delivered the opinion of the court.
Orr was appointed testamentary guardian of the appellants by the will of their father, of which he was also made executor. He presented the will for probate, and by his petition stated that he desired to execute its provisions, and showed to the court that no bond was required of him by the will either as executor or as guardian. This petition sufficiently “ declares his acceptance of the guardianship,” as required by article 141, page 459 of the Code of 1857. By article 140 of the code the power of a testamentary guardian was declared and recognized, and no order of appointment by the court was necessary to enable him to enter upon the discharge of his duties. He was appointed by the testator and not by the court. He appeared before the court and declared his acceptance of the office, and though he may have failed to make the oath required by law it does not lie in his mouth to
The decree dismissing the petition is reversed and cause remanded.