In Re Mayo's Estate.

Decision Date18 April 1901
Citation60 S.C. 401,38 S.E. 634
PartiesIn re MAYO'S ESTATE. Ex parte NORTHEASTERN R. CO.
CourtSouth Carolina Supreme Court

ADMINISTRATORS—RAILWAY COMPANY LIABLE FOR DEATH OF INTESTATE—NO INTEREST IN HIS ESTATE—STATUTES—CAUSE OF ACTION AN ASSET.

1. Under Code Proc. § 49, providing that the jurisdiction assumed by any probate court, so far as it depends on the place of residence, shall not be contested in any suit or proceeding, except in an appeal from the probate court in the original case, or when the want of jurisdiction appears on the record, a railroad company responsible for the death of an intestate cannot attack the appointment of an administrator for a decedent's estate, no want of jurisdiction appearing on the record.

2. Rev. St. § 2315, provides that whenever the death of a person shall be caused by the wrongful act or neglect of another, and the act or neglect is' such as would have entitled the injured party to recover damages if death had not ensued in such case, the person or corporation causing the injury shall be liable to an action for damages. Section 2316 prescribes that such action shall be brought by the administrator or executor for the benefit of the husband or Wife and children of the deceased; and section 2318 bars such action where the injured person had brought an action for such injuries which had proceeded to trial and final judgment. Held, that the cause of action given the administrator or executor for the negligent killing of a person was a new statutory action, and not a mere survival of the action which the deceased might have brought for the injuries, and hence is an asset only enforceable by the administrator or executor, and the proceeds distributable by the administrator under statutory direction sufficient to support the grant of administration.

3. Where a resident of Florida was negligently killed by a railroad company in South Carolina, a contention that administration to enforce the statutory right of action against the railroad company for such killing should be granted in Florida was without force, since the court did not know whether or not such an action was enforceable in Florida.

Mclver, C. J., dissenting.

Appeal from common pleas circuit court of Florence county; George W. Gage, Judge.

Petition by the Northeastern Railway Company for the revocation of letters of administration granted to J. W. McCown on the estate of James M. Mayo, deceased. From a judgment refusing to revoke such letters, petitioner appals. Affirmed.

The following is the petition of appellant, referred to in the dissenting opinion:

"The Northeastern Railroad Company, petitioner herein, respectfully. shows to this court: (1) That your petitioner is a railroad corporation duly organized under the laws of the state of South Carolina, carrying on the business of a common carrier on its line of road in this state. (2) That heretofore, on the 24th day of November, 1897, J. W. McCown filed his petition in this court in the above-entitled proceeding, praying that letters of administration be granted him by this court upon the estate of James M. Mayo, deceased, a copy of which petition is hereto annexed as a part hereof. (3) That on the 16th day of December, 1897, by final order or judgment of this court, letters of administration were granted in the above-entitled proceeding to the said J. W. McCown, as administrator upon the estate of the said James M. Mayo, styled and recited in said judgment as 'late of Florence county, ' and the said J. W. McCown on the said 16th day of December, 1897, took the usual oath prescribed for administrators, as will appear by a copy of the said judgment and oath hereto annexed as a part hereof. Said judgment so rendered and said letters so issued were granted upon the said ex parte application of the said J. W. McCown. (4) That the said James M. Mayo, at the time of his death, on the 12th day of June, 1897, was not a resident or inhabitant of this state, nor a citizen thereof, but at the time of his death, and long prior thereto, was a resident, an inhabitant, and a citizen of the state of Florida, with his residence in the city of Ocala, county of Marion, in said state of Florida. (5) That the said James M. Mayo died intestate, leaving no es tate or property of any description, real or personal, within the limits of the state of South Carolina, or within the jurisdiction of this court, either at the time of his death, or at the time of the grant of said letters of administration, or since. (6) That it is alleged in the said petition of the said J. W. McCown that the said James M. Mayo died intestate, leaving his widow and children named in said petition residents of the state of Florida, and that he left no property within the jurisdiction of this court. (7) That the said J. W. McCown, so styling himself as administrator of the estate of said James M. Mayo, on or about the 27th day of December, 1897. commenced an action as such against your petitioner for the sum of twenty-five thousand dollars damages in the court of common pleas for the county of Florence for the alleged negligent killing of said James M. Mayo by your petitioner in the city of Florence on the 12th day of June, 1897, in which action it is alleged by the said J. W. McCown that the said James M. Mayo 'was a stranger in the city of Florence.' Your petitioner has appeared and answered the complaint in said action, and your petitioner alleges that the death of the said James M. Mayo was not caused by the negligence of your petitioner, as alleged in the complaint of said action. By an order in said cause, made on the 8th of February, 1899, the place of trial of said action was changed from the county of Florence to the county of Williamsburg in this state, and said cause is now pending in said court. (8) Your petitioner was not a party to the proceedings herein culminating in the grant of said administration to the said J. W. McCown, and had no notice thereof, but said order was made and said letters were granted solely upon the ex parte application of the said J. W. McCown, unsupported by any evidence showing or tending to show that the said James M. Mayo was either aresident or an inhabitant of the county of

Florence, or had any property or estate therein to be administered upon or within the jurisdiction of this court. (9) Your petitioner is interested in said final order made herein appointing the said J. W. McCown administrator of the estate of the said James M. Mayo, and is and will be injured thereby. The said final order and said letters of administration so made and granted are illegal, null and void, and this court was without jurisdiction to issue the same. Under the authority of the said illegal appointment the said J. W. McCown has already put your petitioner to great inconvenience, costs, and expense by the institution of the said vexatious suit for damages. Said J. W. McCown has and can have no power or authority to commence or prosecute the said action for damages, ' which said action can only be brought by the party and in the manner prescribed in section 2316 of the Revised Statutes (1S93) of South Carolina. Even if said unliquidated claim for damages was a valid claim, —which it is not, —such claim is not an asset of the estate of the said James M. Mayo. Wherefore your petitioner prays that the said final order appointing the said J. W. McCown administrator be vacated and set aside, and the said letters of administration issued to him be revoked and canceled."

W. Huger Fitz Simons and Willcox & Will-cox, for appellant.

S. W. G. Shipp, C. A. Woods, Geo. Galletly, and R. A. Burford, for respondent.

JONES, J. This is an appeal from the judgment of the circuit court affirming the judgment of the probate court of Florence county, which refused to revoke letters of administration granted to J. W. McCown as administrator of James M. Mayo, deceased. James M. Mayo died intestate in Florence county, S. C, on the 12th day of June, 1897. Letters of administration on the estate of Mayo were granted to McCown by the probate court of Florence county on the 16th day of December, 1897. The administrator commenced an action against the Northeastern Railroad Company on the 27th day of December, 1897, under the statute commonly referred to as "Lord Campbell's Act" for damages for the alleged wrongful killing of said intestate by the said company in Florence county. The said railroad company answered, denying the alleged negligence, and subsequently the cause, on motion, was transferred to Williamsburg county for trial. Then, on the 29th day of January, 1900, the railroad company made this application for revocation of the grant of administration on the ground that the probate court was without jurisdiction in that said Mayo was a resident of Florida at the time of his death, and owned no estate in South Carolina for administration. The probate court, refusing the revoke, held: (1) That the order granting administration was valid on its face, since It recited the jurisdiction of facts contested, and that the railroad company had no such interests as would support its attack upon the judgment of the probate court; and (2) that upon the facts stated in the petition of the railroad company, viz. that Mayo was not a resident of this state, but was killed by a railroad train at Florence, S. C, while passing through this state, and that he left no assets in this state to be administrated other than the right of suit given to the administrator by sections 2315 and 2316 of the Revised Statutes, the probate court of Florence county had jurisdiction to issue letters of administration, as such right of action was a sufficient property to authorize the appointment of an administrator. The circuit court on appeal held that the railroad company had the right to move for revocation of the ad ministration, but affirmed the judgment of the probate court on the second ground. We are now to consider these questions.

1. We...

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