Ferguson v. Washington & Georgetown Railroad, 6 App. D.C. 525

Ferguson v. Washington & Georgetown Railroad

6 App. D.C. 525 | D.C. Cir. | 1895

Mr. Chief Justice Alvey

delivered the opinion of the Court:

This is an action brought by Thomas B. Ferguson, a surviving husband, describing himself as administrator of his deceased wife, to recover damages for the alleged negligence of the defendant in causing the death of the wife.

The declaration is framed under the act of Congress of February 17, 1885,(23 St. 307, c. 126, sec. 1), by virtue of which the action is sought to be maintained. The act of Congress provides :

“That whenever the death of a person shall be caused by the wrongful act, neglect or default of any person or corporation, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured, or, if the person injured be a married woman, have entitled her husband, either separately or by joining with *532the wife, to maintain an action and recover damages, the person who or corporation which would have been liable if death had not ensued, shall be liable to an action for damages for such death, notwithstanding the death of the person injured, even though the death shall have been caused under circumstances which constitute a felony; and such damages shall be assessed with reference to the injury resulting from such act, neglect or default causing such death, to the widow and next of kin of such deceased person. Provided, &c.

“Sec. 2. Every such action shall be brought by and in the name of the personal representative of such deceased person, and within one year after the death of the party injured.

“Sec. 3. The damages recovered in such action shall not be appropriated to the payment of the debts or liabilities of such deceased person, but shall inure to the benefit of his or her family, and be distributed according to the provisions of the Statute of Distributions in force in said District of Columbia.”

To the declaration the defendant pleaded first, that the plaintiff never was the administrator of the deceased wife, and was never the personal representative of said deceased, within the meaning of the act of Congress of February 17, 1885, ch. 126; and, secondly, that the defendant was not guilty of the wrong alleged.

To the first of these pleas the plaintiff demurred, and to the second he joined issue in fact. The demurrer was overruled, and judgment entered for the defendant.

On this state of pleading, the question is, has the surviving husband the right to maintain the action ? The first plea is in bar of the action, and is in substance the plea of ne tinques administrator. This plea, according to some of the older authorities, has been treated as a plea in abatement simply; but, according to the best considered cases, and text writers of highest authority, it is a plea in bar of the action. Every plea in abatement must give the plain*533tiff a better writ; but the effect of this plea is, that the plaintiff has no right to sue at all in the character of administrator, without letters clothing him with that character, and is therefore a bar to the action, i Wms. Saund. 275#, in notes.

It is conceded that the plaintiff in this case never obtained letters of administration upon the estate of his deceased wife. It is contended, however, that, as by virtue and operation of the Maryland Testamentary Act of 1798, ch. 101, sub-ch. 5, sec. 8, in force in this District, the surviving husband has a right to sue in respect to all the choses in action of the wife, which by law may devolve upon him, without letters of administration granted, he may, therefore, sue and maintain this action as surviving husband, and, in that character, describe himself as admistrator of his deceased wife, and thus bring himself within the descriptive terms of the act of Congress of 1885, giving the right of action to the personal representative of the deceased person. But, dearly, this construction cannot for a moment be maintained.

By the common law, the husband was entitled to all the choses in. action of the wife, and if they were not reduced to possession during the life of the wife, and the husband survived the wife and was reduced to the necessity of suing either at law or in equity for their recovery, he was required to administer on the wife’s estate and sue in his capacity of administrator. But, being entitled as husband, he administered simply for his own benefit, for he took the choses when recovered; not as distributee or next of kin under the statute of distribution, but as husband. 2 Kent. Com. 136. In accordance with this principle, it was declared by the Lord Chancellor in the case of Watt v. Watt, 3 Ves. 244, 247, that, “ The description of next of kin of the wife can in no respect apply to the husband. He is entitled to the personal possession of the property of his wife jure mariti; her personal property vests in him by the marriage. At the death of the wife, if -it is necessary for him to have an ad*534ministration to enable him to get in her personal property, the administration granted to him is granted to him as husband ; and when we look at the statutes, there is no law that gives the husband a right by force of the statute to administer to his wife. The husband’s right is supposed in all the statutes.” The same principle is stated as settled law in the subsequent cases of Anderson v. Dawson, 15 Ves. 532, 536, and Bailey v. Wright, 18 Ves. 50, 55.

This was the state of the law at the time of the passage of the Maryland Act of 1798, ch. 101 ; and it was for the purpose of obviáting and dispensing with the useless formality of requiring the husband to take out letters of administration upon the estate of his deceased wife, that the provision was incorporated in the act that it should not, as theretofore, be necessary for the husband to take out letters of administration, but all the dioses in action of the wife should devolve upon her husband, in the same manner as if he had taken out such letters. And by the next section of the statute, the husband is clothed with special power to sue and recover in the right of his wife, either before or after her death, by specially setting forth the manner in which the debt or right accrued to the wife, and how the same devolved upon him. This right of the husband to sue in his character of surviving husband, without letters of administration, is a special statutoiy power, and does not extend by construction to any case other than that expressly declared by the statute. In this case, the alleged cause of action did not accrue in right of the deceased wife; but it accrued, if it exists at all, by reason of her death, causing loss to the parties entitled to compensation under the statute. The right of action is purely statutory, and the recovery can only be had by the personal representative of the deceased person. The personal representative is either the executor or administrator of the deceased. That is the legal and accepted definition of those terms ; and no other person can maintain the action under the statute. Under a statute of similar import, conferring the *535right of action upon the personal representative of the deceased, the Supreme Court of the United States, in Dennick v. Railroad Co., 103 U. S. 11, held the administrator of the deceased to be the proper party to maintain the action. The act of Congress giving this right of action has followed very closely and substantially the English statute of 9 and 10 Viet. ch. 93, known as Lord Campbell’s Act, and by that statute it is in terms provided, that the action shall be brought by and in the name of the executor or administrator of the person deceased; while, in the act of Congress of 1885, the descriptive enabling terms are generalized, and the action is required to be brought by and in the name of the personal representative of such deceased person. The surviving husband, describing himself as administrator, without having obtained letters of administration, has no authority to maintain the action ; he is not interested in the recovery, and he is not, within the sense and meaning of the statute, the personal representative of his deceased wife. It is only in this latter character that he could maintain the action.

The judgment entered for the defendant in the court below must therefore be affirmed, with costs to the appellee.

Judgme7it affirmed.