Weinstein v. Medical Center Hosp. of Vermont, Inc.

• Decision Date: 08 November 1972
• Docket Number: Civ. A. No. 6390.
• Citation: 358 F. Supp. 297
• Parties: Honey WEINSTEIN, Administratrix of the Estate of Andrew Weinstein. v. MEDICAL CENTER HOSPITAL OF VERMONT, INC., et al.
• Court: U.S. District Court — District of Vermont

358 F. Supp. 297

Honey WEINSTEIN, Administratrix of the Estate of Andrew Weinstein. v. MEDICAL CENTER HOSPITAL OF VERMONT, INC., et al.

Civ. A. No. 6390.

United States District Court, D. Vermont.

November 8, 1972.

Lisman & Lisman, Burlington, Vt., for plaintiff.

Wick, Dinse & Allen, Burlington, Vt., for defendant Medical Center Hospital of Vermont, Inc.

Pierson, Affolter & Amidon, Burlington, Vt., for defendant Dr. Charles Ravariz.

Theriault & Joslin, Montpelier, Vt., for defendant Dr. Massoud Azar.

OPINION

HOLDEN, Chief Judge.

The plaintiff administratrix is a citizen and resident of the State of New York. She is the mother of Andrew Weinstein. She brings this action for the wrongful death of her son Andrew, alleging that his suicide on January 13, 1971, at Ripton, Vermont, while on pass from confinement in the Medical Center, as a patient of Dr. Ravaris and Dr. Azar, was caused by their negligence and that of the hospital in the care and treatment of the decedent.

The plaintiff was issued letters of administration in the estate of Andrew Weinstein by the Surrogate Court of the County and State of New York on February 10, 1971. No letters of administration have been issued by the Probate Court for the District of Addison, where the decedent's death occurred and, according to the plaintiff, where he was temporarily living at the time of his death.

These facts are gathered from the pleadings, the plaintiff's admission of facts, her answers to the interrogatories submitted by the defendant and the affidavit of the register of the Probate Court for the Addison District. The defendants have moved to dismiss the complaint on the ground that the plaintiff lacks the requisite judicial capacity to prosecute the action. Since the plaintiff instituted the suit as administratrix, her capacity to maintain the action is determined according to the law of Vermont. Fed.R.Civ.P. 17(b).

Under the law of this state, letters of administration issued to a representative by the courts of a foreign state have no extra territorial force beyond the state of his appointment. Such a representative is without authority to discharge a debt or release a claim which has its situs in Vermont. And a foreign administrator is without standing to prosecute the claim of his decedent unless authorized by ancillary letter issued here. Joy, Executor v. Swanton Savings Bank & Trust Co., 111 Vt. 106, 110, 10 A.2d 216; Church's Executor v. Church's Estate, 78 Vt. 360, 363, 63 A. 228; Vaughn v. Barret, 5 Vt. 333, 336-337. The rule has been recognized and applied by the federal courts in this district. Allen et al. v. Fairbanks, 36 F. 402 (2nd Cir. 1888). See also, Wilkins v. Ellett, Administrator, 108 U.S. 256, 2 S.Ct. 641, 27 L.Ed. 718 (1883); Restatement, Conflict of Laws § 507; annotation 52 A.L.R.2d 1016.

It has been suggested, by way of dicta, that a foreign administrator may maintain an action in Vermont under a wrongful death statute for a right and remedy created by the law of New Hampshire for a death that occurred in that jurisdiction. Brown, Admr. v. Perry, 104 Vt. 66, 71, 156 A. 910 (1931). In that instance, however, ancillary letters of administration had been issued by the probate court in Vermont.

By the 1961 amendment to the Vermont statute, the net proceeds of a recovery for a death by wrongful act, whether by settlement or action, must be decreed by the probate court having jurisdiction of the decedent's estate. It is mandatory that the probate court decree the distribution of the amount recovered pursuant to the final judgment order of the county court or superior judge in the special proceedings provided in the statute. 14 V.S.A. § 1492(c) (1961, No. 250).¹ See, In re Estate of Brown, 129 Vt. 230, 275 A.2d 1 (1971).

Whether the plaintiff is regarded as the representative of the decedent, or trustee for the beneficiaries, as in Brown, Admr. v. Perry, supra, 104 Vt. at 71, 156 A. 910, it is implicit in the 1961 enactment that the plaintiff is without standing to procure a judgment or settle a claim under the statute without the aid of ancillary administration in Vermont. Since the plaintiff must respond to the orders of the state court having...