In re Lister's Estate

• Decision Date: 05 March 1921
• Docket Number: Civil 1863
• Citation: In re Lister's Estate, 195 P. 1113, 22 Ariz. 185 (Ariz. 1921)
• Parties: In 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
• Court: Arizona Supreme Court

195 P. 1113

22 Ariz. 185

In 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

Civil No. 1863

Supreme Court of Arizona

March 5, 1921

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.

OPINION

ROSS, C. J.

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 for injuries suffered by deceased, but creates a new action...