ORDER DENYING THE DEBTOR'S MOTION TO ALTER OR AMEND ORDER OF MARCH 11, 1982, DETERMINING A CERTAIN CAUSE OF ACTION TO BE PROPERTY OF THE ESTATE IN BANKRUPTCY
DENNIS J. STEWART, Bankruptcy Judge.
The issue which is before the court for resolution in the controversy now at bar is whether the right to commence a wrongful death action pursuant to §§ 537.080 et seq. of the Missouri Revised Statutes accruing to the debtor within 180 days subsequent to commencement of the title 11 proceedings becomes property of the bankruptcy estate. It appears that the only possible statutory basis for inclusion is § 541(a)(5) of the Bankruptcy Code which provides that a bankruptcy estate should include:
"An interest in property that would have been property of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date ... by bequest, devise, or inheritance ..."
Therefore, this court, in its order of March 1, 1982, determining the chose in action to be part of the bankruptcy estate, concerned itself with deciding whether the general statutory scheme of the Missouri statutes on wrongful death actions purported to be statutes on the general subject of inheritance. The predecessor to the current Missouri statute assimilated determination of standing to sue in terms like those of general statutes of descent and distribution and in fact explicitly incorporated by reference the statutes of descent and distribution. See § 537.070 RSMo to the following effect:
"Whenever any person, including any employee of the corporation, individual or individuals herein referred to whose death is caused by the negligence of a coemployee thereof, shall die from any injury resulting or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive, car or train of cars, or any street electric or terminal car or train of cars, or of any master, pilot, engineer, agent or employee whilst running, conducting or managing any steamboat, or any of the machinery thereof, or of any driver of any stagecoach, automobile, motorcar or other public conveyance whilst in charge of the same as a driver; and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad, whether the same be a steam, street, electric or terminal railroad or any part thereof, or in any locomotive, car, streetcar, electric car or terminal car, or in any steamboat, or the machinery thereof, or in any stagecoach, automobile, motorcar, or other public conveyance, the corporation, individual or individuals in whose employ any such officer, agent, servant, employee, master, pilot, engineer or driver shall be at the time such injury is committed, or who owns, operates or conducts any such railroad, locomotive, car, streetcar, electric car, terminal car, automobile, motorcar, stagecoach, or other public conveyance at the time any injury is received resulting from or occasioned by any defect or insufficiency, unskillfulness, negligence or criminal intent above declared, or any such officer, agent, servant, employee, master, pilot, engineer or driver, whose negligence, unskillfulness, or criminal intent shall cause such injury, shall forfeit and pay as a penalty for every such person, employee or passenger so dying, the sum of not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury, which may be sued for and recovered:
(1) By the husband or wife of the deceased; or
(2) If there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased by the natural born or adopted child or children of the deceased; provided, that if adopted, such minor child or children shall have been duly adopted according to the laws of adoption of the state where the person executing the deed of adoption resided at the time of such adoption; or
(3) If such deceased be a minor and unmarried, whether such deceased unmarried minor be a natural born or adopted child, if such deceased unmarried minor shall have been duly adopted according to the laws of adoption of the state where the person executing the deed of adoption resided at the time of such adoption, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor; or
(4) If there be no husband, wife, minor child or minor children, natural born or adopted as herein indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent, and such corporation, individual or individuals or such officer, servant, agent, employee, master, pilot, engineer, or driver, may show as a defense that such death was caused by the negligence of the deceased.
"In suits instituted under this section, it shall be competent for the defendant, for his defense, to show that the defect or insufficiency named in this section was not of a negligent defect or insufficiency, and that the injury received was not the result of unskillfulness, negligence or criminal intent. Every person who shall have cause of action for any death through the negligence, unskillfulness, or criminal intent of any servant, under the provisions of this section, may at his option, bring suit thereon jointly against the master and servant, or severally, against either master or servant."
Therefore, this court, making the following observations, concluded that the Missouri statute on wrongful death actions was one of inheritance in its broadest sense:
"... it appears that, if the law of Missouri makes the right to prosecute a wrongful death action a right which is gained by `inheritance,\' within the meaning of the foregoing statute, within 180 days of the commencement of the title 11 action, the wrongful death action may be included in the bankruptcy estate. Section 537.070 RSMo specifies the persons who are entitled to sue to recover wrongful death damages according to priorities which appear to coincide with the laws of descent and, if persons within the propinquity in relationship to the deceased, as specified in the statute, are not in existence then it is stated that `the amount recovered shall be distributed according to the laws of descent.\' Further, to inherit, by definition, may include the process of taking or receiving `as right or title, by law from ancester at his decease\' as well as `to take by descent from ancestor.\' Black\'s Law Dictionary p. 922 (1968). It would therefore appear that the petitioner has a possibly recognizable claim that the cause now pending in the Circuit Court of Vernon County should be regarded as property of the bankruptcy estate and any recovery or settlement fund derived therefrom should therefore become part of the estate in bankruptcy."
Thereafter, the debtor moved to alter or amend the above quoted order on the grounds that the predecessor statute should not have been considered by the court in determining the issue of the general subject matter of the Missouri statutory scheme. The motion to alter or amend was couched in the following language:
"That the Court in its judgment order relied on the rationale of 537.070 RSMo although the said statute has been repealed and replaced with RSMo 537.080 which sets out the requirements for the parties to bring a cause of action for wrongful death.
"That the Court should amend its judgment after considering the provisions of RSMo 537.080 and make its findings based on whether or not RSMo 537.080 wrongful death cause of actions are property of the estate within the purview of 11 U.S.C. 541."
The propriety of considering a predecessor statute in deciding what subject matter it covers, however, is well recognized. Therefore, on March 22, 1982, this court issued its order directing the debtor to show cause why her motion to alter or amend the order of March 1, 1982, should not be denied, therein stating the following pertinent considerations:
"There is no question that § 537.070 was repealed in 1955 and was succeeded by the current statute governing the question of the proper plaintiffs in a wrongful death action, § 537.080 RSMo. The question, however, which is (and was) before the court for decision is whether the right to sue in a wrongful death action is one which is gained by `inheritance\' within the meaning of § 541(a)(5), supra. As noted in the judgment which is now challenged, an `inheritance\' is property which is taken by operation of law from the entire range of rights which would have belonged to a deceased person. Thus, in order to determine whether the right to prosecute the wrongful death action is one gained by the debtor as an inheritance, it was necessary for the court to consider the subject matter of the relevant Missouri statute, i.e., whether it is one under which one takes property (including a right to sue) which would have been that of a decedent, if he had not died.
"On the issue of the subject matter of a statute, the courts have long considered it proper to consider the scope of the original statute on the subject,
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