Western Union Telegraph Co. v. Lipscomb , 22 App. D.C. 104 ( 1903 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

It. is not shown whether letters of administration could have been obtained in Virginia, where the deceased had his residence at the time of his death, or not. • If such létters had been obtained in that jurisdiction, it would seém clear the administrator could have sued and maintained the action in this District, for the alleged wrongful or negligent killing of the deceased here, under the act of Congress of February 28, 1887 (24 Stat at L. 431, chap. 281), authorizing foreign executors and administrators to sue and maintain actions in this District, as if letters had been granted here. But we think there is no ground for declaring the letters of administration granted to Lipscomb to be null and void for the causes, or any of them, stated by the appellants.

The fact that the deceased had his domicil in Virginia, and that he had no estate here, at the time of his death are not conclusive against the right to obtain letters of administration in this District. There are no negative or prohibitory terms employed in the statute authorizing the grant of letters of - administration, that confines the right to the ease where it can be shown that the deceased left personal estate to be administered for the benefit of creditors and distributees. If there be other legitimate functions to be performed, and which can only be performed, by an administrator, letters of administration may be granted for the purpose, by necessary implication.

The act of Congress of 1885, chap. 126, provides “that whenever, by an injury done or happening within the limits of the District of Columbia, 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 the 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.” * * * “That 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; and that 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.”

The terms personal representative of the deceased mean, of course, administrator or executor constituted according to law, and the statute giving the right of action contemplates that there shall be such personal representative duly appointed to give effect to the statute; or, otherwise, the right would, in certain cases, be simply nugatory for the want of a proper party to institute and prosecute the action. That provision of the act of 1885, chap. 126, which provides that the right of action shall be availed of by and in tbe name of the personal representative of the deceased, though contained in a subsequent statute, must be construed in pari materia with the provision in the pre-existing statute providing for the appointment of an administrator to administer the personal estate of the deceased for the benefit of his creditors and his distributees. An administrator appointed under either provision is strictly a representative of the deceased, and it is through the latter that the right devolves upon the administrator, though the act of Congress of 1885 excludes the creditors, and directs the recovery to be distributed to the next of kin of the deceased, according to the provisions of the statute of distributions. There is no substantial reason, therefore, for denying letters of administration in the case where the fund that may be recovered is exclusively distributable to the next of kin of the deceased under the statute, though there be no personal estate of the deceased to be administered under the general law of administration. And the fact that the deceased was not a resident of this District at the time of his death in no manner precluded the right to letters of administration in such case as the present, where the cause of action under the statute has accrued in this District.

This question would seem to have been definitely settled in this jurisdiction by the decision of the supreme court of the District in general term made in the case of Kent v. Pennsylvania R. Co. 6 Mackey, 335, and the decision of this court in the case of Washington Asphalt Block & Tile Co. v. Mackey, 15 App. D. C. 411. The facts in those cases were not, in all particulars, the same as in the present case, but the principle upon which those cases were decided clearly negatives the right claimed in this case by the appellants to have the letters of administration granted to the appellee vacated. We perceive nothing in the facts of this case to justify a departure from the principle of the decisions to which we have referred, and we therefore affirm the order appealed from, with costs, and it is so ordered.

Order affirmed.