Argument for Plaintiff in Error.

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 executorwhether it was competent to receive such appointment. At that time Sections 3821c, 3821d, 3821e, 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.

Argument for Defendant in Error.

Messrs. Martin & Martin; Mr. Robert S. Alcorn 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.

Tele

The action was in effect an illegal appropriation of the trees to the use of the defendant. graph 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

Argument for Defendant in Error.

to 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 required 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

Argument for Defendant in Error.

does 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.

Argument for Defendant in Error.

But 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 Walker, 109 U. S., 258; Carpenter v. Sloane, 20