
    In re Estate of Gingery, Deceased: Marshall v. Heckerman.
    
      Administrators and executors — Who may challenge appointment — “Person interested” construed — Section 10629, General Code — Decedent nonresident of county — Section 10604, General Code — Collateral or direct attack — Motion to revoke appointment.
    
    1. One claiming the estate of a decedent is among the class of “persons interested” within the meaning of Section 10629, General Code, who are entitled to attack the appointment of an administrator.
    2. Such person may challenge the appointment, if made in a county wherein the decedent was not an inhabitant or resident at the time of his death, as required by Section 10604, General Code.
    3. A motion to revoke the appointment under the former section is not a collateral but a direct attack upon the appointment, when such motion is filed under favor of that section and in the same court wherein letters of administration were granted.
    (No. 16949
    Decided November 22, 1921.)
    Error to the Court of Appeals of Henry county.
    One John E. Gingery died on October 30, 1919. The common pleas and probate courts of Henry county having been combined under the provisions of Section 7, Article IV of the Ohio Constitution, Adda A. Heckerman, a daughter of the decedent, applied for letters of administration in the probate division of the'common pleas court, and on November 13, 1919, the Henry county court appointed her as administratrix of the decedent. On January 20, 1920, Persida A. Marshall, a sister of the decedent, alleging that she was made the sole beneficiary of decedent’s estate in his lifetime, filed a motion in the probate division of said court of Henry county, asking that the appointment of Adda A. Heckerman be revoked, because the decedent was hot a resident of Henry county at the time of his death, and alleging that in fact he was a resident of Lucas county. Persida’s claim of interest was based upon the fact that she was the owner and in possession at the time of his death of all the alleged estate that her deceased brother had .theretofore possessed.
    The court overruled the motion of Persida A. Marshall. She therefore prosecuted error to the court of appeals, which court affirmed the judgment by the following entry:
    “Upon consideration whereof the court find, all three members thereof concurring therein, that the judgment rendered by the court below in this cause is against the weight of the evidence. Two of the Judges of the Court hold that said Persida A. Marshall was entitled to apply for revocation of the letters of administration granted to the defendant in error in said Probate Court, and that the judgment of said court overruling the motion of the said Persida A. Marshall to revoke said letters of administration should be reversed for the reason that there is prejudicial error in that it is against the weight of the evidence, but one of the Judges of the Court does not concur in such holding, but holds that the alleged interest of the said Persida' A. Marshall does not bring her within the class of persons who are entitled to challenge the appointment of the said Adda A. Heckerman as adminis-tratrix of said estate, and consequently that the error in overruling the motion for a new trial on the ground that the judgment is against the weight of the evidence is not prejudicial to her, and for that reason only, refused to join in a judgment of reversal.
    “It is therefore considered, ordered and adjudged by this court that the judgment and proceedings of the said court below in said cause in favor of the said defendant in error and against the plaintiff in error be and the same hereby are affirmed.”
    Thereupon plaintiff in error instituted error proceedings in this court for the purpose of reversing the judgment of affirmance so rendered by the court of appeals.
    
      Messrs. Harrington & Dunn, for plaintiff in error.
    
      Messrs. Donovan & Donovan and Mr. Benjamin F. James, for defendant in error.
   Jones, J.

On November T3, 1919, Adda A. Heckerman was ‘appointed administratrix of the estate of John E. Gingery, deceased. On Decern-ber 18, 1919, both as individual and as administra-trix of the estate, she filed an action against Per-sida A. Marshall et al., and on January 20, 1920, 'Persida invoked the jurisdiction of the court that had previously granted letters of administration by filing a motion asking for a revocation of those letters for the reasons stated. The motion to revoke was filed under favor of Section 10629, General Code, which provides that “The probate court may remove any executor or administrator * * * if there are unsettled claims or demands * * * which the court thinks may be the subject of controversy or litigation between him and the estate, or persons interested therein, or for any other cause which in its opinion renders it for the interest of the estate that such executor or administrator be removed.”

As appears from the entry of the court of appeals its judgment of affirmance resulted from the holding of one of its members that Persida A. Marshall had not such interest as would entitle her to challenge the appointment of the administratrix. Persida’s interest, as stated in her motion, was based upon the fact that the decedent in his lifetime had made her the sole beneficiary of his estate. In that phase of the case this claim is reinforced by the fact that following her appointment Adda A. Heckerman, both as an individual, and as adminis-tratrix, filed an action against Persida.

This court is of the opinion that Persida had such an interest in the estate as would permit her to attack the appointment under favor of the statute quoted. We do not undertake to decide upon the merits of the controversy between the sister and daughter of the decedent. Undoubtedly Persida was a “person interested” in the estate. It would be quite difficult to conceive how anyone could be more interested therein than one who claimed the entire estate, which had already become the subject of litigation between the adminis-tratrix and herself. She had a right, therefore, to attack the appointment for the reason that it was unáuthorized by Section 10604, General Code, which provides that letters shall be granted “by the probate court of the county in which he [decedent] was an inhabitant or resident at the time he died.” In the proceeding in the court of appeals, that court, by the concurrence of all the judges, evidently found this issue in favor of Persida.

The claim is made, however, that this is a collateral attack. This claim rests upon the former holdings of this court, that, the probate court having exclusive jurisdiction upon matters of administration, it is presumed that in the application for the original appointment that court passed upon this issue, and presumptively found that the decedent was a resident of Henry county at the time of his death. Such being the case, it is claimed that this presumption, and the validity of the appointment based thereon, cannot be attacked collaterally, and in support of the contention made the following authorities are cited: Union Savings Bank & Trust Co., Exr., v. Western Union Telegraph Co., 70 Ohio St., 89; Hoffman, Admx., v. Fleming, 66 Ohio St., 143, and Shroyer, Gdn., v. Richmond, 16 Ohio St., 455.

Had the attack upon the appointment occurred in a distinct and separate proceeding the claim of the defendant in error would be well founded under the authorities cited; or, applying the principle concretely in this case, had the attack been made in the action filed in the court of common pleas of Henry county by Adda A. Heckerman, as individual and administratrix, against Persida A. Marshall, it would undoubtedly have been a collateral attack made in a separate proceeding in another court. But the attack here under consideration is not collateral but direct, made so distinctly by the provisions of Section 10629, General Code. The distinction between a collateral and direct attack is clearly defined by Williams, J., in Kingsborough v. Tousley, 56 Ohio St., 450, wherein, at page 458, he says: “A direct attack on a judgment has been defined to be one by which the judgment is directly assailed in some mode authorized by law; while a collateral attack is an attempt to defeat the operation of a judgment, in a proceeding where some new right derived from or through the judgment is involved.” In Bank v. Telegraph Co., supra, Davis, J., at page 100, says: “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.” Applying this distinction, therefore, and distinguishing the Ohio authorities cited, it will be readily seen that the attack in this case was not collateral, but was directly made under the authority of a statute providing therefor and in the same court where the original appointment was made.

The journal entry of the court of appeals discloses that upon the issue of fact the judgment of the probate division of the common pleas court of Henry county was found to be against the manifest weight of the evidence, and the court of appeals was divided solely upon the legal principle whether or not Persida was a “person interested” within the meaning of Section 10629, General Code. Since the legal questions involved are the only ones considered .by this court, it follows that two judges of the court of appeals having found that Persida A. Marshall had capacity to invoke the jurisdiction of the probate court, and the entry further showing, by a concurrence of all the members, that the judgment of the latter court was against the weight of the evidence, it was the duty of the court of appeals to reverse the judgment of the trial court and remand the case for further proceedings according to law.

Judgment reversed.

Marshall, C. J., Johnson, Hough, Wanamaker, Robinson and Matthias, JJ., concur.  