Mo. Pac. R. Co. v. Bradley

• Decision Date: 18 May 1897
• Citation: 71 N.W. 283,51 Neb. 596
• Parties: MISSOURI PAC. R. CO. v. BRADLEY.
• Court: Nebraska Supreme Court

51 Neb. 596

71 N.W. 283

MISSOURI PAC. R. CO.

v.BRADLEY.

Supreme Court of Nebraska.

May 18, 1897.

Syllabus by the Court.

1. Where a resident of another state dies intestate, an administrator may be appointed by the county court of any county in this state in which there shall be an estate to be administered, irrespective of the value of such estate.

2. The county court of a county wherein a nonresident of the state is killed may appoint an adminstrator to prosecute a statutory action for the injury causing the death of the decedent, though the latter left no property in this state.

3. The fact that one has been sued by an administrator will not authorize such person to petition to the county court for a revocation of the letters of administration.

4. The acts of an administrator de facto are binding between the estate and innocent third persons, although his appointment be erroneous and voidable.

Error to district court, Otoe county; Chapman, Judge.

Petition by the Missouri Pacific Railroad Company to the probate court to revoke the appointment of Thomas K. Bradley, as administrator of the estate of Charles L. Meyers. Petition denied. From an order of the county court affirming such judgment, petitioner brings error. Affirmed.

Post, C. J., and Irvine, Ryan, and Ragan, CC., dissent.E. F. Warren, B. P. Waggener, James W. Orr, and C. W. Seymour, for plaintiff in error.

John C. Watson, N. F. Heitman, and Wash Adams, for defendant in error.

NORVAL, J.

On the 9th day of January, 1894, a petition was presented to the county court of Otoe county for the appointment of an administrator of the estate of Charles L. Meyers, deceased, alleging, inter alia, that Meyers, a resident of Johnson county, Mo., died intestate in Otoe county, this state, on the 22d day of April, 1892, leaving an estate to be administered, consisting of personal property situated and having its situs in said county of Otoe. The prayer of the petition was granted, and Thomas K. Bradley was appointed administrator, who duly qualified as such. Afterwards, on January 30, 1894, the Missouri Pacific Railway Company filed a petition in said county court, setting forth that Bradley, as administrator of the estate of said Meyers, deceased, had instituted an action against it in the district court of Otoe county, to recover damages resulting from the death of Meyers, alleged to have been caused by the negligence of the railroad company; that the appointment of Bradley was fraudulent and collusive, and made for the sole purpose of prosecuting said action; that at the date of the death of Meyers he was a resident of the state of Missouri, and left no estate to be administered in the state of Nebraska,--and praying that the letters of administration granted to Bradley might be revoked and set aside. A citation was thereupon issued by the county court to Bradley, fixing a date for him to show cause why his appointment as administrator of said estate should not be revoked and annulled, which was duly served. An answer was filed by the administrator denying the allegations contained in the petition of the railroad company, and alleging that it has no interest in the estate of said Meyers as creditor, heir, or distributee of said estate, and that said corporation has no right or authority to file said petition, or to be heard to raise objections to the appointment of said administrator. Upon the hearing on April 2, 1894, the county court refused to revoke and cancel the letters of administration, finding specially that Meyers died intestate in Otoe county; that he resided in Jackson county, Mo., at the time of his death; that he left as his estate “four dollars in money and a pocketbook found upon his person at the time of his death, which said four dollars and purse were sent to the widow of deceased at Kansas City, Mo., at once; that said money in cash and the said purse were returned to said county of Otoe after the commencement of this proceeding, and came into the hands of the administrator on the 2d day of April, 1894, a claim for $25 for money he had on his person at the time he left home, and a claim to right of action for damages against the Missouri Pacific Railway Company for injuries occasioning the death of the said Charles L. Meyers.” The railroad company excepted, and prosecuted error to the district court, where the decision of the county court was affirmed. The record has been brought to this court for review.

It is argued that the grant of letters of administration to Thomas K. Bradley upon the estate of Charles L. Meyers, deceased, by the county court of Otoe county, was coram non judice, because said Meyers, at the time of his death, was a resident of Missouri, and left no estate to be administered in Nebraska. Section 177, c. 23, Comp. St. 1895, declares that: “When any person shall die intestate, being an inhabitant of this state, letters of administration of his estate shall be granted by the probate court of the county of which he was an inhabitant or resident at the time of his death. If such deceased person, at the time of death, resided in any other territory, state or county leaving estate to be administered in this state, administration thereof shall be granted by the probate court of any county in which there shall be estate to be administered; and the administration first legally granted shall extend to all the estate of the deceased in this state, and shall exclude the jurisdiction of the probate court of every other county.” There is no claim that Meyers was a resident or inhabitant of this state at the time of his death, so the letters of administration issued to Bradley are invalid unless the decedent left an estate to be administered in Otoe county. That Meyers died in that county, and was then a resident of the state of Missouri, is undisputed; but it is asserted that he left no estate in Otoe county sufficient to confer jurisdiction upon the county court of that county to grant administration. The county court found that Meyers left in said county, as his estate, a pocketbook, $4, a claim for $25 for money, and the right of action against the railroad company for injuries causing his death. These constituted an estate to be administered. It is true, exclusive of the claim against the company, they were not of great value, but that is wholly an immaterial consideration, so far as the question of jurisdiction is concerned. The statute has not fixed any limitation upon the value of the estate to be administered, and the courts have no right to do so. The jurisdiction of the county court to grant administration is not determined by the value of the estate. Schouler, Ex'rs, §§ 24, 93; 19 Am. & Eng. Enc. Law, 166; Welch v. Railroad Co., 53 N. Y. 610;Wheeler v. Railroad Co., 31 Kan. 640, 3 Pac. 297;Railway Co. v. Dunden, 37 Kan. 1, 14 Pac. 501;City of Horton v. Trompeter, 53 Kan. 150, 35 Pac. 1106. In the last case the deceased owned property of the value of $2.25 at the time of his death, and it was held the estate was sufficient to authorize the granting of letters of administration. Authority is conferred to administer upon the estates of the poor and rich alike. The statute has made no distinction in that regard.

The argument that jurisdiction was lost by the sending of the pocketbook and the four dollars to the widow in Kansas City, Mo., prior to the filing of the petition for administration in the county court of Otoe county, is without merit. Meyers' property vested in the administrator when appointed by relation from the death of decedent. Bullock v. Rogers, 16 Vt. 294;Valentine v. Jackson, 9 Wend. 302;McMillan v. Wacker, 57 Mo. App. 220;Adey v. Adey, 58 Mo. App. 408; 1 Woerner, Adm'n, § 173. The estate was left in Otoe county to be administered, and the sending of a part or all of the personal property out of the county could not devest the court of jurisdiction to issue letters of administration. The widow had no right to the pocketbook and money, as they did not belong to her. The fact that they were forwarded to her presumably for safe-keeping is entirely immaterial, and did not affect the jurisdiction of the county court. The authority of the county court did not rest alone upon the few articles of personal property already mentioned which the deceased had upon his person when he died, since the cause of action against the railroad corporation was sufficient estate to justify the appointment of an administrator, had there been no other estate to be administered. The decisions in the other states upon the question are conflicting, but the decided weight of authority sustains the doctrine that the cause of action under Lord Campbell's act is an estate sufficient to grant administration thereon. This court so held in Railway Co. v. Lewis, 24 Neb. 848, 40 N. W. 401. In that case Joseph B. Lewis died in the state of Kansas, from injuries inflicted there by the railroad company. The sole assets of the estate consisted of the claim against the company. Letters of administration were granted by the county court of Washington county, Neb., to the widow, who instituted suit against the company for the death of her husband. The jurisdiction of the county court was sustained, and we think properly so, in the light of chapter 21, Comp. St., which reads as follows:

“Section 1. That whenever the death of a person shall be caused by the wrongful act, neglect, or default, and the act, neglect, or default is such as would if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then in every such case, the person who, or company or corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.

Sec. 2. That every such action shall be brought by and in the names of...