Berry v. Rutland R. Co.

• Decision Date: 05 May 1931
• Citation: 154 A. 671
• Court: Vermont Supreme Court
• Parties: BERRY v. RUTLAND R. CO.

154 A. 671

BERRY

v. RUTLAND R. CO.

Supreme Court of Vermont. Windham.

May 5, 1931.

Exceptions from Windham County Court; Allen R. Sturtevant, Judge.

Action by Ernest "P. Berry, administrator of the estate of J. P. Burke, deceased, against the Rutland Railroad Company. Judgment for plaintiff, and defendant brings exceptions.

Judgment affirmed, and cause remanded.

Argued before POWERS, C. J., SLACK, MOULTON, and THOMPSON, JJ., and GRAHAM, Superior Judge.

Orrin B. Hughes, of Brattleboro, for plaintiff,

E. W. Lawrence, of Rutland, for defendant.

MOULTON, J.

The decedent, a resident of Middletown, Conn., was killed on a grade crossing by a train of the defendant railroad. This action was brought by his administrator under the provisions of G. L. 3314 and 3315, to recover damages for the benefit of his widow and children. The defendant filed an answer in which the legality of the appointment of the plaintiff as administrator is denied, because, as it is alleged, the probate court was without jurisdiction to appoint him, since neither the decedent nor the defendant was a resident of the probate district and the decedent left no property within it, as appeared by the petition for administration which stated the only goods and estate belonging to the decedent within the state of Vermont to be a "death accident claim upon which suit will be brought against Rutland Railroad Company." The plaintiff demurred to the plea. The demurrer was sustained, the plea adjudged insufficient, and the defendant excepted.

The defendant argues that a cause of action arising out of wrongful death is not a common-law right, but wholly statutory, and no part of the estate of the decedent, within the meaning of G. L. 3179, because while the decedent was alive it did not exist, but came into being only after his death, and is a right in favor of others, the administrator being only the nominal party by whom it is to be enforced. Our attention is also called to G. L. 3316, providing that when an executor or administrator prosecutes an action founded upon a debt, demand, or claim for damages as to which he is only a trustee for the use of another person, and where the claim, although prosecuted in his name, belongs to another person, "the sum or property recovered shall not be assets in the hands of such executor or administrator, but shall be paid over to the person entitled thereto, after deducting or being paid the costs and expenses of the prosecution."

Two things are essential to the jurisdiction of a probate court to grant letters of administration: The death of the person upon whose estate the letters are granted and domicile or assets within the district. If these two facts exist and appear of record as judicially ascertained, the grant of administration is valid however irregular the proceedings may have been; and, if they properly appear of record, the administration is at least prima facie valid, and he who questions it must establish its invalidity. Manning v. Leighton, 65 Vt. 84, 98, 26 A. 258, 24 L. R. A. 684. The want of jurisdiction in the probate court must appear of record, if it is to be contested in this proceeding. G. L. 3182; Mason's Guardian v. Mason, 86 Vt. 279, 280, 84 A. 969; Domenchini's Adm'r v. R. R. Co., 90 Vt. 451, 456, 98 A. 982. G. L. 3179 provides that: "If a person resided out of the state at the time of his death, his will shall be allowed and recorded, and letters testamentary or of administration shall be granted in the probate court of any district in which he had estate."

The right to letters of administration does not depend upon the existence of tangible assets to administer. Mesker v. Bishop, 56 Ind. App. 455, 103 N. E. 492, 496, 105 N. E. 644; Pinney, Adm'r v. McGregory, 102 Mass. 186, 189-193; Manning v. Leighton, supra, 65 Vt. page 99, 26 A. 258, 24 L. R. A. 684. A cause of action for wrongful death, created by statute and to be prosecuted by the administrator for the benefit of the widow and next of kin of the deceased, is sufficient to warrant the grant of administration upon the estate of such deceased person, in any jurisdiction in which the person or corporation causing the death may be found. Hartford & N. H. R. Co. v. Andrews, 36 Conn. 213, 214, 215; Boston & M. R. R. v. Hurd, Adm'r, 47 C. C. A. 615, 108 F. 116, 56 L. R. A. 193, 214, 216; Sharp v. C, N. O. & T. P. R. Co., 133 Tenn. 1, 179 S. W. 375, Ann. Cas. 1917C, 1212, 1214, and annotation pages 1217-1221; In re Mayo's Estate, 60 S. C. 401, 38 S. E. 634, 54 L. R. A. 660, 664-666; Jordan, Adm'r v. Chicago & N. W. R. Co., 125 Wis. 581, 104 N. W. 803, 110 Am. St. Rep. 865, 4 Ann. Cas. 1113, 1 L. R. A. (N. S.) 885, 887, 890 and annotation pages 885, 886; Missouri Pacific R. Co. v. Lewis, 24 Neb. 848, 40 N. W. 401, 2 L. R. A. 67, 71; Howard v. Nashville, etc., R. Co., 133 Tenh. 19, 179 S. W. 380,...