#### The Union Savings Bank & Trust Co., Executor, *v.*The Western Union Telegraph Co.

*Recovery of damages for injury to real estate*— Death *of*plaintiff— *Action may be revived by executor*— Appointment *of executor*— By *probate court without jurisdiction void, when.*

1. In a suit to recover damages for injuries to real estate by a trespass, the cause of action survives the death of the plaintiff; and the action may be revived in the name of the executor or administrator of the deceased plaintiff.

2. An order of the probate court appointing an executor, if made without jurisdiction, is void, and it may be disregarded in any other court; but if made in the exercise of proper jurisdiction over the subject-matter and estate, although based upon erroneous conclusions of law or fact, it cannot be collaterally attacked.

(No. 10540

Decided December 1, 1908.)

Error to the Circuit Court of Clark county

Rehearing.

Adolphus H. Smith recovered a judgment in the court of common pleas against the defendant in error in the sum of twenty-three hundred and fifty dollars, for damages accruing by unlawful and unauthorized cutting of the limbs and branches of an avenue of trees situated on the farm of the plaintiff. This judgment was affirmed by the circuit court and thereafter was reversed and remanded by the supreme court to the court of common pleas for a new trial. Before the retrial of the case, the plaintiff died, being a resident of Clark county. His will was duly presented for *90probate in the Probate Court of Clark county, and The Union Savings Bank & Trust Company, which was named in his will by the testator as executor, was appointed and qualified as such executor, and has ever since acted as such. The said trust company is a corporation organized under the laws of Ohio. On application therefor, the common pleas court made a conditional order of revivor of the action in the name of said trust company, as such executor. Thereafter, the defendant, The Western Union Telegraph Company, filed an answer objecting to such revivor for the reason .that The Union Savings Bank & Trust Company was not the duly appointed and qualified executor of the last will and testament of the decedent and that it had no authority to act as executor for said decedent, was not the legal representative of the same and could not prosecute this action for or on behalf of the decedent or his estate. Other objections against the conditional order of revivor being made absolute were asserted in said answer, but are not material here. The Union Savings Bank & Trust Company, for reply to the answer of The Western Union Telegraph Company, with other allegations and denials, alleged that it was the duly appointed and qualified executor and trustee under the last will and testament of the decedent. On full hearing the court of common pleas ordered that the case be revived in the name of The Union Savings Bank & Trust Company, as executor as aforesaid. The circuit court reversed the order of the common pleas court and proceedings thereunder, upon the ground that 'it erred in ordering the revivor of *91the action in the name of The Union Savings Bank & Trust Company, as executor as aforesaid. This proceeding is prosecuted to reverse the judgment of the circuit court.

*Mr. Charles L. Spencer*and *Mr. Edwin S. Houck,*for plaintiff in error.

The probate court has exclusive jurisdiction: first, to probate wills, etc. ;■ second, to grant and revoke letters testamentary and Of administration; third, to direct and control the conduct of executors, etc., and settle accounts. Sections 524 and 5995, Revised Státutes; Art. IV, Section 8, Constitution.

The orders of a probate court are even more conclusive than those of a common law court; for they bind the world and not merely parties and privies. *Railroad Co*v. *Belle Centre,*48 Ohio St., 273; *Lessee of Swazey’s Heirs*v. *Blackman,*8 Ohio, 5; *Hoffman, Admx.,*v. *Fleming,*66 Ohio St., 143.

A settled axiom of the law furnishes the governing principles by which these proceedings are to be tested. If the probate court had jurisdiction of the subject-matter and the parties, it is immaterial how grossly irregular or manifestly erroneous its proceedings may have been; its final order cannot be regarded as a nullity and cannot, therefore, be collaterally impeached. The power to hear and determine a cause is jurisdiction. It is *“coram judice”*whenever a case is presented which brings this power into action. *Sheldon’s Lessee*v. *Newton,*3 Ohio St., 494; *Railway Co.*v. *Beard, Admr.,*20 C. C., 681; *Railway Co.*v. *92*Gilday, Admx.,*16 C. C., 649; *Carr, Gdn.,*v. *Hull,*65 Ohio St., 394; Van Fleet on Collateral Attack, paragraphs 540 and 619.

At the time of the application for the order of the Probate Court of Clark county, appointing The Union Savings Bank & Trust Company the executor of Smith, that court had full jurisdiction to pass upon the question whether the trust company was legally competent to act as such executor— whether it was competent to receive such appointment. At that time Sections 3821c, 382Id, 3821c, and' *3821f,*Revised Statutes, authorizing the appointment, by the probate court, of trust companies as executors, were in full force, and the decision in *Schumacher*v. *McCallip,*69 Ohio St., 500, had not been rendered.

We submit that under Section 5149, Revised Statutes, the allowance of the revivor of the action is entirely within the discretion of the court; and that its order, allowing such revivor, will not be reversed except upon clear showing of an abuse of such discretion. No such abuse of discretion appears from the record. There was none.

That the action, at the death of Smith, passed to his personal representative and not to his heirs or devisees, is fully supported in *McPherson*v. *Seguine,*14 N. Car., 153; *Dobbs*v. *Gullidge, 20*N. Car., 68; *Clark’s Admx.,*v. *Railroad Co.,*36 Mo., 202; *Musick, Admr.,*v. *Railway Co.,*114 Mo., 300; *City of Seymour*v. *Cummins,*119 Ind., 148.

*Mr. Lawrence Maxwell; Mr. Andrew Squire*and *Mr. Drausin Wulsin,*also argued orally in behalf of the plaintiff in error.

*93*Messrs. Martin & Martin; Mr. Robert S. Al-corn*and *Mr. Edward Barton,*for defendant in error.

After the appointment, the Supreme Court of Ohio held that the act which authorized the corporation to act as executor was not constitutional, and that trust companies were without “capacity to receive and exercise appointments as administrators of the estate of deceased persons.” *Schumacher*v. *McCallip,*69 Ohio St., 500.

If the action is one which should be revived, then it should be revived in the name of the heir or devisee, and not the executor. The action in this case is one which relates to real estate and is for an injury to realty which passes to the heir or devisee of the decedent and not to the personal representative.

At common law, an action of this kind, if-it was for injury to the person and not to the real estate, would have abated. 1 Cyc., 60; *Johnson*v. *Elwood,*82 N. Y., 362; *Harris*v. *Crenshaw,*3 Rand. (Va.), 14; *Little*v. *Conant,*2 Pick., 527.

Under these authorities, and upon principle we submit that this action, if it can survive at all, can only be revived in the name of the heirs or devisees under the will of said decedent. Sections 5154 and 5256, Revised Statutes.

The action was in effect an illegal appropriation of the trees to the use of the defendant. *Telegraph Co.*v. *Smith,*64 Ohio St., 106.

This brings the case within the ruling of the supreme court, in a proceeding to condemn land for the right of way of a railroad, in which it was held that the right of the owner of the land *94to the damages which accrued by the location of the road through the property passed to the heirs or devisees of the defendant owner. *Railway Co.*v. *Bohm,*29 Ohio St., 634.

The probate court had no power to appoint The Union Savings Bank & Trust Company, a corporation, as executor. *Schumacher*v. *McCallip,*69 Ohio St., 500.

The probate court did not have the power to hear and determine that a corporation which was not legally competent and had not the capacity to act. as such executor, could be appointed. The probate court, having only statutory power, it follows that it is a court of limited and restricted jurisdiction. Therefore its decrees do not stand in the same category as those of a court of general jurisdiction. There is this vital distinction between the two. The general rule is that the jurisdiction of a court of general jurisdiction will be presumed, and cannot be collaterally attacked, but even to this general rule there are exceptions, one of which is that even a court of general jurisdiction is recjuired to proceed in such manner as .provided by statute, or where the mode of acquiring and exercising jurisdiction is special and statutory, no such presumption will prevail. Work on Courts and Their Jurisdiction, 120, 156, 435.

Where a statute prescribes the qualifications of administrators or executors and in the appointing order is a finding that the party appointed does possess the statutory qualifications, then the order would be conclusive against a collateral attack. Work on Courts and Their Jurisdiction, 455.

Does it not conclusively follow, if the statute *95does not designate the qualifications of an executor, and the finding would show upon its face that the appointee did not possess the statutory qualifications, that it would be void?

Apply now, this principle to the statute (5995), under consideration. Two conditions confront the probate court when it attempts to act under this statute: it must ascertain before it can exercise its power of appointment of'an executor, that there is: first, an executor named in the will; second, that such executor is legally competent to act.

Both of these are jurisdictional facts which precede the right of the probate court to act.

We also call the attention of the court to the fact that when the record contains no finding of facts expressly showing jurisdiction, the jurisdiction of the court rendering the judgment is a matter into which inquiry may be made, within any collateral proceedings. *Scobey*v. *Gano,*35 Ohio St., 553; *Gazette Co.*v. *Dean,*25 W. L. B., 250; *Lessee of Maxom*v. *Sawyer,*12 Ohio, 195; *Lessee of Moore*v. *Starks,*1 Ohio St., 369; *Buchanan*v. *Roy’s Lessee, 2*Ohio St., 252; *Callen*v. *Ellison,*13 Ohio St., 446; *Pennywit*v. *Foote, 27*Ohio St., 615; *Spier*v. *Corll,*33 Ohio St, 236; Work on Courts and Their Jurisdiction, 120.

Cases in which record has been collaterally attacked: *Rammelsberg*v. *Mitchell,*29 Ohio St., 58; *Sheldon’s Lessee*v. *Newton,*3 Ohio St., 494.

In *Hoffman, Admx.,*v. *Fleming,*66 Ohio St., 143, the supreme court say that the probate court has power to appoint executors and had made an appointment in this case, and, therefore, its record could not be impeached.

*96But it first examined the record, not to see whether the probate court had the power to appoint executors generally, but had it the power to appoint the executor in the case under consideration, just as we insist that the question here is, had the court power to appoint the executor in this case?

The order appointing the trust company executor is subject to collateral attack for the reason that it was null and void.

If it is true that a corporation has not the capacity to act as an executor, and cannot comply with the statutes as to rendering an account, under oath, of the proceeds of an estate, it would seem necessarily to follow that it should not be permitted to assume the custody of those proceeds. The plaintiff seeks, in this action, to get into its own possession assets, for which it cannot be required to account in the mode provided by law. It certainly would seem that those who are interested in the estate should have the right to demand that its funds be paid to one whom they may call to account, and that those who are debtors of the estate should not be required to pay their debts to a legally irresponsible person.

The general rules relating to this subject and the decisions of the Ohio courts have been fully presented in the briefs of the original hearing, and it is unnecessary now to do more than cite some additional authorities supporting our claim as to collateral attack. *Manuel*v. *Manuel,*13 Ohio St., 458; *McNeal*v. *Ross,*58 Ohio St., 707; *Trust Co.*v. *Peterson,*76 Neb., 411; *United States*v. *Walker,*109 U. S., 258; *Carpenter*v. *Sloane,*20 *97Ohio, 327; *Hatch*v. *Ferguson,*68 Fed. Rep., 43, 15 C. C. A., 201.

The rule is general that although a probate court has power to appoint a testamentary trustee or guardian, upon the giving of a bond, yet, notwithstanding the general jurisdiction of such a .court in such matters, the appointment is an utter nullity and may be attacked by any one against whom the supposed guardian may bring an action, if, in fact, no bond has been given. *Aldrich*v. *Willis,*55 Cal., 81; *Murphy*v. *Superior Court,*84 Cal., 592; *Poe, Admr.,*v. *Schley,*16 Ga., 364; *Wadsworth*v. *Connell,*104 Ill., 369; *Verret*v. *Aubert, 6*La., 350; *Mitchell, Tutor,*v. *Cooley,*12 Robinson (La.), 636; *Railway Co.*v. *Schmidt, Admr.,*8 C. C., 355; *Wuesthoff*v. *Insurance Co.,*107 N. Y., 580, 14 N. E. Rep., 811.

If the court cannot dispense with the statutory requirement of a bond, where is the power to be found that will enable it to dispense with the statutory requirement of competency, so as to prevent the appointment from being open to collateral attack ?

The exercise by a court, in purely statutory proceedings, of a power not authorized by the statute, is null and void, and may be collaterally attacked. *Murray*v. *Surety Co., 70*Fed. Rep., 341, 17 C. C. A., 138.

If it appears from the record that the court did not have jurisdiction to enter the decree and the particular judgment thereon that it did enter, then that decree and judgment may be collaterally impeached. *Ritchie*v. *Sayers,*100 Fed. Rep., 520; *Ex parte Lange,*18 Wall., 163; *Windsor*v. *98*McVeigh,*93 U. S., 274; *Ex parte Rowland,*104 U. S., 604; *Hans Nielsen, Petitioner,*131 U. S., 175; *Cuddy, Petitioner,*131 U. S., 280; *Scott*v. *McNeal,*154 U. S., 34.

*Mr. Oscar Martin*and *Mr. Edzvard Barton*also argued orally for defendant in error,

Davis, J.

This suit is brought to recover damages for a trespass. It did not abate by the death of the plaintiff; and it was proper to revive it in the name of the decedent’s personal representative. Sections 4975, 5144 and 5148, Revised Statutes; *Dobbs*v. *Gullidge, 4*Dev. & Bat. (20 N. Car.), 68; *McPherson*v. *Seguine,*3 Dev. (14 N. Car.), 153; *City of Seymour*v. *Cummins,*119 Ind., 148; *Conklin*v. *Keokuk,*73 Ia., 343; *Clark’s Admx.*v. *Railway Co.,*36 Mo., 202; *Upper Appomattox Co.*v. *Hardings,*11 Gratt. (Va.), 1; *Darling, Admr.,*v. *Blackstone Mfg. Co.,*16 Gray (Mass.), 187. “It is now the general American doctrine that all causes of action arising from torts to property, real or. personal — injuries to the estate by which its value diminishes — survive and go to the executor or administrator as' assets in his hands.” 1 Cyc., 52.

It is not disputed that the plaintiff in error was appointed by, and gave bond in, the probate court as executor of the deceased plaintiff and has ever since acted as such; bút it is contended here that such appointment is invalid for the reason that the plaintiff in error is legally incompetent to be an administrator or executor. This contention may be entertained here, if the order of the probate *99court may be collaterally attacked in this action by showing that it was made erroneously or without jurisdiction; otherwise it cannot be considered, for it is admitted that no direct attack has been made on the order appointing the executor, in the probate court, or by appeal or error, and it stands unreversed and unmodified to this time.

The probate court is a court of record and its jurisdiction in matters testamentary and in the appointment of administrators and guardians has been broadly given by the Constitution of this state, Article IV, Sections *7*and 8. The jurisdiction is plenary and it may well be doubted whether the legislature, if it chose to do so, could in any respect limit it. But for every purpose of this case, we may assume that the legislature has constitutionally limited the power of appointment to such persons as are “legally competent,” Section 5995, Revised Statutes; and that the jurisdiction of the probate court is thereby restricted to the appointment of such persons only as are designated by the legislature to be “legally competent.”

When the plaintiff died, being at that time a resident of Clark county, and' left a will nominating- the plaintiff in error to be executor of the will, and the will was offered, for probate in the probate court of that county, it was within the jurisdiction of the court, and it became its duty, to appoint the person named in the will to be executor, if there were no obstacles thereto in the law as it then existed. Upon the assumption which we have made, this necessarily involved an inquiry by the court into the legal competency of The Union Savings Bank & Trust Company to be *100an executor. This was eighteen months before the decision in *Schumacher*v. *McCallip et al.,*69 Ohio St., 500, and at a time when, as appears from the statément of facts in that case, probate courts, common pleas courts and circuit courts were entertaining a contrary view of the law. The Probate Court of Clark county, having jurisdiction of the subject-matter and of the estate, had the right and duty to inquire into the legal competency of the trust company: the presumption is that it did so and its judgment in that regard, however- erroneous it might thereafter be found to be, was not void. It was no more void than the judgments of the several courts which decided the same way in *Schumacher*v. *McCallip, supra.*It could not, therefore, be ignored in any collateral proceeding and could not be reviewed or set aside in any other way than in a direct proceeding for that purpose. The defendant, if - it had such an interest in the estate as would- give it the legal standing to do so, might have attacked the appointment in the probate court, or by appeal or error. It did not do so and cannot .complain if it now finds itself bound by the presumptions which arise upon the record. *Moore*v. *Robison,*6 Ohio St., 302; *Shroyer, Gdn.,*v. *Richmond,*16 Ohio St., 455; *Caujolle*v. *Ferrie,*13 Wall., 465.

The counsel for the defendant in error seem to have misunderstood the court in regard to its decision in *Hoffman, Admx.,*v. *Fleming,*66 Ohio St., 143. The plaintiffs in error in that case insisted that it clearly appeared on the face of the record that the probate court did not have jurisdiction to make the appointment. The court went *101into the inquiry only far enough to show that this proposition was not correct. Of course, if it had affirmatively and conclusively appeared that the court had acted without jurisdiction, the order making the appointment would have been entirely void, and not merely erroneous, as it may have been in this case.

The former judgment of this court is vacated and the judgment of the circuit court is reversed and that of the court of common pleas

*Affirmed.*

Shauck, Crew, Summers and Spear, JJ., concur.

Price, C. J.,

dissenting. I think it exceedingly unfortunate that the court has not decided the main question in this case, which is, — has the trust company legal capacity to act as executor under the appointment made in the will of Adolphus H. Smith, deceased? This question was fully argued in the briefs on the first submission of the case to this court, and on the recent rehearing it was fully argued orally. Eminent counsel, not of record have been heard on the subject, but the case is now disposed of — not on that question, which is of state-wide importance — but on the other point, that the judgment of the circuit court is a collateral attack upon the order made by the probate court appointing the trust company executor. The doctrine of collateral attack occupies a vast field and from its almost infinite resources, enough has been gathered to wean the majority away from the *102main issue, upon which it now expresses no opinion. I presume that under these circumstances it is not proper to define or express my own opinion about the capacity of the trust company to serve as executor, although that question is paramount and must soon be met in the courts.

I cannot consent that the judgment of the circuit court is a collateral attack on the order of the probate court. The testator Smith died during the pendency of his suit against the telegraph company. The proceedings to revive the action disclosed the name of the trust company as successor to Smith in the action. Who or what is this trust company that asks the place of successor? That question was no doubt answered in the court of common pleas to the effect that it is an Ohio corporation, having a certain place of residence. Its name, and thereby its character, was made known to that court. In short, the action was revived in the name of a *corporation*and that fact stands *out on*the record of that proceeding.

If the trust company was legally incompetent to take the appointment made in the will, it was likewise incompetent in the proceedings to revive the action. If there was no legal authority to act under the appointment made in the will, there was absolutely no authority to revive the action in the name of the disqualified corporation. It being wholly a question of law and not of fact, and that question of law being apparent of record, the order of the court of common pleas could not give life and authority to the trust company. If the appointment of the corporation as executor was *103illegal in the first instance, the order of revivor was illegal, and if illegal on its very face, it was void because illegal, and could be so treated in a court of review.

The state of the law is a matter always to be reckoned with.

It is not necessary to multiply words, but I believe the doctrine of collateral attack as applied to this case, has been greatly overwrought.