In re Daniel's Estate

• Decision Date: 25 October 1940
• Docket Number: No. 32526.,32526.
• Citation: 294 N.W. 465,208 Minn. 420
• Parties: In re DANIEL'S ESTATE. WHITNEY v. DANIEL et al.
• Court: Minnesota Supreme Court

294 N.W. 465

208 Minn. 420

In re DANIEL'S ESTATE WHITNEY v. DANIEL et al.

No. 32526.

Supreme Court of Minnesota.

October 25, 1940.

Appeal from District Court, Mower County; Norman E. Peterson, Judge.

Proceeding in the matter of the estate of Chester T. Daniel, deceased, wherein N. J. Whitney, special administrator of the estate of Dorothy Phillips, deceased, sought to have a general administrator appointed for the estate of Chester T. Daniel, deceased, and wherein Joseph Daniel and others objected to the petition on ground that an order had been entered discharging a special administrator of the estate of Chester T. Daniel, deceased. N. J. Whitney, special administrator of the estate of Dorothy Phillips, deceased, then filed a petition to vacate that order. The probate court denied the petition to vacate. On appeal to the district court, both orders were reversed, and Joseph Daniel and others appeal.

Order of district court affirmed.

Nelson & Plunkett, of Austin, for appellants.

Meighen, Knudson & Sturtz, of Albert Lea, and Yessler, Liddle & Fahey, of Cedar Rapids, Iowa, for respondent.

PETERSON, Justice.

Respondent, who on April 1, 1939, was appointed special administrator of the estate of one Dorothy Phillips, deceased, petitioned the probate court of Mower county on April 8, 1939, as a creditor to appoint a general administrator of the estate of one Chester T. Daniel, deceased. The petition was denied upon appellants' objection that an order of the probate court on January 11, 1938, allowing the account and discharging the special administrator of Chester's estate upon a finding that there were no assets for general administration was res judicata that there were no assets for general administration. Respondent then filed a petition to vacate the order upon the ground that the finding of no assets was contrary to the fact. The probate court denied the petition to vacate. On respondent's appeal to the district court both orders were reversed.

We take the facts as found by the district court upon conflicting evidence. Dorothy Phillips, who was between 14 and 15 years old, was unmarried and lived with her parents in Albert Lea. Chester T. Daniel, who was about 22 years of age, was unmarried and lived with his parents at Austin. Chester, Dorothy, and two other girls went from Albert Lea to a dance near Northwood, Iowa, in Chester's automobile on the evening of November 19, 1934. Early in the morning of November 20, 1934, while driving on highway No. 65 in Iowa, Chester's car collided with a truck driven by one Elzig. Chester was killed instantly. Dorothy received injuries from which she died very shortly afterwards while she was being attended in a doctor's office. The other two girls were also injured.

Dorothy's parents consulted a reputable lawyer at Albert Lea shortly after the accident concerning their rights to recover for Dorothy's death and were advised that a cause of action does not survive against a tort-feasor and that an action would not lie against Chester's estate. The attorney apparently assumed that the law of Minnesota governed. The parents relied on this advice. They had marital troubles and finally were divorced. The father, who had been away from home much before Dorothy's death, then went to Iowa. Some time later the mother went to Michigan.

Early in 1939 Dorothy's mother learned from a lawyer at Cedar Rapids, Iowa, whom she was then consulting about other matters, that under the law of Iowa a cause of action survives against a wrongdoer and that an action would lie against Chester's personal representative. Immediately thereafter she consulted Minnesota lawyers, who instituted the proceedings which resulted in the appointment of respondent, who is a citizen of this state residing at Albert Lea, as special administrator of Dorothy's estate.

There is a finding that respondent in good faith petitioned for general administration of Chester's estate as a creditor with a tort claim for Dorothy's death which he alleges resulted directly from Chester's recklessness and gross negligence.

The Code of Iowa 1935, which is set forth in the margin,^* provides that causes of action shall survive and may be brought notwithstanding the death of the person entitled or liable to the same; that such an action may be brought by or against the legal representatives of the deceased; that damages recovered where the wrongful act produces death shall be disposed of as personal property belonging to the decedent's estate, but that the estate shall not be liable for his debts where he leaves a husband, wife, child, or parent; that the father of a minor, or in case of his death, imprisonment, or desertion of his family, the mother, may recover for the expense and actual loss of service resulting from the death; that the actions founded on injuries to the person must be brought within two years; and that the time during which the defendant is a nonresident of Iowa shall not be included in computing the period of limitation.

Meanwhile the special administration proceedings had been had on Chester T. Daniel's estate, all ex parte and without notice of any kind. The petition for the appointment of Chester's brother as special administrator was filed, and his appointment as such was made on January 3, 1935. The special administrator's account, petition for its allowance, and the representative's discharge were filed and the order allowing the account and discharging the representative was made on January 11, 1938. No inventory was filed. There were no findings by the probate court in the special administration as to who was entitled to his estate or who were his next of kin and heirs.

Chester's special administrator recovered a judgment in federal court against Elzig for wrongfully causing Chester's death, the amount recovered to be distributed pursuant to the statute.

Both the petition for appointment of the special administrator and that for the allowance of his final account and discharge state, and the order of January 11, 1938, allowing the account and discharging him recites, that there were no assets except the claim for Chester's wrongful death.

Contrary to the statements in the petitions and the order of the probate court, the fact was that Chester died, as the court below found, the owner of personal property of substantial value consisting of the automobile in which he was riding at the time of his death, which was wrecked so badly as to be junk, a motorcycle, a watch and other personal effects, some wages due from his employer, and a policy of insurance covering liability for tort arising from the operation of the automobile. There had been no administration upon such property.

The court below concluded that both orders of the probate court should be reversed and directed the probate court to appoint an administrator and to proceed with a general administration of the Chester T. Daniel estate.

Here, as below, the appellants contend that the order allowing the special administrator's account in the Chester T. Daniel estate and discharging him is res judicata that there are no assets to administer and operates as a bar to the granting of administration upon his estate, that the alleged cause of action for Dorothy's death is barred by the statute of limitations of both Iowa and Minnesota, and that the respondent and those interested in the Dorothy Phillips estate are barred from any relief herein by laches.

1. Approval of the final account and discharge of an executor or administrator is not conclusive that the estate has been fully administered so as to preclude further administration upon unadministered assets. In re Estate of Gilroy, 193 Minn. 349, 355, 258 N.W. 584. The question was fully considered in the Gilroy case, and we do not deem it necessary to add anything to what we there said.

The undeniable fact is that there has been no administration upon the property which Chester owned at the time of his death. The amount recovered for Chester's death was no part of his estate. The probate court had no jurisdiction to control the action in which the recovery was had or to direct the distribution of the fund after it was recovered. Vukmirovich v. Nickolich, 123 Minn. 165, 143 N.W. 255. The property which was subject to administration was not administered. The probate court erred in denying respondent's petition to appoint a general administrator and was properly reversed by the district court.

2. It is elementary that the lex loci governs in all matters relating to the right and the lex fori in all matters relating to the remedy. In the last analysis the applicability of the Iowa statute of limitations depends on whether it relates to the one or to the other.

Survivability of a cause of action relates to the right and is governed by the law of the place where the act occurred upon which the right or liability rests. The law of Iowa that a cause of action against the tort-feasor survives governs. The right of action based on the Iowa survival statute may be enforced in this state as a matter of comity, although we do not have a similar statute. Chubbuck v. Holloway, 182 Minn. 225, 234 N.W. 314, 868; Kertson v. Johnson, 185 Minn. 591, 242 N.W. 329; Brown v. Chicago & N. W. Ry. Co., 129 Minn. 347, 152 N.W. 729 (Iowa statute); Restatement, Conflict of Laws, § 390. Conversely, it is held under the rule that where the cause of action does not survive under the law of the place where the wrongful injury was caused, no action may be maintained although under the law of the forum such actions do survive. Ormsby v. Chase, 290 U.S. 387, 54 S.Ct. 211, 78 L.Ed. 378, 92 A.L.R. 1499; Friedman v. Greenberg, 110 N.J.L. 462, 166 A. 119, 87 A.L.R. 849.

Under the law of Iowa the original cause of action of the injured party against the tort-feasor survives for the benefit of designated beneficiaries. The Iowa statutes do not create a new cause of action for wrongful death. In Boyle v. Bornholtz, ...