In Re Mayo's Estate.
Decision Date | 18 April 1901 |
Citation | 60 S.C. 401,38 S.E. 634 |
Parties | In re MAYO'S ESTATE. Ex parte NORTHEASTERN R. CO. |
Court | South 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.
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:
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.
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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