Lusk's Adm'rs v. Kimball

• Decision Date: 11 May 1898
• Citation: 87 F. 545
• Parties: LUSK'S ADM'RS v. KIMBALL et al.
• Court: U.S. Court of Appeals — Fourth Circuit

87 F. 545

LUSK'S ADM'RS v. KIMBALL et al.

United States Circuit Court, W.D. Virginia.

May 11, 1898

Isaac Harr and Burrow Bros., for plaintiffs.

Fulkerson Page & Hunt, for defendants.

PAUL District Judge.

This is an action at law brought by W. H. Hodges and E. B. McKeehan styling themselves administrators of Samuel L. Lusk deceased. The record shows that Samuel L. Lusk was an employe on the Norfolk & Western Railroad, and was on the 30th day of March, 1895, while in the service of the said railroad company, on the Kenova Division thereof, killed, by being crushed between two cars; that this action was instituted in this court at Abingdon, in the month of August, 1895, by the plaintiffs, who, prior to the institution of the suit, had obtained, in the state of Tennessee, letters of administration in the state of Virginia. After the institution of this action, one J. W. Mort, a citizen of Virginia, qualified in the corporation court of the city of Bristol, Va., as administrator of the estate of said Lusk. In the month of June, 1897, said Mort tendered his resignation as administrator of said estate, and his resignation was accepted by the corporation court of the city of Bristol, and the plaintiffs, E. B. McKeehan and W. H. Hodges, were then and there appointed by the said corporation court of the city of Bristol and qualified as administrators of said estate in the room and stead of said Mort. The defendants at the October term, 1897, of this court filed a plea in bar to the action, alleging that at the time the same was instituted the plaintiffs had obtained letters of administration upon the estate of Samuel L. Lusk, deceased, in the state of Tennessee; that they were not administrators of said estate in the state of Virginia, but that one J. W. Mort had qualified in the corporation court of the city of Bristol, Va., and was then administrator of said estate. To this plea the plaintiff's filed a replication, as follows:

'(1) It is true that before the institution of this action plaintiffs had obtained letters of administration upon the estate of Samuel L. Lusk, deceased, in the state of Tennessee. (2) It is true that at the time this action was instituted plaintiffs had not been appointed administrators of said estate in the state of Virginia. (3) It is not true that at and before the institution of this action one J. W. Mort had been appointed and qualified as administrator of said estate in the corporation court of Bristol, Virginia. (4) It is true that after the institution of this action said J. W. Mort was appointed and qualified as administrator of said estate in said corporation court of Bristol, Virginia, but on the . . . day of June, 1897, said Mort, having fully administered and made settlement of all the assets of said estate coming into his hands, tendered his resignation as administrator of the said estate, and said resignation was accepted by said corporation court of Bristol, and plaintiff's E. B. McKeehan and W. H. Hodges, were then and there appointed and qualified as administrators of said estate in the room and stead of said Mort, and they are now the only administrators of the estate of Samuel L. Lusk, deceased.'

The question presented by the pleadings for decision is, can this action, on this state of facts, be maintained? The plaintiffs insist that, although they had not taken out letters of administration at the time of the institution of the action, yet, having subsequently done so, they have a right to amend the declaration so as to make them parties plaintiff, and claim that the amendment so made will have relation to the time of instituting the action, and invests them with the right to maintain the action.

This is an action under section 2902 of the Code of Virginia of 1887, which provides for the recovery of damages where the death of any person is caused by the wrongful act of any person or corporation. Section 2903 of the Code of Virginia of 1887 provides: 'Every such action shall be brought by and in the name of the personal representative of such deceased person, and within twelve months after his death. * * * '

Section 2640 provides for the qualification of an administrator, as follows:

'Before any grant of administration, as of the estate of an intestate, the person to whom it is granted shall, in the court granting it, give bond and take an oath that the deceased has left no will, so far as he knows, and that he will faithfully perform the duties of his office to the best of his judgment. * * *'

Thus it will be seen that, before an administrator is authorized to do any act under the laws of Virginia, he must comply with the requirements of the statute in the important particulars of taking an oath in open court and executing a bond with security. Until he complies with these requirements of the statute, he stands in the same relation to the estate of the decedent as any other individual, even though he has taken out letters of administration in another state. These can confer no authority upon him to exercise so important a power as instituting an action at law. This question has been so frequently decided by the courts, state and federal, that...