146 A. 395 | N.H. | 1929
This action was brought by the plaintiff as administratrix by appointment in Massachusetts, the domicile of the deceased, against defendants resident in this state, to recover for death from an injury received here.
In claims for death the nature of the right of action, and the party in whom it is invested, are fixed by the lex loci delicti. Marshall v. Railroad,
The contentions of the defendants are that the plaintiff, domiciliary administratrix, was not an "administrator of the deceased party" within the meaning of the statute, and that she was, therefore, wholly without authority to bring the suit; that her attempted action was a mere nullity; and that, the limitation having run, the plaintiff's writ is incapable of amendment by substitution of herself as the ancillary administratrix so as to relate back and cure her defective suit.
In support of their contention of the plaintiff's want of authority the defendants cite the general rule that an administrator cannot sue outside of the state of his appointment, and assert that the legislature, acting in the light of the repeated recognition of this rule by our courts (Sabin v. Gilman,
While the rule presupposes that an administrator has no claim to recognition as a matter of right, beyond the bounds of the state of his appointment (Goodall v. Marshall, supra, 89; Luce v. Railroad, supra, 590), such want of legal right is not the reason for the rule. The rule does not arise from any want of inherent authority in the court to accord such recognition. Leonard v. Putnam, supra, 252. See Lomas v. Hilliard,
The official character and acts of foreign representatives are being constantly recognized, and rights based thereon enforced by the courts of all the states in numerous situations. An executor or administrator, authorized by the law of the deceased's last domicile, will be recognized as the person to whom ancillary probate will be granted in another state (2 Wharton, Confl. Laws (3d ed.), s. 608), and he may appeal from a decree appointing another to such office. Graves v. Tilton,
While the recognition of foreign representatives and the effect given to their official acts in these and other divers situations have been justified and explained upon various considerations consistent with the rule, their very number and variety tend to show that, in a larger sense, the so-called rule that executors and administrators will not ordinarily be granted extra-territorial recognition, and therefore will not generally be permitted to bring actions in the courts of foreign jurisdictions (Luce v. Railroad, supra, 590), is but an exception to the broader doctrine that the acts of foreign representatives or fiduciaries, as a matter of practice, convenience and expediency, will be given effect through the exercise of a liberal comity. See Butler v. Butler, supra. An exception is made whenever such a course would conflict with any principle of public policy. It is in such a conflict with state policy that the denial of the right of action generally to foreign administrators, without first taking out letters here, finds sufficient, and its only justification. Upon whatever ground the rule calling for such denial may formerly have been thought to rest it is now generally recognized that it is based solely upon the policy of the courts of each state to protect resident creditors of the decedent against the withdrawal into another state of assets on which they may equitably rely for the payment of the debts that may be due them. Purple v. Whithed,
The damages recoverable under the statute by its terms (s. 13) "shall belong and be distributed" to the designated beneficiaries. They are not assets of the estate within the ordinary meaning of the word. Cogswell v. Railroad,
Nor is it perceived that the recognition of a domiciliary administrator as the plaintiff in actions under our death statute offends any state policy so as to require his exclusion under the broader principles of comity. The argument that we would have no assurance that the foreign administrator will distribute the funds he may secure by a verdict according to our law, and that, therefore, it would be unreasonable to so construe the statute that its enforcement would have to be pursued outside our jurisdiction, is without merit. Such a suggestion loses sight of the fact that the relation of the representative to the beneficiaries in respect to the distribution of the fund which may be recovered here bears no analogy to that of the ordinary representative to the creditors and legal recipients in the administration of the assets of the deceased. In the latter case many conflicting principles of state law are involved in the application and distribution of such assets, while in the former case the statute definitely defines the classes of the beneficiaries and upon recovery, leaves no question of *54
distribution for any court to decide except to fix the identity of the members of the class in case of dispute and to compel an accounting. In these particulars the domiciliary administrator is answerable to the courts of the state of his domicile, where it may safely be assumed the rights of the beneficiaries will be protected. Robertson v. Railway,
We therefore come to the interpretation of the statute unhampered by any rules or questions of state policy peculiar to the ordinary administration of intestate property to which it has no relation, except as it utilizes the personal representative of the decedent, ex officio, as the instrument of enforcement of the right of action which it provides. The right accrues to the "administrator of the deceased party" eo nomine, as a trustee merely for the designated beneficiaries. He derives his authority to bring the suit not from his probate appointment but wholly from the statute. In his capacity as administrator of the effects of his intestate he has no more interest in the suit than he has personally.
The statute creates a new cause of action unknown to the common law. Davis v. Herbert,
What then did the legislature mean when it provided that the action should be brought by the "administrator of the deceased party"? The provision it was writing into the laws was not provincial in character. Neither the persons for whose death recovery was provided, nor the beneficiaries for whose benefit the action was to lie, were limited to residents of the state. It must have been in the contemplation of the legislature that, if the rights created were to be effectively enforced, recovery must be sought in the jurisdiction where the defendant, or his property, could be found. It must have understood that the domicile of the deceased and the forum of enforcement, one or both, would frequently, and of necessity, be beyond the bounds of the state. In specifying the person to be invested with the authority of enforcing the rights of the designated beneficiaries the legislature, therefore, selected a class of officials common to all jurisdictions the members of which usually represent deceased persons, and who would therefore be convenient of appointment. No attempt was made to be specific by limiting the authorized plaintiff to the domiciliary, ancillary or domestic members of the class. The legislature might have provided that the action be maintained by the personal representative of the deceased appointed by a probate court of this state, or by the ancillary representative of the deceased in the state where recovery should be sought; or it might have provided that the action should be brought in the names of the beneficiaries themselves. Where death statutes have been thus specific or exclusive, it would seem that, by the weight of authority, the action can be brought only by the person or persons designated (Am. Law Inst. Restatement, Confl. Laws (Tent.), ss. 431, 432), although there is authority that, because of the remedial character of these statutes, the rights of the beneficiaries will not be allowed to fail for the want of a trustee qualified to bring the action. But with this question we do not have to deal, and upon it no opinion is expressed. The designating language here is general. It is broad enough to include either the domiciliary administrator, or an ancillary administrator, or a foreign or domestic administrator. There is no ambiguity in the words used. An ambiguity can arise only when there is more than one person answering the description. *56
It would seem that the statute, by the grant of valuable rights for the benefit of the specified beneficiaries, impliedly confers upon the probate courts of any state where the enforcement of such right may be properly sought the power to appoint an administrator who may bring the action. Southern Pacific Co. v. De Valle Da Costa, 190 Fed. Rep. 689; Howard v. Railway,
While it may fairly be assumed that the legislature had in mind the domestic administrator if there be one, there is nothing in the language showing an intention to restrict the court in the exercise of its powers, under the principles of comity, to recognize the domiciliary administrator in the absence of a local representative. It is our conclusion that the legislature used the words "the administrator of the deceased party" as inclusive of any representative who, by comity or otherwise, may be admitted to sue in this forum without infringing any principle of state policy. See 31 Harv. Law Rev. 1162, 1163. What was said by the court in Anderson v. Company, 210 Fed. Rep. 689, 691, 693, 694, in relation to the federal employers' act is pertinent to the issue here. That act invested the right of action in the "personal representative" of the deceased. Replying to the contention that the domiciliary administrator only was intended the court there said: "The statute employs the generic term `personal representative,' and so describes a familiar class that would naturally include members that are ordinarily appointed in outside jurisdictions for legitimate objects of administration. In the absence then of express restriction to particular members of such a class, it can hardly be presumed that there was legislative apprehension of abuses from inclusion of the whole class. . . . Now, the effect of the remedial nature of the . . . Act and the representative character of the present suit cannot escape attention in a situation like this. Both of these features, together with the liberal construction they manifestly imply, would seem to be inconsistent with the idea that a right of action was vested solely in the domiciliary administrator. . . . the controlling purpose of the act of Congress, . . . is to benefit the surviving relatives, not the personal representative, of the deceased. Hence, as it seems to us, it is more in consonance with the statute, and is but giving effect to one of its paramount objects, so to construe it as to permit any validly appointed personal representative of a deceased employe to maintain the suit; and especially must this be so where it is plain, as here, that no injustice can thereby result either to the beneficiaries or *57
the defendant." See also Louisville Nashville Railroad Co. v. Jones,
In the interpretation of the special statutes in the several states, modeled like ours on Lord Campbell's act, there is much conflict of authority as respects the person intended to be authorized to bring the action by the various general appellations employed. The question of the legislative intention has arisen under a great variety of circumstances and it would be impossible to reconcile all the decisions. The conclusion which we have reached as applied to the situation here presented, however, is supported by well considered cases, where like questions have arisen under the same or analogous circumstances. Pearson v. Railroad, 286 Fed. Rep. 429; Robertson v. Railway,
We have here a non-resident decedent who, so far as appears, left neither property, creditors nor beneficiaries within this state. The record discloses no ground for the appointment of an administrator in this state except for the special purpose of enforcing the rights of the beneficiaries under our statute. The plaintiff herself is the principal, if not the only beneficiary, and no other party in interest appears either seeking administration here or asking for protection against the plaintiff. At the time the action was brought the plaintiff, as domiciliary administratrix, was the sole probate representative of the deceased. Had the defendant settled with her in good faith and accepted her discharge there would seem to be no question but that it would have been protected thereby. Cogswell v. Railroad, supra, 195; Luce v. Railroad, supra, 590, 591, and cases cited; Hodges v. Kimball, supra, 847. Had the plaintiff's suit proceeded to judgment without objection, satisfaction thereof would have afforded no less protection. The sole legitimate interest of the defendant, as respects the official character of the plaintiff, is to be protected against the parties in interest. See Worthen v. Railroad,
Whether a domiciliary administrator should be required to procure ancillary appointment here, will depend upon whether such course is desirable for the convenience or protection of the parties. If, upon objection to the maintenance of a suit by the foreign domiciliary administrator, it is made to appear that the interest of either party or any beneficiary will be promoted or better protected by requiring the appointment of and the substitution of an ancillary administrator such a course will be pursued.
Until objection was made the plaintiff was the undisputed trustee for the statutory beneficiaries. As the action, except for such objection the consequent appointment of a domestic representative, would have been maintainable as brought, the writ is amendable by the substitution of the ancillary for the domiciliary administratrix. The substitution of one qualified representative for another is not the commencement of a new action, but merely the maintenance of the action in a more approved form. It follows that the defendants' contention that the action was not seasonably brought is without merit. There was no error in the ruling that the plaintiff was not precluded by law on the record from maintaining the suit for her beneficiaries under the statute.
Exceptions overruled.
All concurred. *59