Behm's Estate, In re, 7305

• Decision Date: 20 January 1950
• Docket Number: No. 7305,7305
• Citation: 117 Utah 151,213 P.2d 657,40 A.L.R.2d 490
• Parties: , 40 A.L.R.2d 490 In re BEHM'S ESTATE. BEHM, v. GEE.
• Court: Utah Supreme Court

Page 657

213 P.2d 657

117 Utah 151, 40 A.L.R.2d 490

In re BEHM'S ESTATE BEHM, v. GEE.

No. 7305.

Supreme Court of Utah.

Jan. 20, 1950.

Shirley P. Jones, Salt Lake City, Lewis Larson, Manti, for appellant.

Ray S. McCarty, Salt Lake City, C. Vernon Langlois, Salt Lake City, for respondent.

LATIMER, Justice.

Venna Darlene Behm died in childbirth on February 18, 1947, leaving a husband and two infant daughters surviving her. She was the wife of respondent Edward C. Behm and the daughter of appellant Alma Gee. While appellant believed the attending doctor was liable for his negligent treatment of deceased, the respondent apparently concluded there was little chance of recovering from the doctor or else he did not desire to invest his time and money in litigation, as he was willing to permit appellant to become the principal actor in this family tragedy. As a result of respondent's attitude, it was largely through the efforts of appellant that suit was instituted against the physician for his alleged negligent treatment of the deceased and a settlement effectuated.

Respondent, who claims to have been mentally upset by the death of his wife and not entirely cognizant of the things he was doing, concluded that appellant would be a proper person to represent the family in their litigation and that so long as he, appellant, would proceed with the details, there was little need of respondent concerning himself with the matter. Accordingly, on April 11, 1947, respondent joined in a petition to have appellant appointed administrator of the estate of respondent's deceased wife. On the same date, respondent joined in a petition to have appellant appointed guardian of the estates of the two minor daughters with authority to settle and compromise any claim they might have against the physician for the death of their mother. Pursuant to the petitions, appellant was appointed administrator of the estate of his deceased daughter and guardian of the estates of the granddaughters. Prior to the hearing on these petitions and on or about April 28, 1947, respondent executed a written assignment in which he assigned to appellant any interest he might have in and to any sum that might be recovered from the doctor.

On January 7, 1948, appellant as administrator petitioned the court for authority to settle the claims of the heirs for the sum of $15,000 and for authority to pay his attorney a proportionate part of the recovery. The court issued an order in accordance with the prayer of the petition and thereafter a settlement was effectuated. The draft given to appellant for final settlement cleared through clearing house channels and on January 28, 1948, appellant deposited the money to his credit in his capacity as administrator. No further proceedings appear in the file until April 23, 1948, although the transcript shows that a dispute arose between appellant and respondent and that between the date of the settlement and April 23, 1948, respondent consulted with counsel who in turn discussed compromise solutions with counsel for appellant. No agreement was reached during these discussions, so on the latter date respondent filed a petition in which he requested the court to issue an order requiring appellant to show cause as to why he should not immediately distribute the funds in his possession, and to further show cause why the court should not declare the pretended assignment executed by respondent as being null and void. In substance, the grounds alleged in the petition for defeating the assignment were, unassignability and fraud in inducing appellant to execute the instrument.

Objections to the proceedings were filed by appellant but these were overruled. Appellant then filed his final account and petition for approval and distribution of the funds remaining in his possession. Passing over the incidental expenditures included in the account appellant requested authority to pay an additional attorney's fee and an administrator's fee and to distribute the remaining sum in three equal parts, one-third to himself as assignee of respondent's interest, and two-thirds to himself as guardian of the estates of the two minor children.

Respondent filed him objections to this account and the grounds used as the basis for his objections were substantially the same as those set forth in his previous petition to invalidate the assignment, namely, fraud in procuring the assignment and unassignability. There were some other grounds mentioned but they are of no materiality to this decision as they deal principally with appellant's competency to act as guardian for the infants, and another suit deals with that litigation. However, there is one allegation made by respondent touching on his claim to part of the proceeds which is of importance. This allegation is to the effect that respondent expended the sum of $1652 for expenses of his wife's last illness and burial and that the court should take this element into consideration in determining the amounts to be distributed to the surviving heirs. The prayer of the petition was couched in the following language: 'That the court enter its order distributing the $11,250.00, together with interest thereon, to the respondent as the surviving husband and to the two surviving infants, taking into consideration the expenditures made by respondent and the physical and mental condition of the children.'

The petition for final distribution and the objections thereto came on for hearing before the court below. The trial judge originally confined the testimony to the issues pleaded but as the trial progressed and the breach between the litigants widened the issues became vagrant and wandering. While the findings of fact and conclusions of law deal with the first and final account of appellant and the distribution of the funds remaining in his possession they contain many statements and conclusions which might be very material in a subsequent and properly pleaded action to remove appellant as administrator, but for the purposes of this suit are far outside the framework of the pleadings. We make this observation not in any way of criticism but only so the parties will know why we do not relate all of the facts touching on appellant's improper handling of the funds after he was informed respondent was contemplating legal action.

Discarding what we believe to be immaterial, there remain four important questions to be answered: (1) Did the trial court err in holding that proceeds obtained from third persons for wrongful deaths are not distributed to the surviving heirs in the same proportions as are the assets of an estate in the absence of a will? (2) Did the court err in holding respondent's anticipated portion of the recovery was not assignable? (3) If so, did the court err in holding the assignment was void because of fraud, champerty and no consideration? And (4) Did the court err in directing the clerk of the court to pay respondent's counsel a stated attorney's fee? We treat the questions in the order stated.

This appears to be the first time this court has been presented with the necessity of determining the appropriate distribution to heirs of the proceeds realized from a claim for wrongful death. Generally speaking there are two methods used by courts whem making such a distribution. The first is in accordance with the particular statutes on descent and distribution in probate proceedings. The second is by a proportional method, the proportion being determined by the loss suffered by each heir. We adopt the latter method.

Section 104-3-11, U.C.A.1943, insofar as pertinent, provides as follows: '* * * when the death of a person not a minor is caused by the wrongful act or neglect of another, his heirs, or his personal representatives for the benefit of his heirs, may maintain an action for damages against the person causing the death. * * * In every action under this and the next preceding section such damages may be given as under all the circumstances of the case may be just.'

In keeping with the provisions of this section, suit can be instituted either by the heirs themselves or by the personal representative of the deceased for the benefit of the heirs. The wording of this section compels a conclusion that the legislature intended that the proceeds obtained from the wrongdoer would not be intermingled with other assets of the estate of the deceased. Otherwise, the cause of action would have been vested in the personal representative alone and the amount recovered would have been subjected to administration by him in the same manner as other estate assets.

For many years this court has confirmed the principle that the statutory beneficiaries take separate and apart from the estate. The funds may pass through the hands of the personal representative but the cause of action is a new cause which runs directly to the heirs. In Morrison v. Perry, 104 Utah 151, 140 P.2d 772, 780, we said: '* * * Under our wrongful death statute, 104-3-11, R.S.U.1933, the law does not seek to punish the wrongdoer, but simply to compensate the heirs for the loss sustained. (Citing cases.) It is undisputed in the evidence that deceased's widow paid $819.40 for funeral services and that this amount was reasonable. There is, however, no evidence that the estate was insolvent, nor was there evidence to show whether or not the widow made a claim against the estate for reimbursement, or whether or not she was in fact reimbursed from the estate. If the widow was reimbursed from the estate was she damaged in this particular? The answer is obviously no, if we keep in mind that the estate is separate and distinct from the plaintiff or the statutory beneficiaries in this action. The estate may be damaged to that extent but the estate is not a party under our death statute. (Citing cases.) * * * This court in the case of Mason v. Union Pacific Ry. Co., 7 Utah, 77, 24 P. 796, held that the death statute, 104-3-11,...