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.

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.