Berry v. Rutland R. Co.

• Decision Date: 05 May 1931
• Citation: 154 A. 671,103 Vt. 388
• Parties: ERNEST F. BERRY, ADMR. v. RUTLAND RAILROAD COMPANY
• Court: Vermont Supreme Court

154 A. 671

103 Vt. 388

ERNEST F. BERRY, ADMR. v. RUTLAND RAILROAD COMPANY

Supreme Court of Vermont

May 5, 1931

Opinion filed May 5, 1931.

Special Term at Montpelier, March, 1931.

Executors and Administrators---Essentials of Jurisdiction To Grant of Letters of Administration---Prima Facie Jurisdiction---Burden of Proof---Necessity That Want of Jurisdiction Appear of Record When Question Raised in Collateral Proceeding---Existence of Tangible Assets To Administer Not Prerequisite to Jurisdiction---Existence of Cause of Action for Wrongful Death as Justifying Grant of Administration---G. L. 3316---"Assets."

1. Essentials to jurisdiction of probate court to grant letters of administration are death of person upon whose estate letters are granted and domicile or assets within district.

2. Where such essentials to jurisdiction of probate court to grant letters of administration exist and appear of record as judicially ascertained, grant of administration is prima facie valid, however irregular proceedings may have been.

3. Where grant of administration is prima facie valid, burden is on person questioning validity thereof to establish its invalidity.

4. Want of jurisdiction in probate court must appear of record, if it is to be contested in proceeding by administrator to recover for wrongful death of his intestate.

5. Right to letters of administration does not depend upon existence of tangible assets to administer.

6. Cause of action for wrongful death, created by statute to be prosecuted by administrator for benefit of widow and next of kin of deceased, is sufficient to warrant grant of letters of administration upon estate of such deceased person in any jurisdiction in which person or corporation causing death may be found.

7. Provision of G. L. 3316, that sum recovered for wrongful death in action by administrator shall not be asset in hands of administrator, held to mean only that it shall not be asset subject to payment of decedent's debts.

ACTION OF TORT by administrator of the estate of J. B. Burke deceased, under the provisions of G. L. 3314, 3315, for the death of his intestate who was killed on a grade crossing by a train of defendant railroad. Answer denying jurisdiction of probate court appointing administrator. The plaintiff demurred. Trial by court at the September Term, 1930, Windham County, Sturtevant, J., presiding. Demurrer sustained, and answer held insufficient. Judgment pro forma for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed, and cause remanded with leave to the defendant to apply.

E W. Lawrence for the defendant.

Orrin B. Hughes for the plaintiff.

Present POWERS, C. J., SLACK, MOULTON, and THOMPSON, JJ., and GRAHAM, Supr. J.

OPINION

MOULTON

The decedent, a resident of Middletown, Connecticut, 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. Out 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 Admr. v. R. R. Co., 90 Vt. 451, 456, 98 A. 982. G. L. 3179 provides that: "If a person resides 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; Pinney, Admr. v. McGregory, 102 Mass. 186 189-193; Manning v. Leighton, supra, 65 Vt. at page 99, 26 A. 258, 24 L.R.A. 684. A cause of action for wrongful death, created by statute and to be...