
    Gasienica v. Dec.
    (Decided February 4, 1929.)
    
      Mr. Gilbert E. Morgan, for plaintiff in error.
    
      Mr. Milton G. Portmann, for defendant in error.
   Mauck, J.

Stanley Gasienica by his petition in the common pleas sought to recover from Agnes Dec possession of real estate described in the petition, and for rents and profits arising from what he claimed was the unlawful possession of that property by the defendant since July 10, 1920. The defendant answered, pleading first a general denial, and, as a second defense, asserting that prior to 1920 the real property described in the petition was the property of one Joseph Gasienica; that upon his death his estate was administered through the probate court of Cuyahoga county; that that court by proper proceedings therein ordered the property sold; and that it was bought by this defendant under those proceedings. The amended .reply did not deny the averments of the answer, but denied that the defendant had title to the property for the reason that the real estate in question was devised to the plaintiff by a will admitted to probate November 3, 1926, and that the proceedings in the probate court for the sale of real estate were void for the reason that the defendant was the administratrix of the estate, and so could not he a purchaser of the real estate; for the reason that the proceedings to sell the real estate by the administratrix were a fraud upon the court, because the defendant knew that Joseph Gasienica had died testate, leaving a will, and her application for letters of administration were consequently false; and for the reason that defendant was a party to the destruction of the will that was subsequently probated as the spoliated will of Joseph Gasienica. Upon the issues thus joined the case went to trial before a jury. Upon the conclusion of the plaintiff’s testimony, the trial judge entered a directed verdict for the defendant. This proceeding is to reverse the judgment rendered upon that verdict.

The petition in this case made no attack upon the proceedings in the probate court under which the defendant obtained her deed. It is only by reply that an attempt is made to avoid the effect of those proceedings by assailing the validity of the deed. This is a collateral attack on the judgment obtained by the administrator in the probate court. Kingsborough v. Tousley, 56 Ohio St., 450, 47 N. E., 541. Collateral attacks on judgments are tolerated only when the apparent judgment is in fact a nullity. The plaintiff, therefore, upon the probate of the will under which he claims, could ignore the earlier decree under which defendant claims, and maintain his action in ejectment notwithstanding that decree, only on the theory that the decree of the probate court was wholly void, and that the subsequent probate of the will under which he claims ex proprio vigore vested complete title to the real estate in question in the plaintiff, sweeping away everything that was done subsequent to the death of the testator, including the defendant’s deed and the decree upon which it rested.

It is true that in early cases, both in this country and in England, the rule obtained that, where letters of administration were granted on the supposition that the decedent died intestate, such proceedings were deemed absolutely void in case it later developed that there was a will. The rule that now generally obtains is the reverse of this. 11 Ruling Case Law, 101. Approving and elaborating upon the text referred to, an American editor reviewing an English case, Hewson v. Shelley, Ann. Cas., 1917B, page 1128, says: “A sale, by an administrator to whom letters have been granted as in case of intestacy, of the decedent’s land under an order of the ordinary authorizing the sale is not rendered ipso facto void by the subsequent propounding and admitting to probate of a will of the decedent. Nor can such an order of sale be attacked by a legatee under the probated will in an action of ejectment, by evidence that both the purchaser and the administrator knew of the existence of the will, and that the latter fraudulently concealed the fact in applying for and obtaining his appointment as in case of intestacy. Martin v. Dix, 134 Ga., 481, 68 S. E., 80. To the same effect, see Foster v. Brown, 1 Bailey (S. C.), 221, 19 Am. Dec., 672.”

Under the authorities generally prevailing it seems apparent that the court cannot consider the administrator’s sale under which the defendant is holding to be a nullity, unless there is something peculiar about the Ohio law that requires it. The question was before the Supreme Court of this state 100 years ago in Executor of Bigelow v. Administrators of Bigelow, 4 Ohio, 138, 19 Am. Dec., 591. The court then said that the discovery of a will subsequent to the grant of letters of administration only operated as a repeal of the grant of administration, and did not avoid the acts of the administrator, and that the application by the administrator to have a contract of the decedent executed, and his action thereunder, were not rendered void by the subsequent discovery of a will and the appointment of an executor to execute the same. Since that holding we have created a probate court, and it is the proceedings of that court that are now sought to be treated as a nullity. The probate court, however, within its limited jurisdiction, is a court of record in the fullest sense, and its records are no more open to impeachment than were those of the court whose proceedings were.under consideration in Executor of Bigelow v. Administrators of Bigelow, supra; Shroyer v. Richmond, 16 Ohio St., 455; and Wilberding, Admr., v. Miller, 90 Ohio St., 28, 106 N. E., 665, L. R. A., 1916A, 722. Moreover, the Legislature has had occasion to consider the question in the light of the rule laid down in the Bigelow case.

In Section 10618, General Code, prescribing the conditions of the bond of an administrator, one of the conditions of the bond makes it the duty of the administrator to deliver into court his letters of administration in case a subsequent will of the decedent be duly probated, and in Section 10632, General Code, it specifically provides that the executor appointed upon the probate of a will shall succeed to and act on proceedings instituted by an administrator appointed before a will has been probated. We have thus a definite legislative expression recognizing and by implication continuing the legal principle laid down in the Bigelow ease. The rule in Ohio therefore is that, where administration of a decedent’s estate has been granted, the acts of the administrator are not rendered void by the subsequent discovery and probate of the will and the appointment of an executor thereunder. No claim is made in this case that the conceded jurisdiction of the prpbate court to grant an order of sale for real estate was not exercised according to law, so far as appears upon the record. It is not claimed that a petition was not filed; nor is it claimed that there was any want of parties to that proceeding. It is claimed that the defendant was both administratrix and a purchaser at the sale. The record, however, does not sustain this contention, but rather shows that the defendant resigned as administratrix and purchased from another who was regularly appointed in her stead. The record shows that the plaintiff was a son of the decedent, and we must assume that he was a party to the proceedings by the administrator to sell the real estate, and is bound by that proceeding until the same is set aside in a proceeding brought for that purpose. The trial court was right in directing a verdict, because, until set aside, the judgment of the probate court in confirming the sale made by the administrator to the defendant could not be ignored.

Judgment affirmed.

Middleton, P. J., and Farr, J., concur.

Judges Middleton and Mauck, of the Fourth Appellate District, and Judge Fare, of the Seventh Appellate District, sitting in place of Judges Sullivan, Vickery and Levine, of the Eighth Appellate District.  