Langford v. Merickel

• Decision Date: 01 December 1961
• Docket Number: No. 4-61-Civ-53.,4-61-Civ-53.
• Citation: 199 F. Supp. 424
• Parties: Jo-Anne LANGFORD, Andrea Langford, and Stephen Langford, minors, by Caroline Lenore Langford, their mother and natural guardian and Caroline Lenore Langford, individually and as Executrix of the Estate of Cyril Charles Langford, Decedent, Plaintiffs, v. Carol S. MERICKEL as Administratrix of the Estate of Maurice L. Merickel, Jr., also known as Pat Merickel, Decedent, Defendant.
• Court: U.S. District Court — District of Minnesota

199 F. Supp. 424

Jo-Anne LANGFORD, Andrea Langford, and Stephen Langford, minors, by Caroline Lenore Langford, their mother and natural guardian and Caroline Lenore Langford, individually and as Executrix of the Estate of Cyril Charles Langford, Decedent, Plaintiffs, v. Carol S. MERICKEL as Administratrix of the Estate of Maurice L. Merickel, Jr., also known as Pat Merickel, Decedent, Defendant.

No. 4-61-Civ-53.

United States District Court D. Minnesota. Fourth Division.

December 1, 1961.

O. C. Adamson, Minneapolis, Minn., for plaintiffs.

Kenneth W. Green and Frederick W. Thomas, Minneapolis, Minn., for defendant.

DEVITT, Chief Judge.

This action arises out of the crash of a light airplane in Ontario, Canada on March 6, 1960, in which both occupants were killed.

Plaintiffs are residents of Ontario and defendant is a resident of Minnesota. The requisite jurisdictional amount and diversity are pleaded.

The matter is before the court on defendant's motion in the alternative for dismissal or for summary judgment upon the ground that plaintiffs do not have the capacity to sue.

Defendant contends that the plaintiffs lack capacity to sue because plaintiff, Caroline Lenore Langford, failed to file an authenticated copy of her appointment as executrix of the estate of Cyril Charles Langford in the Probate Court of the appropriate county in Minnesota. In connection with this contention, it is pointed out that Section 573.05 of the Minnesota Statutes reads as follows:

"Any foreign executor or administrator may commence and prosecute an action in this state, in his representative capacity, in the same manner and under the same restrictions as in case of a resident. Before commencing such action he shall file an authenticated copy of his appointment as executor or administrator with the probate court of the county in which such action is to be commenced."

Plaintiffs have stated two claims in the one complaint. The first claim is made pursuant to The Trustee Act, Revised Statutes of Ontario, Chapter 261. It is in the nature of an action for personal injuries and property damages to the decedent. The second claim is for wrongful death and is made pursuant to The Fatal Accidents Act, Revised Statutes of Ontario, Chapter 138. Each will be considered separately.

Under The Trustee Act, an executor is authorized to bring the action, and the damages, when recovered, are to form part of the personal estate of the deceased. R.S.O. c. 261, § 1.

Defendant argues that before this action could be brought, it was necessary for the executrix, Caroline Lenore Langford, to comply with M.S.A. § 573.05, supra, and file an authenticated copy of the letters of appointment.

It is not denied that an authenticated copy of plaintiff's appointment as executrix was not filed in a Minnesota Probate Court, but plaintiff urges that this statute is inapplicable to the action brought under The Trustee Act.

There are a number of Minnesota cases which have considered the application of M.S.A. § 573.05. One of the earlier ones is Fogle, Administrator, v. Schaeffer, 23 Minn. 304 (1877). There an Ohio administratrix was suing in Minnesota on a judgment obtained in Ohio. The Court, referring to a statute similar to § 573.05, said at p. 306:

"As upon this principle, the authority of a foreign administrator, as such, to commence an action in this state is wholly dependent upon the statute, it follows that he must commence his action upon the terms which the statute prescribes, and not otherwise. If he commences an action upon any other terms, he commences it without authority, and if proper objection is taken, his action must fail. He must, therefore, file the prescribed authenticated copy before the commencement of his action, and his failure to do so, if properly objected to, is fatal, and cannot be cured by a filing after the commencement of his action."

In the case of Babcock, et al. v. Collins, 60 Minn. 73, 61 N.W. 1020 (1895) the Court was again referring to the same statute and said at p. 1021:

"Our statute expressly recognizes the right of a foreign executor thus to intermeddle in the estate found in this state. Section 6, c. 77, Gen. St. 1878, * * * provides that he may prosecute an action in this state in his capacity as foreign executor if, before commencing the same, he files in the probate court of the county in which the action is commenced an authenticated copy of his appointment as such executor * * *."

In Bowen v. Willard, 203 Minn. 289, 281 N.W. 256, 258 (1938), in reference to the statute, the Court said:

"The statute, recognizing the want of power and capacity of foreign executors and administrators to act within our jurisdiction, as an act of comity confers upon them the right to sue in our courts." (cases cited).

The cases cited above involved actions brought by foreign representatives wherein probate assets were involved. There are no cases involving actions similar to that brought here, but the case of State ex rel. Bossung v. District Court, 140 Minn. 494, 168 N.W. 589, 590, 1 A.L.R. 145 (1918) does indicate that the statute applies to wrongful death actions. There the Court said:

"So we have held that a cause of action given by the statute of another state for death by wrongful act, though differing

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