Findlay v. Chicago & G. T. R. Co.

• Decision Date: 22 October 1895
• Parties: FINDLAY v. CHICAGO & G. T. RY. CO.
• Court: Michigan Supreme Court

64 N.W. 732

106 Mich. 700

FINDLAY v. CHICAGO & G. T. RY. CO.

Supreme Court of Michigan

October 22, 1895

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Action by Robert Findlay, administrator of the estate of Myrtle Findlay, deceased, against the Chicago & Grand Trunk Railway Company, to recover damages for the death of plaintiff's intestate, alleged to have been caused by defendant's negligence. From a judgment for defendant, directed by the court, plaintiff brings error. Reversed.

Julian G. Dickinson, for appellant.

Geer &amp Williams, for appellee.

MONTGOMERY J.

Plaintiff sues as administrator of the estate of Myrtle Findlay to recover damages for the death of intestate, claimed to have been caused by the negligence of defendant. The circuit judge directed a verdict for the defendant on the ground that the probate court of Wayne county, in which letters of administration were issued, had no jurisdiction. Plaintiff appeals.

1. The petition for administration averred: "That Myrtle Findlay departed this life on the 20th day of October, 1893 leaving no last will and testament, as your petitioner is informed and verily believes; that she was killed near Battle Creek, Mich., in an accident upon the Chicago & Grand Trunk Railway; and that her whole estate consists of a right of action against the Chicago & Grand Trunk Railway Company for negligence causing her death. The said deceased was at the time of her death an inhabitant of the city of Hamilton, in said county of Wentworth, Ontario." It is conceded that if any Michigan probate court had jurisdiction to grant letters of administration the probate court of Wayne county was a proper place to apply, but defendant's contention is that there was no estate of deceased to be administered within this state. Sections 8313 and 8314 of Howell's Annotated Statutes provide: "Whenever the death of a person shall be caused by wrongful act, neglect or default the person who would have been liable if death had not ensued shall be liable to an action for damages. Every such action shall be brought by and in the name of the personal representatives of such deceased person, and the amount recovered in every such action shall be distributed to the persons and in the proportion provided by law in relation to the distribution of personal property of persons dying intestate." Section 5848 of Howell's Annotated Statutes, relative to administration of estates of deceased persons, provides: "If such deceased person at the time of his death reside in another state or country, leaving estate to be administered in this state, administration thereof shall be granted by the probate court of any county in which there shall be estate to be administered." It is contended by defendant that the right of action for causing the death of the intestate does not constitute assets of the estate. We are of the opinion that the sections of the statute above quoted should be construed together. Section 8314 clearly contemplates that an administrator shall institute action, and distribute the funds received, if any. It could not have been contemplated by the legislature that the right to bring this action could be made to depend upon the question of whether the deceased left other property. We think it was clearly the purpose to treat this right of action as assets for distribution, and we hold, in accordance...