First Nat. Bank of Amherst, Mass. v. Fulcher

• Decision Date: 20 March 1954
• Docket Number: Civ. No. 322.
• Citation: First Nat. Bank of Amherst, Mass. v. Fulcher, 119 F.Supp. 759 (W.D. Va. 1954)
• Parties: FIRST NAT. BANK OF AMHERST, MASS. v. FULCHER.
• Court: U.S. District Court — Western District of Virginia

119 F. Supp. 759

FIRST NAT. BANK OF AMHERST, MASS. v. FULCHER.

Civ. No. 322.

United States District Court, W. D. Virginia, Lynchburg Division.

March 20, 1954.

Edmunds, Whitehead, Baldwin & Graves, Lynchburg, Va., for plaintiff.

Caskie, Frost, Davidson & Watts, Lynchburg, Va., for defendant.

BARKSDALE, District Judge.

This is an action for death by wrongful act instituted under the provisions of the Virginia Statute, Sec. 8-633 et seq., Code of Va., by The First National Bank of Amherst, Massachusetts, a national banking institution and citizen of Massachusetts, which has duly qualified in the appropriate Massachusetts court as Executor of the Estate of Asa J. Hastings, deceased, who, at the time of his death resulting from an automobile accident in Virginia, was a citizen of Massachusetts. Plaintiff has not qualified as personal representatative in Virginia, nor to do business in Virginia. The defendant, James Frederick Fulcher, is a citizen of Virginia residing in this District. In instituting this action, the Executor is acting for the benefit of Donald E. Hastings, Robert M. Hastings and Philip J. Hastings, sole surviving children of Asa J. Hastings, all of whom are citizens and residents of Massachusetts, and under the Virginia statute would be entitled to share any recovery which might be had in such proportions as the jury might determine, "free from all debts and liabilities of the deceased;" Sec. 8-638, Code of Va.

Speaking of actions for death by wrongful act, the Virginia statute, Sec. 8-634, Code of Va., provides:

"Every such action shall be brought by and in the name of the personal representative of such deceased person * * *."

Diversity of citizenship and the jurisdictional amount are present, but the defendant has filed his motion to dismiss this action upon the ground that the plaintiff, although it has duly qualified as personal representative of the decedent in Massachusetts, has not qualified, and cannot qualify, as such in Virginia, and that only a personal representative duly qualified in Virginia has the right to maintain an action for death by wrongful act in this Commonwealth. Defendant relies upon Section 26-59 of the Code of Virginia, the pertinent provisions of which are as follows:

"* * * No person not a resident of this State nor any corporation not authorized to do business in this State shall be appointed or allowed to qualify or act as personal representative, or trustee under a will, of any decedent, or appointed as guardian of an infant or committee of any person non compos mentis, unless there be also appointed to serve with the nonresident personal representative, trustee, guardian or committee, a person resident in this State or corporation authorized to do business in this State: * * *."

This statute was originally enacted in 1924, and the General Assembly of 1950 amended the statute by the insertion of the italicized words in the above quotation. No legislative history is available to disclose the purpose of the amendment, nor is there anything helpful in the Code annotation.

I was required to pass upon the precise question here presented in 1946, and at that time held that the nonresident personal representative might maintain an action in this Court for death by wrongful act under the Virginia statute. LaMay v. Maddox, D.C., 68 F.Supp. 25. However, defendant's counsel now contend that the 1950 amendment of Section 26-59 requires a different conclusion. It seems that this question has never been decided by the Supreme Court of Appeals of Virginia, nor any other Virginia court so far as I know.

In the case of Rybolt v. Jarrett, 4 Cir., 112 F.2d 642, 644, it was decided that a nonresident personal representative could not maintain an action for death by wrongful act in West Virginia under the West Virginia Statute, by reason of West Virginia Code 1937, Chapter 44-5-3, as follows:

"Notwithstanding any other provision of law, no person not a resident of this State shall be appointed or act as executor, administrator, curator, guardian, or committee, except that a testator who is a nonresident of the State at the time of his death may name, and there may be appointed and act, a nonresident as his executor, and except that for the guardian of an infant who is a nonresident of the State there may be appointed the same person who was appointed guardian at the domicile of the infant."

In his opinion, Judge Dobie, speaking for the court, discussed at some length the Virginia Statute, Sec. 26-59, Code of Va. He said:

"Further, the Virginia Statute directed against non-resident personal representatives is by no means so rigid and so unrelenting as the similar statute in West Virginia."

It is true that the words "or act" were not in the Virginia statute at the time of the Rybolt decision, but it seems to me that it is clearly inferable from Judge Dobie's opinion that he did not consider that the Virginia statute, in its then form, would preclude the maintenance in Virginia of an action for death by wrongful act by a nonresident personal representative. In differentiating the Virginia statute from the West Virginia statute, Judge Dobie did rely to some extent upon the absence of the words "or act". However, I do not believe he considered this difference of paramount importance. He seemed particularly impressed by the fact that the West Virginia statute begins: "Notwithstanding any other provision of law". As to this phrase, he said:

"This, we think, is quite significant. If it means anything at all, it would appear to indicate that the draftsman of this statute knew fully that there were other provisions in the West Virginia Statutes applicable to personal representatives, and, when this restrictive statute was enacted, the Statute of Death by Wrongful Act had been on the statute books of West Virginia for a number of years. It would thus seem that by this phrase, the legislature must have contemplated so important a statute as the West Virginia Statute of Death by Wrongful Act." 112 F.2d at page 645.

However, in considering the question here presented to me, I am even more impressed by Judge Dobie's statement:

"Further, the problem is one to be determined entirely by the interpretation of the statutes and policy of the State of West Virginia." 112 F.2d at page 643.

Prior to the enactment of the restrictive statute, Sec. 26-59, Code of Va., a somewhat similar question was decided in this court by my distinguished predecessor, Honorable Henry Clay McDowell: Pearson v. Norfolk & W. R. Co., D.C.W.D.Va., 286 F. 429. There a North Carolina personal representative instituted his action in this court against a citizen of Virginia, seeking to recover damages under the West Virginia Death by Wrongful Act Statute, plaintiff's decedent having been killed in West Virginia. Judge McDowell held that the North Carolina personal representative might maintain his action in this court. In the course of his opinion, he said 286 F. at pages 430-431:

"In this state there is no statute giving foreign representatives a right to sue, and the rule that a foreign representative may not sue in the courts of this state to recover assets of his decedent's estate for administration remains in full force. Dickinson v. McCraw, 4 Rand. (Va.) 158, 160; Andrews v. Avory, 14 Grat. (Va.) 229, 239, 73 Am.Dec. 355; Fugate v. Moore, 86 Va. 1045, 1047, 11 S.E. 1063, 19 Am.St.Rep. 926. However, I can think of no reason why this rule should apply to the case at bar. The only even passably good reason for the rule is the protection of possible local creditors of a decedent. In 1 Robinson's Practice (new), p. 161 (A Virginia authority), it is said:

"`For the present it will suffice to state the reason of the rule which is, that a recovery under a title derived from a foreign grant of administration would withdraw the effects from the operation of the laws to which they are properly subject, and commit them to the administration of persons in no wise amenable to those laws, so that instead of being protected in their rights by the power of their own government, the resident creditors would be sent abroad to assert their claims in foreign courts

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