Alameda v. Spenser

• Decision Date: 12 November 1938
• Docket Number: No. 2363.,2363.
• Parties: FRANK ALAMEDA, ADMINISTRATOR OF THE ESTATE OF AWILI SHAW, ALSO KNOWN AS MRS. ALBERT K. SHAW, DECEASED, v. A. S. SPENSER, J. PATRICK COCKETT, SAMUEL ALO, CONSTITUTING THE BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF THE COUNTY OF MAUI, TERRITORY OF HAWAII.
• Court: Hawaii Supreme Court

34 Haw. 667

FRANK ALAMEDA, ADMINISTRATOR OF THE ESTATE OF AWILI SHAW, ALSO KNOWN AS MRS. ALBERT K. SHAW, DECEASED,

v.A. S. SPENSER, J. PATRICK COCKETT, SAMUEL ALO, CONSTITUTING THE BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF THE COUNTY OF MAUI, TERRITORY OF HAWAII.

No. 2363.

Supreme Court of the Territory of Hawai‘i.

Submitted October 21, 1938.

Decided November 12, 1938.

OPINION TEXT STARTS HERESUBMISSION UPON AGREED FACTS.

Syllabus by the Court

A cause of action created by statute which is by the statute made unassignable does not survive to the administrator of the beneficiary under the statute unless the statute creating the cause of action or some other statute makes specific provision for its survival.

E. Vincent (Thompson, Wood & Russell with him on the briefs) for administrator.

E. R. Bevins, County Attorney of Maui (Wendell F. Crocket, Deputy County Attorney of Maui, with him on the briefs), for board of trustees.

PETERS AND KEMP, JJ., AND CIRCUIT JUDGE LE BARON IN PLACE OF COKE, C. J., ABSENT.

OPINION OF THE COURT BY KEMP, J.

The agreed statement of facts upon which this case is submitted sets forth that the plaintiff is the administrator of the estate of Awili Shaw and the defendants constitute the board of trustees of the police pension fund of the County of Maui; that Awili Shaw, as the widow of a deceased police officer, was granted a pension of $25 a month on December 11, 1920, by the board of trustees of the police pension fund of the County of Maui; that said Awili Shaw was paid the pension of $25 per month and no more during the period from April 29, 1929, to June 30, 1933, notwith-standing the provisions of Act 144 of the Session Laws of 1931 amending Act 9, Session Laws of 1929; that Awili Shaw died intestate on November 19, 1936, leaving as her heirs-at-law two adult children and that shortly thereafter the plaintiff Frank Alameda was appointed administrator of her estate; that during the life of Awili Shaw there was unpaid under the provisions of said Act as arrears of the pension the sum of $1303.90 and that said amount was due and unpaid to the said Awili Shaw during her lifetime; that on November 3, 1937, at a regular meeting of said board there was presented to said board the claim of the administrator herein for the payment of arrears of the pension of the said Awili Shaw, deceased, in the amount of $1303.90 but said board refused to allow said claim or to pay the same. The administrator asks judgment that said arrears of pension is an asset of the estate of Awili Shaw, deceased, and that the board of trustees be directed to pay said sum to the administrator. The board requests judgment that said arrears is not an asset of the estate of Awili Shaw, deceased, and that said claim should not be paid by the board of trustees.

Counsel for the board admit that in view of the decision in Palea v. Rice, 34 Haw. 150, if Awili Shaw were alive she could maintain an action for the arrears in the pension. They justify the board's refusal to pay the administrator's claim solely on the proposition that said arrears of pension is not such a claim as survives the pensioner and becomes payable to the administrator of the pensioner's estate.

The statutes establishing the pension system for police officers and their dependents after their decease were thoroughly analyzed by this court in Palea v. Rice, supra, to which reference may be made. None of the matters there decided are challenged in this case. Other parts of the statute, however, are relied upon.

Section 7908, R. L. 1935, is in part as follows: “All pensions granted and payable out of the pension fund shall be exempt from seizure or levy upon attachment, execution, supplemental process and all other process whether mesne or final and shall not be subject to sale, assignment or transfer by any beneficiary.”

In 1 C. J., § 303, p. 174, it is said: “At common law, as a general rule, the qualities of assignability and survival are tests each of the other, and it is therefore said that as a rule assignability and survivability of causes of action are convertible terms. * * * Whether an action will lie by or against an executor or administrator is sometimes mentioned as a test as to whether a cause of action survives; but this is obviously no test at all, since it must be ascertained whether a cause of action survives before it can be determined whether an executor or administrator can sue or be sued thereon. A cause of action created by statute does not survive unless declared to do so by the statute itself or unless provision therefor is made by some other statute.”

Counsel for the board insist that since the cause of action which they admit Awili Shaw had in her lifetime was created by statute and is by said statute made unassignable said cause did not survive, there being no declaration of survival in said statute or in any other statute.

They cite the above provision of the statute, the excerpts from Corpus Juris above quoted and Ingersoll v. Gourley, 72 Wash. 462, 130 Pac. 743, as the authorities sustaining their contention.

The authorities cited unquestionably support the board's contention. Some other authorities to the same effect are: 1 Am. Jur., § 80, p. 69, where it is said: “Whether an action survives depends on the substance of the cause of action, not on the form of proceeding to enforce it. One test that is quite uniformly used to determine survivability is whether or not the cause of action may be assigned. Ordinarily, causes of action which are not assignable do not survive.”

In The People v. Life Indemnity Co., 261 Ill. 513, 104 N. E. 219, it is said: “Where a right of action is so entirely personal that a person, by contract, cannot place it beyond his control the action will not survive; that, as a general rule, assignability and survivability of causes of action are convertible terms.” This was a suit to compel an insurance company to accept payment of premiums on a policy of insurance on the life of plaintiff who died while the suit was pending. The order abating the suit was grounded on the fact that the cause was so personal to plaintiff that he could not assign it and it could not therefore be proceeded with after his death. Selden v. Illinois T. and S. Bank, 239 Ill. 67, 87 N. E. 860, was a suit by a sister and sole heir-at-law of one Shipman, deceased, to contest his will. The contestant died pendente lite and her executor and certain of her heirs were substituted for her. On appeal the supreme court after holding that the right to contest a will in Illinois is purely a creature of statute; that causes of action created by statute do not survive; that causes of action that are not assignable do not survive and that the right to continue the prosecution of a suit upon the death of a plaintiff is limited to those cases in which the cause of action survives, held that said cause must abate.

In the Federal courts the survivability of causes of action created by Act of Congress is tested by the principles of the common law and is held to survive or not according to those principles unless the Act giving the causes of action contains a specific provision for their survival. (1 Am. Jur., § 97, p. 77.)

The contention of counsel for the board would seem to be the proper view of the matter unless there are other...