IN RE: WAITS' ESTATE. (1943)

This is an appeal by the Atchison, Topeka and Santa Fe Railway Company from an order denying its motion to set aside the appointment of Charlotte E. Leet as the administratrix of the estate of Frederick Albert Waits, deceased.

Said administratrix had been appointed upon the nomination of the widow of said deceased. The motion to set aside the appointment was based upon the claim that the court was without jurisdiction to make said appointment.

This appeal is taken upon the judgment roll alone and, for the purpose of this discussion, the facts are undisputed. The deceased, a resident of Arizona, was killed in New Mexico in the course of his employment by the appellant railroad company while engaged in interstate commerce. His heirs were his widow and minor son who were residents of Arizona. The purpose of the appointment of an administratrix in this state, as alleged in the petition and found by the court in the order of appointment, was that such appointment was necessary in order to prosecute a claim for damages against the appellant railroad company under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. It was further alleged in the petition “that under the provision of said act, such suit, although prosecuted in the name of the administratrix is for the benefit of the wife and minor son of said decedent, and any recovery in such action belongs to the wife and minor son of said decedent as his heirs at law and is not part of the estate of said decedent; that the foregoing claim for damages is the sole estate of said decedent.” Certain of the allegations of the petition were in the nature of conclusions of law but the foregoing statement sufficiently presents the factual situation.

Before considering the precise question of law presented on this appeal, it is appropriate to refer to certain legal propositions upon which the parties are agreed. It is conceded that no question of the venue of actions under the Federal Employers' Liability Act is involved here. In other words, said act gives the plaintiff in an action brought thereunder, the right to choose his forum and to bring such action wherever the defendant may be found in any state or federal court of competent jurisdiction. 45 U.S.C.A. § 56; Miles v. Illinois Cent. R. Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129; Baltimore & O. R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, 136 A.L.R. 1222. It is further conceded that the cause of action for death under said act can be prosecuted only by a duly appointed personal representative of the deceased and that it cannot be prosecuted by the next of kin for whose benefit the recovery is sought. 45 U.S.C.A. § 51. It is further conceded that when a cause of action for death is so prosecuted by a personal representative under the act, any recovery made in said action is not strictly speaking a part of the “estate” of the deceased, as it is not subject to the payment of the debts of the deceased and is not distributable under the laws of intestate succession or according to the terms of the will of the deceased but such recovery is made by the personal representative as a statutory trustee solely for the benefit of the persons specified in said act. Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686; Michigan Cent. R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, Ann.Cas.1914C, 176; In re Butler, D.C., 20 F.Supp. 995. In this respect, a recovery made by a personal representative in an action for death brought under said act has a status similar to the status of a recovery made by a personal representative in an action for death brought under section 377 of our Code of Civil Procedure. In re Estate of Riccomi, 185 Cal. 458, 197 P. 97, 14 A.L.R. 509; Ruiz v. Santa Barbara Gas, etc., Co., 164 Cal. 188, 128 P. 330; Webster v. Norwegian Mining Co., 137 Cal. 399, 70 P. 276, 92 Am.St.Rep. 181. Finally, it is conceded by appellant that if the deceased had left “estate” in the county where the administratrix was appointed, the court would have had jurisdiction to make the appointment and that the action, thereafter brought by said administratrix against appellant in the superior court of this state, would have been properly brought in said court. In fact, appellant concedes that if the administratrix had been duly appointed as such administratrix by any court having jurisdiction in any state, she could have brought said action in the superior court of this state but respondent calls attention to section 1913 of the Code of Civil Procedure which provides in part that “* * * the authority * * * of an executor or administrator, does not extend beyond the jurisdiction of the government under which he was invested with his authority.”

The contention of appellant on this appeal is that as it affirmatively appeared upon the face of the judgment roll that the deceased was a resident of Arizona, that he died in New Mexico, and that he left no “estate” in California or elsewhere, the order appointing an administratrix in this state was beyond the jurisdiction of the court and void. Appellant cites and relies upon section 301 of the Probate Code and the authorities above cited defining the nature of a recovery for death made by a personal representative in an action brought under either the Federal Employers' Liability Act or section 377 of the Code of Civil Procedure. Concededly there is no authority in this state directly in point on the question before us. Respondent makes three answers to appellant's contention: First, that the existence of a cause of action for death under the Federal Employers' Liability Act, enforceable in this state, is sufficient to confer jurisdiction upon the courts of this state to appoint an administratrix; second, that when the order of the court appointing the administratrix became final, it constituted “a conclusive determination of the jurisdiction of the court” Probate Code, sec. 302; and third, that appellant had no standing to attack the order made by the court. As we believe the first answer to be sufficient, we deem it unnecessary to discuss the second and third.

While there is a conflict of authority on the subject, the weight of authority supports the view that a cause of action for death, while not constituting “estate” or “assets” of the deceased in the strict sense, does constitute “estate” or “assets” for the purpose of conferring jurisdiction to appoint a personal representative. In 21 American Jurisprudence 396, section 42, it is said: “Although there is authority to the contrary, the weight of authority, supported by the better reasoning, is that a right of action for negligent injuries causing death is an asset sufficient to warrant the granting of letters of administration in a state other than the domicile, although the proceeds of the action are not to be distributed according to the usual course. * * * The fact that the statute provides that the money recovered shall go to particular persons and shall not be general assets of the estate subject to the debts of the decedent does not affect the character of the right as assets for the purpose of conferring jurisdiction to appoint an administrator.”

Likewise in 33 Corpus Juris Secundum, Executors and Administrators, p. 894, § 17 b, it is said: “The existence of a cause of action for wrongful death is usually regarded as a sufficient basis for a grant of administration in the jurisdiction where such cause of action arose, or where it may be enforced, even though decedent was a nonresident and left no other assets in the jurisdiction. This view has been maintained notwithstanding a contention that the cause of action did not accrue in decedent's lifetime, that, under the statute, no right of action arose in behalf of anyone until after an administrator had been appointed, or that the administration should properly be in the state of decedent's residence; and a statute providing that the sum recovered for decedent's death shall not be an asset in the hands of the administrator means only that it shall not be an asset subject to payment of decedent's debts.” Numerous authorities are cited in support of the text and numerous authorities are likewise collected in Ann.Cas.1917C, page 1217 et seq.

In the absence of any authority directly in point in this state, we feel impelled to follow the weight of authority as shown by the expressions of the courts of other jurisdictions. We find in the briefs some discussion of policy and of the practical aspects of the determination of the question before us as it affects both those who may desire to prosecute actions for death under the Federal Employers' Liability Act and those who may be called upon to defend such actions. See discussion in Miles v. Illinois Central R. Co., 315 U.S. 698, 62 S.Ct. 827, 832, 86 L.Ed. 1129. But Congress settled the real question of policy by determining the question of venue when it passed said act and, as above stated, no question of venue is involved here. Under the terms of said act, as pointed out by Mr. Justice Jackson in his concurring opinion in the Miles case, “* * * the injured workman or his surviving dependents may choose from the entire territory served by the railroad any place in which to sue, and in which to choose either a federal or a state court of which to ask his remedy.” The only question before us is whether this court should follow the weight of authority and hold that the court had jurisdiction to appoint a personal representative or whether this court should decline to follow the weight of authority and hold that the court had no jurisdiction to appoint a personal representative upon the theory that there existed no “estate” in this state sufficient to confer such jurisdiction. In our view, the failure of the courts of this state to adopt the majority view would result in depriving the surviving dependents in this and many other cases of their right to seek their remedy in the courts of this state in the only manner permissible under the Federal Employers' Liability Act, that is, through a personal representative duly appointed and entitled to sue in the courts of this state. In fact, it is entirely conceivable that the failure of the courts of the several jurisdictions to adopt the majority view might result in depriving surviving dependents, where there was no “estate” in the strict sense, of their right to seek their remedy in any court because of their inability to obtain the appointment of a personal representative in any state. There therefore appears to be sound reason for following the weight of authority on the subject and no good reason for declining to do so.

The order appealed from is affirmed.

SPENCE, Justice.

NOURSE, P. J., and DOOLING, Justice pro tem., concur.