In re Lowham's Estate , 30 Utah 436 ( 1906 )

McCARTY, J.

Tbe same questions being involved in tbe foregoing cases they were consolidated on this appeal and beard together, and it was stipulated that tbe judgment rendered in tbe matter of tbe estate of Joseph P. Lowham, deceased, A. I. Stone, administrator, Union Pacific Pailroad Company, appellant, should control, and be determinative of tbe other two cases. On March 30, 1905, William P. Lowham, a resident of the state of Wyoming, filed bis petition in tbe district court of Weber county, Utah, praying that letters of administration of tbe estate of Joseph P. Lowham be issued to one A. I. Stone. Tbe petition alleges in substance that on Nov. 12, 1905, at Evanston, Wyoming, Joseph P. Lowham died intestate ; that deceased left an estate in Weber county, Utah, consisting of a cause of action against tbe Union Pacfic Pail-road Company for injuries resulting in bis death; that deceased at tbe time tbe injuries were received, and at tbe time of bis death was a resident of Wyoming. Then follows tbe names and ages of tbe heirs at law of deceased. It further appears that at tbe time tbe petitition was filed, tbe petitioner was tbe administrator of tbe deceased in tbe state of Wyoming. Letters of administration were duly and regularly issued to A. I. Stone by tbe district court of Weber county, as prayed for in said petition.

It is admitted that tbe injuries which resulted in tbe death of tbe deceased were sustained by him in tbe state of Wyoming, and that letters of administration were obtained in the district court o-f Weber county, Utah, for the sole and only purpose of bringing suit in this state against the railroad companies mentioned, to recover damages for the death of decedent. It further appears that on the 24th day of April, 1905, A. I. Stone, as administrator of Joseph P. Lowham, deceased, brought an action in the district court of Weber county, Utah, against the Union Pacific Pailroad Company to recover damages in the sum of $20,000, on account of the death of said Lowham, which action is still pending and undisposed of. The Union Pacific Pailroad Company filed its petition in the district court of Weber county, in which the foregoing facts are recited and set out, praying that the letters of administration issued to A. I. Stone, in said estate, be revoked, vacated, and set aside, and that he be discharged as such administrator. Stone appeared and demurred, and filed a motion to dismiss and strike the petition from the files for, the reason: (1) That the Union Pacific Pailroad Company is not interested in the estate of said Joseph P. Lowham, and has no legal capacity or authority to- appear therein. (2) That the petition does not state facts sufficient to authorize the court to grant the relief prayed for. The court made and entered an order sustaining the motion and demurrer, and the petition was accordingly dismissed, from which order the Union Pacific Pailroad Company has appealed to this court.

Appellant’s first contention is that the right created and given by the statute of Wyoming, to recover damages for the death of a person caused by the wrongful act of another in that state, is not such an asset of the estate of the deceased as will authorize the appointment of an administrator to bring suit to- recover damages for death caused by such wrongful act. Section 3448, Pevised Statutes, Wyoming, 1899, provides:

“Whenever the death of a person shall be caused by wrongful act, neglect or default, and the wrongful act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to.recover damages in respect thereof, then in every such case •the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amounts in law to murder in the first or second degree, or manslaughter.”

Section 3449 of the same act provides that:

“Every such action shall be brought by and in the name of the personal representative of such deceased person; and the amount recovered in every such action shall be distributed to the parties and in the proportions provided by law, in relation to the distribution of personal estates left by persons dying intestate . . . and the amount so recovered shall not be subject to any debts or liabilities of the deceased.”

While a claim for damages for death by wrongful act is not a general asset of the estate under the foregoing provisions of the Wyoming statutes, we think it is a sufficient asset of the estate for the purpose of appointing an administrator. This court, in effect, so held in the case of In re Estate of Tasanen, 25 Utah 396, 71 Pac. 984. The doctrine declared in that case is not only in harmony with the great weight of authority, but is, we think, supported by the better reason. (Brown v. Railroad Co., 97 Ky. 228, 30 S. W. 639; Findlay v. Railroad Co., 106 Mich. 700, 64 N. W. 732; Hutchins v. Railroad Co., 44 Minn. 5, 46 N. W. 79; Merkle v. Bennington [Mich.], 35 N. W. 846; Griswold v. Griswold [Ala.] 29 South. 437; Railway Co. v. Reeves [Ind. App.], 35 N. E. 199; Robertson v. Railroad Co. [Wis.], 99 N. W. 433; Morris v. Railroad Co. [Iowa], 23 N. W. 143; 11 A. & E. Ency. Law [2 Ed.], 828.) Having determined that a claim, for damages for death by wrongful act, under the statutes of Wyoming, is at least a special asset of the estate, the nest question presented is, can the right thus given by the Wyoming statute be enforced in this jurisdiction through the medium of an administrator appointed by the courts of this state ? This question was squarely presented and decided by this court in the case of Utah Sav. & Trust Co. v. Diamond Coal & Coke Co., 26 Utah 299, 73 Pac. 524.

In view of the elaborate discussion of this branch of the case by appellant, in its brief, we have again given the subject careful consideration, and while there appears to be some conflict in the authorities on this question, the doctrine declared in the case of Utah Sav. & Trust Co. v. Diamond Coal & Coke Co., supra is upheld by the decided weight of authority. (Morris v. Chicago, R. I. & P. R. Co. [Iowa], 23 N. W. 143; Stewart v. B. & O. R. Co., 168 U. S. 447, 18 Sup. Ct. 105, 42 L. Ed. 537; Dennich v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439; Boston & M. R. Co. v. Hurd, 108 Fed. 116, 47 C. C. A. 615, 56 L. R. A. 193; Louisville & N. R. R. v. Shivell's Adm'r. [Ky.], 18 S. W. 944; Sargent v. Sargent [Mass.], 47 N. E. 121.) It being admitted that the proceedings leading up to the issuance of letters of administration to A. I. Stone were in accordance with the provisions of the statute regulating such proceedings, we are of the opinion, and so hold, that the district court of Weber county had jurisdiction to issue said letters, and that it did not err in dismissing appellant’s, petition to have them revoked.

The judgment is afflrmed, with costs.

BARTCH, C. J. and STRAUP, J., concur.