Worthen v. New York Cent. & H. R. R

• Decision Date: 06 April 1915
• Citation: 93 A. 1036,77 N.H. 520
• Parties: WORTHEN v. NEW YORK CENT. & H. R. R.
• Court: New Hampshire Supreme Court

93 A. 1036

77 N.H. 520

WORTHEN

v. NEW YORK CENT. & H. R. R.

Supreme Court of New Hampshire. Merrimack.

April 6, 1915.

Transferred from Superior Court, Merrimack County.

Probate appeal by the New York Central & Hudson River Railroad, sued by Joseph W. Worthen, administrator, from the decree appointing the administrator. Transferred, without a ruling from the superior court. Appeal dismissed.

Warren A. Hix was a resident of Massachusetts and was killed in that state while in the employ of the defendant. He left estate there which is being administered in the usual course. By a statute of Massachusetts, an action may be maintained by the administrator to recover damages for wrongfully causing death. Upon petition of one who would be a beneficiary of such an action, representing that the cause of action was assets in this state, the plaintiff was appointed administrator and brought suit against the defendant in this county. The defendant has no place of business in this state, and no service was made upon it, except an attachment of its cars which were found here. The Massachusetts administrator brought suit in that state the next day after the suit was begun in this state. After the suit was instituted, the defendant claimed an appeal from the decree appointing the plaintiff.

Hollis & Murchie, of Concord, for plaintiff. Streeter, Demond, Woodworth & Sulloway, of Concord, for defendant.

PEASLEE, J. The defendant herein seeks to appeal from a decree of the probate court appointing an administrator upon the estate of one Hix, and the question presented is whether it is entitled to take the appeal. More specifically, the question is, as stated in the defendant's brief, "whether a defendant in a cause of action for wrongful death, brought by an administrator appointed for the sole purpose of bringing such suit, is entitled to appeal from the decree of the probate court appointing the administrator." The statute provides that "any person aggrieved by a decree * * * of a judge of probate, which may conclude his interest," may appeal therefrom. P. S. c. 200, § 1. In Hutchins v. Brown, 77 N. H. 105, 107, 88 Atl. 706, it was held that an appeal from the appointment of a guardian would not lie in behalf of one whose legal right or interest was not affected by the appointment. "Generally, it may be said that one cannot be * * * aggrieved by a decision unless he has some private right which is affected thereby." Bennett v. Tuftonborough, 72 N. H. 63, 64, 54 Atl. 700, 701.

It is evident that the defendant is not a party interested in the estate. On the contrary, its interests are wholly adverse to the estate. Its avowed purpose in prosecuting this appeal is not that the estate may be more properly administered here, but that any administration in this jurisdiction shall be prevented. This appears to be conceded, and the proposition is advanced that the decree may injuriously affect the defendant's interests, although it has no interest in the estate. This involves a misapprehension of the scope of a decree appointing an administrator. Such a decree relates solely to the estate and its settlement; and, unless a party be interested in the estate, his interests cannot be affected by the decree.

The argument advanced is that the defendant ought not to be sued in this state; that, so long as the decree stands, it may be so sued, and therefore its interests are concluded, unless it can appeal. But its liability to suit in this state is not determined or in any way affected by the appointment of the administrator. The appointment merely supplies the deficiency of a party, caused by the death of Hix. It designates Worthen as the proper party to prosecute such claim as the estate of Hix may have. It does not settle that there is a valid claim, or that there is one which can be litigated in this state. So far as the defendant is concerned, the appointment is res inter alios acta. The decree simply establishes that the administrator is the legal representative of such rights as the estate may have. It is not conclusive, or even evidence, that the estate has any particular right, either against this defendant or against any other party.

It is urged that, so long as the appointment stands, the defendant may be compelled to come into this state and litigate the claim for damages on account of the death of Hix. Of course, this is true in the sense that, so long as there is a party in existence, he may begin suit, but it is not true in any broader sense. Jurisdiction over the defendant is neither created nor enlarged by the appointment. In short, the appointment places the estate in a...