”
Thereafter, the respondent proceeded with the child to her home in Cleveland, Ohio, where she has cared for him continuously since that time. Thereafter, respondent made application to the Probate Court of Cuyahoga County for letters of guardianship, naming both the maternal grandparents residing in Germany and the paternal grandmother residing in Louisiana in said application, and upon appointment as guardian of the person and estate of said minor, December 2, 1957, qualified by giving bond in the sum of $4,000 as ordered by said court.
Thus the record clearly shows that the respondent has had actual custody of the child since October 24, 1957, first, through the order of the Department of the Army of the United States in France, secondly, through the order of the Supreme Court of the State of New York and thirdly, through the letters of guardianship issued by the Probate Court of this county.
The petitioner commenced this action on April 21, 1958, based on letters of tutorship issued to her by the Fifth District Court of the Parish of Franklin, State of Louisiana, on the 11th day of April, 1958, something over four months after the letters of guardianship were issued by the Probate Court of this county.
The petition herein is predicated upon the technical legal fiction of the common law that because the father of the minor child was born in Winnsboro, Louisiana, and resided there until he entered the Army at the age of nineteen years, he was at the time of his death domiciled in the State of Louisiana; that, therefore, the child is domiciled in Louisiana and the paternal grandmother is now entitled, as a matter of right, to guardianship of the child.
There are many facts and circumstances shown in the evidence which negative the contention of the petitioner that Sergeant Fore was, at the time of his death, domiciled in Louisiana. One fact is that when Sergeant Fore was stationed at Camp Polk, he established a residence in Colonial Heights, Virginia, and lived there with his wife for a period *24of approximately three years until he was ordered overseas to join the Department of the Army in France. At the time of his departure, he stored his furniture and at the time this hearing was had, the furniture was still stored there. The evidence in the record shows that whenever the question of future residence was discussed. Sergeant Fore expressed the intention, upon his release from the Army, to make his home in Virginia. This intention he expressed a number of times. He was serving his fifth enlistment at the time of his death and during this period stated a number of times that he did not want to go back to Louisiana upon the termination of his military career because he did not like the life he had lived there, and definitely stated that he did not want to live in Louisiana. It is also a fact that the mother of the child survived the father by some five hours and that she was never actually domiciled in Louisiana and that the child, whose guardianship is sought by the petitioner, never resided in Louisiana. Thus, if it should be conceded, arguendo, that the domicile of the father would be a controlling factor, the evidence fails to demonstrate clearly that Louisiana was, in fact, the domicile of the father at the time of his death in France.
However, the principal question presented for determination is whether the Probate Court of this county had jurisdiction to appoint the respondent the guardian of the minor child when it issued letters of guardianship on December 2, 1957. For it must be conceded that if the Probate Court acted within its jurisdiction, its appointment of a guardian for the minor child “binds all the world,” and that this court is without jurisdiction to entertain this proceeding in habeas corpus or to grant the writ.
It appears from the record that the child is now and has been a resident of Cleveland, Ohio, in the home of the respondent guardian since leaving New York City after the Supreme Court of New York denied the writ of habeas corpus instituted by Ida Fore Tillery and granted respondent custody of the said child in November, 1957.
While the Department of the Army was without authority to determine questions of guardianship or permanent custody, it is certain that it took a proper course of action after extensive investigation through the American Red Cross when it placed the child in the temporary custody of the respondent, the only next of kin from the United States present at the time, for the purpose of transporting the child to the United States. Therefore, the action of the Department of the Army in so doing cannot be deemed unlawful. However, be that as it may, it is certain that the Supreme Court of New York, by its order denying the application for a writ of habeas corpus to Ida Fore Tillery in the action instituted by her and by granting the custody of the child to the respondent, placed the respondent, factually and legally, in loco parentis to the child. It was necessary that such an order be made because the child at that time was a dependent child of tender years within the jurisdiction of the Supreme Court of New York, who needed a home, plus care comfort and sustenance. Consequently, the order there made, with all proper parties before it, was within the orbit of its jurisdiction.
The law in respect to the jurisdiction of the Probate Court in the *25appointment of guardians has been well defined and delineated by many authoritative decisions, a number of which are directly applicable to the facts of the instant case.
In Shroyer v. Richmond, 16 Oh St 455, decided by the Supreme Court in the December Term of 1866, it was held that plenary and exclusive original jurisdiction is given to the Probate Courts of this state in the matter of the appointment of guardians; that such proceedings are not “inter partes” or adversary in character; that they are properly proceedings in rem; and the appointment made in the exercise of jurisdiction binds ah the world; that Probate Courts of this state are courts of record belonging to that class whose records import absolute verity and that they are competent to decide upon their own jurisdiction; that an order of a probate court appointing a guardian in the exercise of its jurisdiction cannot be collateraly attacked and that the record, showing nothing to the contrary, it will be conclusively presumed in all collateral proceedings that such order was made upon full proof of all the facts necessary to authorize it. (See paragraphs three, four, five and six of the syllabus.)
In the later case of In re Clendenning, 145 Oh St 82, 60 N. E 2d 676, April 11, 1945, the Supreme Court approved and followed the principles set forth in the Shroyer case. Thereafter, in Weigel v. Grosenickle, 100 Oh Ap 106, 135 N. E. 2d 894, decided May 22, 1954 a case factually analogous in many respects to the instant case, the Court of Appeals for the First District, sitting in Clermont County based its decision on the Clendenning case.
The court had before it for decision an appeal from a refusal by the Court of Common Pleas to grant a writ of habeas corpus. In that case, the children were completely orphaned by the death of their surviving parent. It was stipulated that a paternal grandmother, residing outside the State of Ohio, and two aunts, residents of Hamilton County, Ohio, one being the appellant therein, appeared before the Probate Court of Clermont County and asked for custody of the children and were refused, prior to the appointment of the co-guardians therein, it was contended there that upon the death of the surviving parent the domicile of the minors became that of the nearest blood relative willing to stand in loco parentis to the children so as to deprive the Probate Court of jurisdiction to appoint a guardian. In the alternative, it was contended by the appellant that if the court had jurisdiction to make the appointment as co-guardian, she was entitled to the custody of the children so that the invoking of the jurisdiction of the Court of Common Pleas in habeas corpus had for its object a change of custody originally fixed by the Probate Court. The Court of Appeals declared at page 107 that “in either event petitioner is in the wrong forum,” and held that the principles decisive of the appeal were those set forth in In Re Clendenning, supra. (Emphasis added.) The syllabus of the case provides:
“Once a Probate Court properly appoints a guardian for a minor, exclusive, continuing jurisdiction upon matters of custody remain in that court, even though the minor has his. domicile in some other county or state.” (Emphasis added.)
The ratio decidendi of the court, as set forth at page 107, et seq., has, we believe, equal application to the facts of the instant case. After *26citing and quoting §2111.02 R. C., concerning the appointment of a guardian of the person, the estate or both, of a minor, the court cited Langan v. Kessinger, 23 Abs 392 (Oh Ap), saying that it was there squarely held that “a guardian may be appointed in Ohio even though the minor has his domicile in some other county or state, under the provisions of §10507-2 GC (§2111.02 R. C.).” (Emphasis added.)
The court then proceeded in its discussions as follows:
“The principles decisive of this appeal are set forth, in part, in In re Clendenning, 145 Oh St 82, 60 N. E. 2d 676:
“ ‘Plenary and exclusive, original jurisdiction is given by law to the Probate Courts of this state in the matter of the appointment and removal of guardians. (Shroyer, Gdn. v. Richmond, 16 Oh St 455, approved and followed.)
“ ‘2. A guardianship proceeding is a proceeding in rem and the exercise of jurisdiction by a Probate Court binds all the world (Ibid.)
“ ‘3. An order appointing a guardian made by a Probate Court in the exercise of its jurisdiction cannot be impeached collaterally. (Ibid.)
“ ‘4. Where petitioner has an adequate remedy at law a writ of habeas corpus should be denied. (Ex parte Justes, 121 Oh St 628, approved and followed.)’
“And, in the opinion, at page 92, it is stated:
“ ‘As stated in 39 Corpus Juris Secundum, 14, Sec. 4:
“ ‘A guardian appointed by a court of competent jurisdiction is always under the court’s control and is subject to its directions and supervision. This is so even though the guardian was nominated by the ward. The jurisdiction of the court in this respect is exclusive and a continuing one.’
“ ‘In 25 American Jurisprudence, 7, Section 2, it is said:
“ ‘The court having jurisdiction of a guardianship matter is said to be the superior guardian, while the guardian himself is deemed to be an officer of the court.’ ”
“It, therefore, appears that exclusive, continuing jurisdiction upon matters of custody rested in the Probate- Court, and the appellant has an adequate remedy at law in that forum, so that the petition in habeas corpus was properly dismissed, and the judgment of the lower court is affirmed.” (Emphasis added.)
We think that the principles of law declared by the Supreme Court in the Shroyer and Clendenning cases, supra, and the rationale of the unanimous decision of the Court of Appeals of the First District in Weigel v. Grossnickle, supra, are decisive of the issues in this case and require this court to dismiss the habeas corpus proceeding because here, as in the Weigel case, the habeas corpus proceeding has for its object, change of custody originally fixed by Probate Court.
While it is not necessary to look outside of Ohio for authorities on the jurisdiction of a court of record to appoint a guardian of the person of a child resident in a state, it may be noted that in 4 A. L. R. 2d at page 16, there is the following pronouncement:
“Where there is no outstanding judicial award of custody by a foreign court the courts are nearly unanimous in holding that even though the *27children may be domiciled without the state, power in the court exists to make an award of custody of children present in the state in furtherance of the welfare of the children.” (Emphasis added.) (Citing numerous authoritative decisions of other jurisdictions.)
And on the same page, second column, it is stated:
“According to this view, technical legal domicil of a child within the state is not a sine qua non of child custody jurisdiction on the part of the court.” (Citing and discussing numerous cases of guardians.)
To the same effect, see also Finlay v. Finlay, 240 N. Y. 429, 148 N. E. 624. where it was held in an opinion by Cardozo, J., that:
“The jurisdiction of a State to regulate the custody of infants found within its territory does not depend upon the domicile of the parents. It has its origin in the protection that is due to the incompetent or helpless. For this, the residence of the child suffices though the domicile be elsewhere.”
In the instant case, there was no outstanding judicial award of custody by a foreign court at the time the letters of guardianship were issued by the Probate Court of Cuyahoga County. The letters of guardianship issued to Ida Fore Tillery by the Probate Court of Amite County, Mississippi, were adjudicated in the habeas corpus proceeding instituted by said Ida Fore Tillery in the Supreme Court of New York and no appeal was prosecuted from the judgment of that court.
It is important to note also that the petitioner in the instant case consented to the appointment of Ida Fore Tillery in the Mississippi Court and that the letters of guardianship issued in Mississippi were later abandoned -by reason of the application of the petitioner herein for letters of tutorship in Louisiana a considerable time after the judgment of the Probate Court here was entered appointing the respondent guardian.
Turning now to the statutory law of the State of Ohio in respect to the appointment of guardians, §2111.02 R. C., insofar as is applicable reads as follows:
“When found necessary, the Probate Court on its own motion or an application by any interested party shall appoint a guardian of the person, the estate, or both, of a minor.' * * * provided the person for whom the guardian is to be appointed is a resident of the county or has a legal settlement therein.”
Under this section, the court has jurisdiction to appoint a guardian provided the person for whom the appointment was made is a resident of the county or has legal settlement therein. We have heretofore stated that at the time of the application for appointment, the facts showed that the minor was a resident of this county, having a legal settlement therein, living with the respondent herein who was granted custody by the Supreme Court of New York.
Sec. 2151.06 R. C., reads as follows:
“Under §§2151.01 to 2151.54, inclusive, R. C., a child has the same residence or legal settlement as his parents, legal guardian of his person, or his custodian who stands in the relation of loco parentis.” (Emphasis added.)
*28This section has application to the facts of the instant case because under §2151.04 R. C., the child involved was a dependent child and the respondent herein, at the time of her appointment as guardian by the Probate Court, stood in the relation of loco parentis to said child, which relationship has continued up to the present time.
It is true that this provision of the Code forms part of what is known as the Juvenile Court Act. The petitioner raises objection on the ground that this section relates only to Juvenile Court and has no application in guardianship proceedings in Probate Court. This objection of the petitioner cannot be successfully maintained because, as has been heretofore pointed out, plenary and exclusive original jurisdiction is given to the Probate Courts of this state in the matter of the appointment of guardians. Shroyer v Richmond and In re Clendenning, supra. Obviously, the Juvenile Court is not vested with jurisdiction to appoint guardians. That jurisdiction resides exclusively with the Probate Court. It should be observed that §2111.02 R. C., in respect of the appointment of guardians, is general in character and is applicable to the appointment of guardians of all classes of persons, whereas §2151.06 R. C., a part of the Juvenile Court Act, has application to minors only and, consequently, has application to the appointment of a guardian for the dependent child in this case.
In the case at bar, the minor was made a dependent child by the tragic death of his parents. The definition of dependent child set forth in §2-151.04, sub-section A, R. C., is one “who is homeless or destitute or without proper care or support through no fault of his parents * * Here death of both parents wrote the final chapter and created an emergency which brought the child within the provisions of the statute. The legislature has determined by the provisions of §2151.06 R. C., that dependent children are entitled to guardianship and that the child has the same residence and legal settlement as his “custodian who stands in the relation of loco parentis.” (Emphasis added.) It follows perforce as a matter of fact and of law that the respondent stood in the position of loco parentis to said child at the time of her appointment as guardian by Probate Court, and that the child’s residence and legal settlement was at the time of the appointment, in Cuyahoga County, and that the Probate Court acted properly and within its jurisdiction in appointing a guardian for said child in this jurisdiction.
It must be concluded that the Probate Court, under the provisions of §§2111.02 and 2151.06 R. C., properly exercised its jurisdiction in its appointment of a guardian of the person and estate of the minor and, therefore, the Probate Court is the proper forum in which to present the issues in this habeas corpus proceeding.
From this we must conclude, as was concluded by the Court of Appeals of the First District in the Weigel case, supra, that exclusive, continuing jurisdiction on matters of custody resides in the Probate Court of this county and that the petitioner herein has an adequate remedy at law in Probate Court, so that the petition in habeas corpus, filed as an original action in this court, should be dismissed. In the Clendenning case, supra, the court held, as appears by paragraph five of the syllabus, as follows:
*29“5. Sec. 10507-61 GC (§3111.47 R. C.), provides an adequate remedy for the removal of a guardian and the exclusive method for the exercise of original jurisdiction in such a proceeding.”
Sec. 10507-61 GC, now §3111.47 R. C., applied to wards other than minors. The present statute applying to guardianship of minors is §3111.46 R. C., and in substance contains the same remedies for the removal of guardians as are contained in §2111.47 R. C., which applies to other than minors. Therefore, it follows that §2111.46 R. C., provides an adequate remedy to the petitioner and is the exclusive method afforded petitioner rather than by a proceeding in habeas corpus in this court.
For the foregoing reasons, the petition for habeas corpus, filed as an original action in this court, should be dismissed on the ground as heretofore stated — that the petitioner has an adequate remedy at law by the commencement of proper proceedings in the Probate Court of this county.