In re Bailey's Estate

• Decision Date: 28 July 1909
• Docket Number: 1,811.
• Citation: 103 P. 232,31 Nev. 377
• Parties: In re BAILEY'S ESTATE. v. BAILEY. SAN PEDRO, L. A. & S. L. R. CO.
• Court: Nevada Supreme Court

103 P. 232

31 Nev. 377

In re BAILEY'S ESTATE.

SAN PEDRO, L. A. & S. L. R. CO. v. BAILEY.

No. 1,811.

Supreme Court of Nevada

July 28, 1909

Appeal from District Court, Washoe County.

Proceedings by the San Pedro, Los Angeles & Salt Lake Railroad Company against Lucille Bailey to revoke letters of administration granted to respondent on the estate of Claude Bailey deceased. From an order refusing to revoke said letters petitioner appeals. Reversed.

Cheney Massey & Price and F. R. McNamee, for appellant. Summerfield & Curler, for respondent.

SWEENEY J.

Claude Bailey, deceased, while in the employ of the appellant, was killed by the explosion of an engine in Lincoln county, Nev., dying on the 12th day of August, 1907, near Arden spur track, in Lincoln county, Nev. At the time of his death in Lincoln county, Nev., there was found in the possession and on the person of said Claude Bailey about $1.90, a gold ring, and an open face gold watch, and it is not shown that said Claude Bailey left any other property in the state of Nevada, or any rights save a right of action against appellant for damages for the alleged wrongful death of the deceased, due to alleged neglect of appellant. At the time of his death the said Claude Bailey was a resident and citizen of the state of California. Lucille Bailey, the respondent, is the widow of said deceased, and also a resident of California. On the 7th day of April, 1908, respondent filed her petition in the district court of Washoe county, Nev., praying for letters of administration upon the estate of said Claude Bailey without bond, upon her taking her oath of office therein; said petition being subscribed and sworn to before a notary public in San Bernardino county, Cal. On the 18th day of April, 1908, her petition was heard, and the court directed by order that letters of administration issue to respondent upon her taking the oath of office. On June 1, 1908, respondent attempted to qualify as administratrix by taking the oath required, and thereupon, without bond, letters of administration were issued, and no bond has ever been given by Lucille Bailey as administratrix of the said estate. On the same day and date, June 1, 1908, Lucille Bailey, as administratrix of said estate of deceased, filed her complaint in said district court, asking for $84,000 damages against the appellant herein, as damages for the alleged wrongful death of Claude Bailey, and in this complaint she alleges that she is a resident and citizen of San Bernardino county, state of California. It further appears that said Lucille Bailey, from the date she qualified as administratrix and filed said complaint against the appellant, has not resided in, nor become a resident of, the state of Nevada. On the 15th day of October, 1908, the appellant, which is engaged in the operation of a railroad in California and Nevada, which said railroad passes only through Lincoln county in Nevada, and does business only in Lincoln county in Nevada, and has its process and other agents in Lincoln county, Nev., filed a petition in said Washoe county district court, duly praying for the revocation of the letters of administration formerly issued to respondent, Lucille Bailey. This appeal is taken from an order of the said district court, entered on the 26th day of October, 1908, refusing to revoke said letters of administration theretofore issued by said court to respondent.

Appellant assigns seven alleged errors of the lower court wherein it erred in refusing to revoke the letters of administration issued to Lucille Bailey; but, before considering these errors, we will pass upon the objection of counsel for respondent, urging that no appeal lies from an order refusing to revoke letters of administration. In this contention of respondent we disagree.

Section 3041 of Cutting's Compiled Laws of Nevada (St. 1897, p. 158, c. 106, § 255) provides: "Sec. 255. Any person interested in, affected by, and aggrieved at the decision and decree of the district court appointing an executor or administrator, revoking letters, allowing a final account, or disallowing it, decreeing a distribution or partition, order or decree, confirming or setting aside a report of commissioners, admitting or refusing a will for probate, and any other decision wherein the amount in controversy equals or exceeds, exclusive of costs, one thousand dollars, may appeal to the Supreme Court of the state, to be governed in all respects as an appeal from a final decision and judgment in action at law." From a mere reading of this section, and the circumstances disclosed by the record in this case, it is clearly manifest to us that an appeal will lie from the order refusing to revoke letters of administration.

Appellant maintains that, upon the record showing that respondent was at the time of her appointment as administratrix a resident and citizen of the state of California, and ever since has been a resident and citizen of the state of California, and never was a resident or citizen of the state of Nevada, the order appointing her administratrix is void, and the court erred, when these facts were brought properly to its attention, in refusing to revoke said letters of administration. There is no express provision in the laws of the state of Nevada prohibiting the court from appointing a nonresident as administratrix. Section 2823 of our Compiled Laws (St. 1897, p. 124, c. 106,§ 38), which treats of those entitled to letters of administration on an estate of a person dying intestate, provides: "Sec. 38. Administration of the estate of a person dying intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled in the following order: First--the surviving husband or wife, or such person as he or she may request to have appointed. Second--the children. Third--the father or mother. Fourth--the brother. Fifth--the sister. Sixth--the grandchildren. Seventh--any other of the kindred entitled to share in the distribution of the estate. Eighth--the creditors. Ninth--the public administrator. Tenth--any of the kindred, not above enumerated, within the fourth degree of consanguinity. Eleventh--any person or persons legally competent." There is nothing whatever in this section to indicate that the party applying for letters of administration shall be a resident. Section 2826 of our Compiled Laws (St. 1897, p. 124, c. 106, § 41), which enumerates those persons who are disqualified from receiving letters of administration, provides: "Sec. 41. No person shall be entitled to letters of administration who shall be: First, under the age of majority; or, second, who shall have been convicted of an infamous crime; or, third, who upon proof shall be adjudged by the court incompetent to execute the duties of the trust, by reason of drunkenness, improvidence or want of integrity or understanding." In this section we find no intimation from our Legislature disqualifying a person from receiving letters of administration because of the fact that he may be a nonresident. The principle is well established in the construction of statutes that, where certain things are enumerated as disqualifications, then all other things are excluded; this principle being expressed in the maxim, "Expressio unius est exclusio alterius." 26 Am. & Eng. Ency. of Law (2d Ed.) p. 604, and note 6; Va. & Truckee R. R. v. Elliott, 5 Nev. 358; Dewhurst v. Fielden, 7 M. & G. (Eng.) 182, 49 E. C. L. (Eng.) 182; Rex v. Cunningham, 5 East, 478; Johnson v. S. P. Co., 117 F. 462, 54 C. C. A. 508.

Section 2834 of the Compiled Laws of Nevada (St. 1897, p. 125, c 106, § 49), which further treats of letters of administration, strongly intimates, in fact expressly implies, that a nonresident can under certain circumstances become entitled to letters of administration. Said section provides: "Sec. 49. Administration may be granted to one or more competent persons, although not entitled to the same, at the request of the person entitled to be...