In re Lister's Estate

Citation22 Ariz. 185,195 P. 1113
Decision Date05 March 1921
Docket NumberCivil 1863
PartiesIn the Matter of the Estate of OLLIE R. LISTER, Deceased. EMILY MAY JENNINGS, by Her Guardian Ad Litem, ALBERT M. SAMES, Appellant, v. MABRON LISTER, Administrator of the Estate of OLLIE R. LISTER, Deceased; T. O. LISTER, LULAR ROWE, S. H. LISTER, S.W. LISTER, J. R. LISTER, MAUDE JENNINGS and MABRON LISTER, Appellees
CourtSupreme Court of Arizona

APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge. Affirmed.

Mr Albert M. Sames and Mr. O. Gibson, for Appellant.

Messrs Manatt & Stephenson, for Appellees.



The case is submitted upon an agreed statement of facts summarized as follows:

In May 1919, Ollie R. Lister received injuries through the negligence of the Phelps-Dodge Corporation from which he died. Mabron Lister was appointed administrator of his estate, which consisted of a claim for damages against said corporation. The claim was settled, and the sum in the hands of the administrator, being ready for distribution, was claimed by Emily May Jennings under a will of deceased, the pertinent clause thereof being in words as follows:

"I give and bequeath to my niece, Emily May Jennings of Douglas Arizona; all my real estate, and personal estate of whatsoever kind I may die seized to have and hold the same absolutely as her own forever which personal estate includes all stocks or certificates of interests in any and all corporations, and all Thrift Stamps which I may have."

Upon the hearing of petitions for distribution, and under the will, the court denied the latter and ordered the estate to be divided, according to the law of descent and distribution, between the father, brothers, and sisters of deceased. Emily May Jennings, who is a minor, prosecutes this appeal through her guardian ad litem, Albert M. Sames.

The question is as to whether this fund was subject to testamentary disposition and, if so, did the deceased, by his will, bequeath or intend to bequeath it to Emily May Jennings. Under the common law there was no right of action for damages for wrongful death. The right is statutory and was originally provided for in England by what is known as Lord Campbell's Act. Most of the states of the Union, and among them Arizona, have enacted the Lord Campbell Act, or passed legislation in varying terms of the same import. The Arizona act (paragraphs 3372-3376, Civ. Code) does not provide for the survival of the right of action...

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18 cases
  • Summerfield v. Superior Court In and For Maricopa County
    • United States
    • Supreme Court of Arizona
    • April 24, 1985
    ...creature of statute, there being no recovery at common law. See, e.g., Huebner v. Deuchle, 109 Ariz. 549, 514 P.2d 470 (1973); Estate of Lister, 22 Ariz. 185, 195 In America, the Baker rule was ignored until 1848; during this forty-year period, there was "no instance of a denial of a civil ......
  • James v. Phoenix General Hosp., Inc., s. CV
    • United States
    • Supreme Court of Arizona
    • October 1, 1987
    ...P.2d 712, 721 (1985). The wrongful death cause of action can accrue only at the death of the party injured. See, e.g., In re Lister, 22 Ariz. 185, 195 P. 1113 (1921); Gomez v. Leverton, 19 Ariz.App. 604, 509 P.2d 735 (App.1973); Rogers v. Smith Kline & French Laboratories, 5 Ariz.App. 553, ......
  • Merritt-Chapman & Scott Corporation v. Frazier
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 18, 1961
    ...419, 242 P. 658); and that since an action for wrongful death is purely statutory (Sec. 12-611, Ariz.Rev.Stat.); In re Lister's Estate, 1921, 22 Ariz. 185, 195 P. 1113, the Constitution does not prohibit an "election" of remedies even though made without the requisite knowledge. This argume......
  • Walsh v. Chartered
    • United States
    • Court of Appeals of Arizona
    • May 26, 2011
    ...a matter of law. ¶ 10 A wrongful death claim, however, is essentially a creature of statute—not the common law. In re Lister's Estate, 22 Ariz. 185, 187, 195 P. 1113, 1113 (1921) (“Under the common law there was no right of action for damages for wrongful death. The right is statutory and w......
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