Young v. Marshburn

180 S.E.2d 43 (1971) 10 N.C. App. 729

L. A. YOUNG, Executor of the Estate of Thelma Y. Benson, Deceased and Myra Lee Benson Gilbert
v.
R. M. MARSHBURN and Seaboard Coast Line Railroad Company.

No. 7111SC114.

Court of Appeals of North Carolina.

March 31, 1971. Certiorari Denied June 10, 1971.

Bryan, Jones, Johnson, Hunter & Greene, Dunn, by K. Edward Greene Dunn, and Jos. H. Levinson, Levinson & Shaw, Benson, for plaintiff appellants.

Maupin, Taylor & Ellis, by William W. Taylor, Jr., Raleigh, for defendant appellees.

Certiorari Denied by Supreme Court June 10, 1971.

HEDRICK, Judge.

Before this case was argued, the appellant filed in this Court a motion that L. A. Young, executor of the estate of Thelma Y. Benson, "be joined as a defendant in this action." This motion is denied for that L. A. Young, executor, is not a proper party to be joined as a defendant in an action which he alone by statute is authorized to commence. G.S. § 28-173.

The appellant's single assignment of error presents the question of whether anyone other than the executor, administrator, or collector of an estate can maintain an action for wrongful death. The answer is no.

"The right of action for wrongful death is purely statutory. It may be brought only `by the executor, administrator, or collector of the decedent.' G.S. 28-173. * * * If an action for wrongful death is instituted by one other than the personal representative of a decedent, duly appointed in this State, it should be dismissed. * * *" Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963).

An action may be dismissed for failure to state a claim upon which relief can be granted on motion filed pursuant to Rule 12(b) (6). We hold that the plaintiff, Myra Lee Benson Gilbert, the adopted daughter of Thelma Y. Benson, may not maintain an action for wrongful death in her own name; therefore, she has failed to state a claim upon which relief can be granted. The order dismissing the action is affirmed.

Affirmed.

CAMPBELL and BRITT, JJ., concur.