125 Tenn. 408 | Tenn. | 1911
delivered the opinion of the Court.
This case was begun by petition filed by the Louisville & Nashville Eailroad Company, in the county court of Davidson county, to revoke letters of administration granted by that court to Jno. B. Herb- upon the estate of Leo F. Herb, deceased, because it had no jurisdiction or authority to grant the same.
It is further alleged that Leo F. Herb at the time of his death, and when said letters of administration were applied for and granted, had no goods, chattels, assets, or any estate, real or personal, in Davidson county, nor any debtor or debtor of a debtor residing in said county, and that there ivas no suit to be brought, prosecuted, or defended in said county in which his estate was interested. It is charged upon these facts that the county court of Davidson county was without jurisdiction to grant letters of administration upon the estate of the decedent, and that the same should be recalled and revoked. The prayer is for this special relief and for general relief.
The demurrer was sustained by the county and the circuit courts, but was held bad by the court of civil appeals, and the case is now before this court upon a petition for certiorari to review the action of the latter court.
We are of opinion that the petitioner has such interest in,the administration of the estate of Leo. F. Herb- to entitle it to prosecute this proceeding. John B. Herb has sued the petitioner in the capacity of administrator of the estate of the decedent. If he was not lawfully appointed, the petitioner has the right, in a proper way, to show that fact, and thus defend itself from being harassed by a suit brought without authority of law, and from complications that may arise, should his letters of administration be revoked, upon the application of some one interested in the estate of the decedent as a creditor, nest of kin, or otherwise.
The right of a plaintiff to maintain an action in the capacity he sues, or to sue in a particular court or jurisdiction, may always be challenged by a defendant,
In support of the other question presented for the defendant, it is said that the right of action which the personal representative of Leo F. Herb has against the petitioner for the alleged unlawful killing of the decedent is assets or estate of the decedent, or a debt due decedent, within the meaning of our Code, section 2203, t subsections 1 and 2, anil that the action to recover the same is a suit in which his estate is interested, within the meaning of subsection 4 of said section, sufficient to confer upon the county court of Davidson county jurisdiction to grant letters of administration upon the estate of the decedent. We cannot agree to this contention.
The jurisdiction of the county courts of this State to appoint administrators upon the estates of citizens and residents of other States and foreign countries has been the subject of legislation, and can be exercised only in the cases provided by that legislation. It is to be found in Code, sections 2203-2205 (Shannon’s Ed., sections 3935-3937). Section 2203 is in these words:
*414 “Sec. 2203. Nonresident’s Estate — Administration.—■ Letters testamentary or of administration may be granted upon the estate of a person who resided, at the time of his death, in some other State or territory of the Union, or in a foreign country, 'by the county court of any county in this State.
“(1) Where the deceased had any goods, chattels, or assets, or any estate, real or personal, at the time of his death, or where the same may be when said letters are applied for.
“(2) Where any debtor of the deceased resides.
“(3) Where any debtor of a debtor of the deceased resides, his debt being unpaid when the application is made.
“(4) Where any suit is to be brought, prosecuted, or defended, in which said estate is interested.”
The other sections relate to suits in the chancery and supreme courts, and have no application to this case.
These sections were taken from Acts 1831, ch. 24, and Acts 1841-42, ch 69, enacted at a time when the right of action for personal injuries abated or was extinguished by the death of the injured party, and they could not have been intended to include such claims for damages as assets of the estate of a decedent. We do not think such rights of action are assets or estate of a decedent within the meaning of the statutes. The action, if any, which the personal representative of Leo P. Herb has against the petitioner for his unlawful killing, is under the statutes of Kentucky where the alleged wrong occurred. There, is nothing in the record to show the na
It is well settled that assets, within the meaning of our administration laws, include only property subject to the payment of the indebtedness of decedents. They do not even include property which he owned and exempt in favor of the widow and infant children.
This question has not before been presented to this court, but has been passed upon by the courts of last resort in Kentucky and Indiana, and there held in accordance with this opinion. Hall’s Adm’r v. L. & N. R. R. Co., 102 Ky., 484, 43 S. W., 698, 80 Am. St. Rep., 358; Jefferson R. R. Co. v. Swayne’s Adm’r, 26 Ind., 483.
But if a claim for damages growing out of the alleged killing of one by the wrongful act of another was assets of the estate of the deceased within the meaning of our statutes or those of Kentucky, the county court of Davidson county was without jurisdiction in this case.
The general rule is that all simple contract debts and other claims of less dignity, due the estates of decedents from others, are assets for administration in the juris
The Louisville & Nashville Railroad Company is a corporation created and organized under the laivs of the State of Kentucky. It has its domicile .and offices and agents in that State, and there operates a railroad. The decedent, Leo F. Herb, was a citizen and resident of that State, was there injured, and there died. The cause of action which arose from his alleged wrongful killing is one for unliquidated damages. The jurisdiction, therefore, to grant letters of administration upon the estate of the decedent to prosecute this right of action, is solely in the probate courts of Kentucky.
Our statutes were enacted to provide for the administration of the estates of nonresident decedents found in this State, because the personal representative appointed in the State where the decedent resided at his death has no authority here. It was not intended that' the courts of this State should assume jurisdiction of assets of citizens and residents of other States and within the jurisdiction of their courts. The comity which prevails among the several States forbids such construction.
In Young v. O’Neal, 3 Sneed, 55, it was held that the executor of a decedent in the State of Illinois could not collect a note due his intestate from a citizen of this State, and here at the time of the death of the testator. But it is said: “If the debtor and creditor both reside in the same country at the time of the creditor’s death,
The right of action in quqestion cannot have a situs- and be assets in more than one State, and being in Kentucky, and within the jurisdiction of the courts of that State, it is clear that it is not within the jurisdiction of the courts of this State.
The claim for damages growing out of the death of a decedent is not a debt. That term is applied to a fixed or specific sum due by contract, and not to unliquidated damages recoverable in an action for a tort. But, if it was a debt, what we have said above is conclusive that its situs is in Kentucky, where the creditor and debtor both resided at the death of the former.
It follows from what has been said that subsection 4 of section 2208 did not authorize the county court of Davidson county to exercise probate jurisdiction in this case, because the estate of decedent is not interested in the suit to be brought by or for his widow, children, or next of kin. This provision was also intended to cover only those cases where it is necessary, in order to protect the estate of the decedent, to bring a suit in this State. The action which it is sought to bring against the Louisville & Nashville Railroad Company for the death of the decedent is one that can as well be brought in the State of Kentucky, by the laws of which it is given, as in this State, and there is no reason it should be brought here.
Therefore, there is no error in the judgment of the court of civil appeals overruling the demurrer, and the writ of certiorari to reverse the same is denied.