33 Kan. 83 | Kan. | 1885
Although the record in this case is an extensive one — embracing seventy printed pages —it is necessary for us to refer only to the ruling of the district court upon the plaintiff’s demurrer to the fourth defense set up in the amended answer of the railroad company. This, in our view, is decisive of the case. The plaintiff is the administratrix of the estate of the deceased under appointment from the probate court of Platte county, in the state of Missouri. She is an officer of the law of the state of her appointment, and therefore her powers are limited by the statutes of Missouri, and they cannot be changed or enlarged by the authority of the laws of this state, nor by any judicial construction of our courts. An administratrix takes only such powers as are conferred by law, and is merely an agent or trustee acting immediately under the direction of the law regulating her conduct and defining her authority. (Collamore v. Wilder, 19 Kas. 67.) In this state, the remedy, when death ensues from the wrong done, is by action in the name of the personal representative of the deceased, and the amount recovered will be for the benefit of the widow and children, if any, or next of kin. (City of Atchison v. Twine, 9 Kas. 350; Civil Code, § 422.) In Missouri, the personal representative of the deceased has no power to institute an action of this character. In that state, the action is to be brought: First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then by the father or mother, who may join in the suit, and each shall have an equal interest in the judgment; or, if either of them be dead, then by the survivor. (Vol. 1, Rev. Stat. of Missouri, 1879, §§ 2121, 2122, 2123, pp. 349-351.)
The fourth defense of the answer alleges that the adminis-tratrix of the estate of the deceased is prohibited by the law of the state of Missouri from instituting, maintaining, or
On the part of the plaintiff, it is contended that the right of a foreign administratrix to maintain such an action as this has been settled in K. P. Rly. Co. v. Cutter, 16 Kas. 568, and Perry, Adm’r, v. Rld. Co., 29 Kas. 420. The decision in Railway Co. v. Cutter, supra, and the language used in Perry, Adm’r, v. Rld. Co., supra, referring to the right of a foreign administrator or administratrix to prosecute in the courts of this state an action of this nature, was based upon the supposition that the authority of the foreign administrator or ad-ministratrix was the same under the statute of the state where appointed, as under the laws of this state, and therefore, under the rules of comity, a foreign administrator was allowed to exercise in this state all the powers which he or she exercised in his or her own state, not repugnant to the laws, nor prejudicial to the interests of ‘this state. But it has never been decided by this court that on account of courtesy, or for any other -reason, a foreign administrator or administratrix could exercise in this state powers which he or she could not exercise in his or her own state. (Land Grant Railway v. Comm’rs of Coffey Co., supra.) In the case of K. P. Rly. Co. v. Cutter, supra, the law of Colorado relating to administrators was not pleaded in the answer or referred to in the case; that decision was rendered upon the theory that the Colorado statute contained a provision similar to § 422 of our code. In Perry, Adm’r, v. Rld.
Finally, if it be urged that under this construction of the law and the decision of Perry, Adm’r, v. Rld. Co., 29 Kas. 420, there can be no party having a legal right to maintain an action of this character, where a resident of another state, whose death is caused by the wrongful act of another in this state, dies without leaving any estate or assets in this state, we answer that we do not make the law. If there is any omission in the statutes, the remedy is with the legislature. Instead of requiring the instituting of an action in the name of the personal representative of the deceased, where death ensues from the wrong done, the legislature can authorize an action to be maintained in the name of the widow or children, if any, or in the name of some one nest of kin to the deceased.
The order of the district court sustaining the demurrer was erroneous, and therefore the judgment must be reversed, and the cause will be remanded for further proceedings in accordance with the views herein expressed.