
    No. 708
    KRIEGER v. SKALSKI, Admrx.
    No. 19256.
    Supreme Court
    On motion to certify. Dock.
    July 13, 1925;
    3 Abs. 451.
    32. ADMINISTRATION—Can action be maintained by administratrix for estate, who being a minor, has been removed by Probate Court?
    Attorneys—Joseph A. Robie and Mulholland &Hartmann for Krieger; Eva E. Shaw and Jpbn P. Mantón, for Skalski; all of Toledo.’.
   Virginia Skalski, as administratrix of the estate of Josephine Bardzikowski, filed a petition in the Lucas Common Pleas against Anthony Krieger, seeking to recover damages on account of the alleged wrongful death of Josephine Bardzikowski. Krieger in his answer denied that letters of administration had been issued to Skalski, that she .accepted said appointment and qualified as administratrix, and that she was the duly appointed, qualified and acting administratrix of the estate of Josephine Bardzikowski.

Upon an application filed in the Lucas Probate Court for that purpose, the court vacated and revoked the appointment of Skalski, and removed her as administratrix for the reason that she was not of legal age and incompetent to be appointed as such.

Krieger, in a supplemental answer alleged the vacation and revocation of the appointment of Skalski as administratrix. On Feb. 13, 1923, Wladyslaw Bardzikowski was appointed administrator de bonis non and he filed a motion for an order substituting him in place of Skalski. The motion was overruled as was a demurrer of Skalski to the supplemental answer, and a motion for judgment on the pleadings was granted in favor of Krieger.

Error proceedings were instituted by Skal-ski and the Court of Appeals reversed the judgment and remanded the cause. The case is pending in the Supreme Court on motion to certify. Krieger contends that:

An infant is not legally competent to act as administratrix; that Probate Court had no jurisdiction or power to appoint any person who is not legally competent; that all acts done by her as such are absolutely void; arid that she had no power to commence or maintain this action.

It is claimed that upon the revocation of the appointment of (administratrix and her removal as such, her power and authority as such are terminated and she cannot further prosecute an action commenced by her prior to such removal nor prosecute error to the Court of Appeals; and that upon the appointment of an administrator de bonis non, he is clothed with all the rights of the estate he is appointed to administer.

“An appeal by and in the name of an administrator, taken after he has been discharged, as such administrator and a new administrator has been appointed and qualified,, gives the appellate court no jurisdiction over the estate, or of a cause of action against the estate, and will be dismissed.”  