delivered the opinion of the court.
Mary Elizabeth Whitley, the defendant in error, recovered judgment in the District Court for the County of Kootenai. Idaho, for the sum of $5,500 as damages for the death of her son, A. P. Whitley, alleged to have been caused by the negligence of the Railroad Company, the plaintiff in еrror.' The Supreme Court of the State affirmed the judgment (
The facts, upon which the question arises, are these: The Railroad Company, operates an electric railway between the City of Spokane, in the Statе of Washington, .and Coeur d’Alene, in the State of Idaho. On July 31, 1909, A. P. Whitley, a passenger, was killed in a collision at or near La Cross 'or Gibbs station, Idaho; and the court found that his death was caused by the defendant’s negligence. The law of the State of Idaho provided: f‘When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death.” (Rev. Codes, § 4100.) The deceased at the time of his death was a resident of Shelby County, Tennessee. He was survived by his wife, Josephine Whitley, and his mother, Mary Elizabeth Whitley, the defendant in error. Under the Idaho law, they were his sole heirs. In September, 1909, the Railroad Company entered into an agreement with Joseрhine Whitley, promising to pay to her the sum of $11,000 on account of the death of her husband, of which $1,500 was paid at once and the remainder was to be paid *493 upon her appointment as administratrix in Tennessee. Thereupon, in October, 1909, Josephine Whitley obtаined from the Probate Court of Shelby County, Tennessee, letters of administration upon her husband’s estate and by that court was authorized to settle with the Railroad Company for the sum above stated. Shortly after — on October 25, 1909 — the mother of the deceased brought thе present action against the Railroad Company in the State of Idaho. Josephine Whitley, having refused to join as a party plaintiff, was made a defendant. She was not within the jurisdiction of the Idaho .court and did not appear; under order of that court, а copy of the summons and complaint was served upon her without the State.,
In view of the commencement of this suit, the Railroad Company refused to carry out the agreement with Josephine Whitley and she as administratrix (in November, 1909) brought an action against the сompany in the Superior Court of the State of Washington to recover the sum of $9,500 alleged still to be due. In her complaint she set forth her appointment as administratrix, the negligence of the defendant causing the death of the intestate, the statute of Idaho, the settlement for-$11,000 authorized by the Probate Court of Tennessee, and the partial payment. It was not alleged that the mother, Mary Elizabeth Whitley, was an heir under the law§. of Idaho, where the cause of action arose, or that any recovery was sought on her behalf. The Railroad Company in its answer denied the wrongful act and set forth as an affirmative defense that the mother had sued in Idaho, was one of the heirs, and was entitled to maintain her action; and that, if the plaintiff succeeded, the defendant would be exposed to a double recovery. The administratrix replied, alleging that she had full authority under the laws of Idaho to agree'to a settlement of the claim and that the settlement would be a bar to a recovery in the Idaho action. Mary Elizabeth Whitley *494 was nоt a party to the Washington suit and no attempt was made to bring her in. It was swiftly determined, without contest. Service of the answer was acknowledged on November 16, 1909, and the reply was served on November 17, 1909. The cause was brought to trial on November 18, 1909; the pleadings were filed shortly after 9 o’clock on the morning of that day; at 9:45 o’clock findings were filed (with a conclusion of law overruling the defense of the Railroad Company), and at 10 o’clock on the same morning judgment was entered in favor of the plaintiff for the sum of $9,500'.
The Railrоad Company at once paid to Josephine Whitley the amount of the judgment and she removed this amount to the State of Tennessee. In the early part of the year 1910, the mother presented her petition to the Probate Court of Shelby County, Tennesseе, alleging that the administratrix had recovered by compromise the sum of $11,000, and that the petitioner, as an heir under the Idaho law, was entitled to one-half. The demand was contested and the petition was dismissed. On appeal to the Supreme Court of Tennessеe, the judgment was affirmed; it was held that the fund recovered by the administratrix was ‘to be distributed in accordance with the laws of the State of Tennessee, and not the laws of the State of Idaho,’ and that the mother had no interest in the proceeds of the recovery.
After these proceedings, the Railroad Company amended its answer in the present suit in Idaho, and pleaded in bar the Washington and Tennessee judgments. These defenses the. Idaho court overruled and, as we have said, the mother recovered judgment fоr $5,500.
In determining the question now presented, it is apparent that the fundamental consideration is that the right to recover damages for the killing of the decedent was created by the Idaho statute. That right could be enforced in another State, if the enforcеment was not
*495
opposed to its policy
(Dennick
v.
Railroad Company,
The construction of thаt statute by the Supreme Court of Idaho, with respect to the nature of the right of action created, is in accord with the accepted view of statutes similar to Lord Campbell’s Act. The recovery authorized is not for the benefit of the ‘estate’ of the dеcedent; the proceeds of the recovery are not assets of the estate. Where the personal representative is entitled to sue, it is only as trustee for described persons, — the ‘heirs’ of the decedent. The action, says the Supreme Cоurt of Idaho, is allowed upon the theory that the wrongful killing of the ancestor ‘works a personal injury to his heirs.’ They are the sole beneficiaries. The ‘heirs’ are those who under the laws of Idaho take in cases of intestacy; here, it .is conceded that these heirs were the widow and mother of the deceased, taking equally. 23 Idaho, pp. 659, 662. It may also be premised that when suit is duly brought by the trustee under such a statutory trust, it is a necessary and conclusive presumption that the trust will be executed and that the rights of the bene
*496
ficiariеs as fixed by the. statute which created the obliga-, tion will be recognized by all courts before whom the question of distribution may come.
Dennick
v.
Railroad Company,
The question, then, is one of jurisdiction, that is, whether the mother — Mary Elizabeth Whitley-1 — was represented by the administratrix in the Washington suit. The mother was not a party to that suit, and if she was not represented by the administratrix, the Washingtоn court was without jurisdiction as to her, and the Idaho court was not bound to treat the judgment as a bar to her recovery in the present suit.
Thompson,
v.
Whitman,
The Supreme Court of Idahо, having authority to construe the Idaho statute, has held that the administratrix did not represent the mother, and, consequently that the. mother’s right was not barred. The court thus expressed its conclusion:
''It clearly appears then, first, that the respondent in this case, Mary Elizabeth Whitley, had no right, of action and no claim whatever under the laws of the State ’ of Tennessee; second, that she was never made a party to the action prosecuted in the State of Washington, and that the action there prosecuted was not prosecuted for her or in her interest or on her behalf, and that she was neither accorded representation there in person nor by trustee, administrator or other representative. She has, therefore, clearly never been a party to the Washington judgment and is not bound by that judgment.
(Galveston H. & A. S. R. Co.
v.
Kutac,
It is left to the plaintiff in error to contend, in substance, that the Idaho court sustained the right of a personal representative, that is, of a duly appointed administrator, to sue under the Idaho statute for the benefit of the 'heirs,’ but denied сredit to the judgment in question, recovered in virtue of that right, simply because of the subsequent decision of the Tennessee court in refusing to permit the *498 mother to participate in the proceeds of the recovery; and extracts from the opinion of the Idaho court are quoted in support of the argument. It seems to us that this is too narrow a view of the decision of the state court. We think that the decision taken in its full scope and with its necessary implications involves the construction of the statute to the effect that the ‘heirs’ are entitled.,to sue on their own behalf, and that the statute does not give to an administrator or persónaLrepresentative an independent right of action, or authority to bind the heirs without their sanction, but an administrator is authorized by the statute to sue only on théir behalf and with their consent. As has been said, similar words in the statute of the State of Washington, have been similarly construed. See Copeland v. Seattle, 33 Washington, 415 (cited in the opinion of the Idaho court); Koloff v. Chicago, Milwaukee & Puget Sound Rwy., 71 Washington, 543, 550, 551. And under that construction there is no basis for the conclusion in the prеsent case that the mother was represented in the Washington suit and that she was bound by the judgment there recovered.' It is insisted that the mother ratified by endeavoring to obtain in Tennessee a share of the recovery. But this was a wholly barren proceeding. The administrаtrix resisted the petition, denying in effect that .she had represented the mother in the Washington suit and asserting that the mother had no interest whatever in that action or the proceeds. The court upheld this contention of the administratrix and the mother took nothing. Neithеr the position of the widow nor that of the Railroad Company was changed in any respect, and it cannot be said that this unsuccessful attempt altered the mother’s rights.
It is apparent that the Railroad Company cooperated with the administratrix in securing the judgment in her favor, without bringing the mother in as a party and without demanding that proof of authorization of the suit by *499 the mother should be furnished. Had the Railroad Company made such a demand, there is no reason to believe that it would not have been sustained. Relying upon what аppears to be an erroneous construction of the Idaho statute, it preferred to facilitate the administratrix in obtaining the recovery in the absence of the mother and without its being shown that the suit was brought in her interest and with her authority, and the predicament in Which it now finds itself is due solely to its own conduct.
Judgment affirmed.