IN RE ESTATE OF SUMLER

• Decision Date: 19 December 2002
• Docket Number: No. 22,152.,22,152.
• Citation: 62 P.3d 776,133 N.M. 319,2003 NMCA 30
• Parties: In the Matter of the ESTATE OF Kirsten Janay SUMLER, Deceased.
• Court: Court of Appeals of New Mexico

62 P.3d 776

133 N.M. 319

2003 NMCA 30

In the Matter of the ESTATE OF Kirsten Janay SUMLER, Deceased.

No. 22,152.

Court of Appeals of New Mexico.

December 19, 2002.

Dick A. Blenden, Phil Blenden, Blenden Law Firm, Carlsbad, NM, G.L. Spence, Robert P. Schuster, Kent W. Spence, Larissa A. Ferullo, Spence, Moriarity & Schuster, L.L.C., Jackson, WY, for Appellants.

Stuart D. Shanor, Richard E. Olson, Rebecca Nichols Johnson, Hinkle, Hensley, Shanor & Martin, L.L.P., Roswell, NM, Richard E. Griffin, Robert P. Latham, Jackson Walker L.L.P., Dallas, TX, for Appellee.

OPINION

ALARID, Judge.

{1} Appellee's motion for rehearing having previously been granted by our Court, and our original opinion filed on September 23, 2002, having been withdrawn by order of the Court, the following opinion is hereby substituted as the opinion of the Court.

{2} Although this case is nominally an appeal from an order appointing Appellee as the personal representative of a deceased child's estate, the actual controversy between the parties is over who should control and profit from the action for the child's wrongful death. We take this opportunity to address two important questions concerning wrongful death actions. First, applying settled law, we hold that the district court's appointment of a surviving parent as the personal representative of the deceased child's estate is neither necessary nor sufficient authority for the parent to prosecute an action for the wrongful death of a child. Second, addressing a matter of first impression, we hold that under NMSA 1978, § 41-2-3, a surviving parent's right to share in the proceeds of an action for the wrongful death of a child vests at the time of the child's death, and that upon the parent's death the parent's interest in wrongful death proceeds passes to the parent's estate.

BACKGROUND

{3} Five-year-old Kirsten Janay Sumler (Kirsten) was severely burned by the explosion of a natural gas pipeline. Kirsten died within hours of the explosion. Her mother, Amanda Sumler Smith (Mother), also was severely burned. Mother survived Kirsten's death, but thereafter died from her own injuries.

{4} Appellee, Paul E. Dawson (Father), is Kirsten's natural father. Mother and Father were never married. In 1996, in the course of child support proceedings brought by the Human Services Department, Father was adjudged to be Kirsten's natural parent.

{5} Appellant, Jerry Rackley, is Mother's half-brother. Appellant, Martha Chapman, is Mother's mother-in-law.

{6} Appellants petitioned the district court for an order appointing them as personal representatives of Kirsten's estate. Father objected to Appellants' petition and petitioned the district court for an order appointing him as the sole personal representative. Father asserted, inter alia, that

[Father], as the only surviving parent of Kirsten Janay Sumler, a minor child, is the sole statutory beneficiary under the New Mexico Wrongful Death Act, NMSA 1978 § 41-2-3, for any wrongful death action brought on her behalf, and therefore has initiated such an action in the United States District Court for the District of New Mexico. Martha Chapman and Jerry Rackley have no status as statutory beneficiaries... or entitlement to the proceeds from any such action. Nor would the recovery from such an action be part of the Estate of Kirsten Janay Sumler. Therefore, the Court should not appoint a personal representative of the Estate under NMSA 1978 § 45-3-203 who is not a proper personal representative and statutory beneficiary under NMSA 1978 § 41-2-3, as there are no known assets in Decedent's estate to be administered.

{7} The district court entered a Judgment and Order of Adjudication of Intestacy and Appointment of Personal Representative appointing Father as personal representative of Kirsten's estate. Appellants filed a timely notice of appeal.

DISCUSSION

1. The Nominal Controversy

{8} In probate law, "personal representative," refers generally to persons with the duty of settling and distributing a decedent's estate under the supervision of a court, and includes executors and administrators. XVIII Cyclopedia of Law and Procedure, Executors and Administrators § I, B, 1 (William Mack, ed.1905). The term "personal representative" is not defined by the Wrongful Death Act. Chavez v. Regents of the Univ. of N.M., 103 N.M. 606, 609, 711 P.2d 883, 886 (1985). Cases interpreting our wrongful death act have made it clear that it is improper to equate a personal representative under the Wrongful Death Act with a personal representative as defined by the Probate Code:

Since the character of plaintiff as a personal representative under our statute is entirely foreign to and unconnected with his character as estate administrator, whatever authority he might have as such administrator is unimportant; and, since his authority to bring and maintain the action flows from the wrongful death statute itself and not from the probate, or estate, laws of this or any other state, it is incorrect to say that his power to sue in this connection should be tested by his authority to administer generally the estate of the deceased....

....

....

And, in this connection, it is well to notice how courts hold, with almost complete unanimity, that the fact that some statutes name the administrator or executor of the estate of the deceased as the person to sue is not to say that the recovery had belongs to the estate, is to be in any way involved in the estate, as such, is answerable for its debts or must, in any sense, be accounted for to the estate by such a representative, absent a situation calling for escheat to the state, one not present here.

The suit, under this act, clearly, has no relation to the estate. It is incidental that a "personal representative" (usually defined to be an executor or administrator, in one of the classes) is named to bring suit. It is not because this would fall within his duties as such, but because someone must be named and our Legislature has fixed upon such a person as the one to sue.

Henkel v. Hood, 49 N.M. 45, 47, 156 P.2d 790, 791 (1945) (citation omitted). A Section 41-2-3 personal representative "need not ... have the full powers required by the Probate Code, since his duties under the Wrongful Death Act are merely to act as a nominal party for all the statutory beneficiaries in order to centralize the claims and prevent multiple and possibly contradictory lawsuits." Chavez, 103 N.M. at 609, 711 P.2d at 886. "While the administrator [of the decedent's estate] may be the [wrongful death action] personal representative, there may be a personal representative who is not the administrator." Stang v. Hertz Corp., 81 N.M. 69, 77, 463 P.2d 45, 53 (Ct.App.1969).

{9} The remarks of Appellants' counsel during oral argument in the district court demonstrate that Appellants sought appointment as the personal representative of Kirsten's estate not in order to administer what appears to be an asset-less estate, but because of counsel's belief that a Section 41-2-3 personal representative must be appointed in accordance with the probate code. We take this opportunity to re-emphasize that appointment as the personal representative of a decedent's estate is neither necessary nor sufficient authority for a person to serve as a Section 41-2-3 personal representative: the power to enter a judgment appointing a Section 41-2-3 personal representative "flows from the wrongful death statute itself and not from the probate, or estate, laws." Henkel, 49 N.M. at 47, 156 P.2d at 791.

{10} A person seeking appointment as a Section 41-2-3 personal representative is not required to proceed under the Probate Code and the substantive and procedural provisions of the Probate do not govern the appointment of a Section 41-2-3 personal representative.¹

{11} In view of our holding that appointment as the personal representative of Kirsten's estate is neither necessary nor sufficient authority for Appellants to serve as Section 41-2-3 personal representatives in prosecuting an action for her wrongful death, we conclude that this appeal is moot to the extent it seeks review of the district court's order appointing Father as personal representative of Kirsten's estate.

2. The Actual Controversy: Who Will Share in the Recovery?

a. Mother's Interest Became Absolutely Vested upon Kirsten's Death

{12} Because Appellants mistakenly believed that the personal representative of Kirsten's estate would be the proper party to bring an action for Kirsten's wrongful death, they attempted to demonstrate to the district court that Father was not a suitable person to bring an action for Kirsten's wrongful death. In the course of litigating Father's suitability to bring a wrongful death action, Appellants raised an issue that remains a matter of active controversy between Appellants and Father: who will share in any recovery for Kirsten's wrongful death?

{13} This issue was fully litigated by the parties and was addressed by the district court's findings of fact and conclusions of law. The district court declared that "[Father] is the sole surviving parent[ ] of Kirsten Janay Sumler, and as such, is the sole beneficiary of the wrongful death claim for the death of Kirsten Janay Sumler." We conclude that even though this case nominally was a formal probate proceeding, the district court had jurisdiction to address issues arising under the Wrongful Death Act, see NMSA 1978, § 44-6-2 (1975) (providing that any person whose rights, status or other legal relations are affected by a statute may obtain a declaration of rights, status or other legal relations thereunder), and that we have jurisdiction to review the district court's rulings with respect to these issues, see NMSA 1978, § 44-6-8 (1975).

{14} Section 41-2-3 provides:

Every such action as mentioned in Section 41-2-1 NMSA 1978 shall be brought by and in the name or names of the personal representative or representatives of such

...