Estate of Russell v. Snow

OPINION

REID, Chief Justice.

This case presents an appeal from the decision of the Court of Appeals that affirmed the judgment of the probate court of Henry County denying an application for the appointment of an administrator ad litem. The petitioner/appellant is the plaintiff in a personal injury suit being held in abeyance pending the resolution of the issue presented on this appeal. The petition, which was denied by the probate court and the Court of Appeals, seeks the appointment of an administrator ad litem for the deceased driver of one of the automobiles involved in the collision so that that suit can be prosecuted. The proper construction of the statutes applicable to the facts presented shows the appellant is entitled to the appointment of an administrator ad litem.

Appellant, Wilma Snow, was involved in an accident with an automobile operated by George C. Russell on June 30, 1986. On June 29, 1987, she filed a suit against Russell in the circuit court seeking damages for personal injuries alleged to have been sustained in the accident. On March 24, 1988, Snow was granted a voluntary non-suit in that case.

On April 11,1988, George C. Russell died and, subsequently, his son, Andrew P. Russell, was appointed administrator of his estate. The administration was completed in due time, and the administrator was discharged by order of the probate court entered on December 22, 1988.

On March 22, 1989, two days before the anniversary of the dismissal of the original suit for personal injuries, appellant filed in the circuit court of Henry County another suit for personal injuries, in which “Andrew P. Russell, executor of the estate of George Russell” is designated the defendant. Andrew P. Russell, personally, filed a motion to dismiss, asserting that the suit is barred by the statute of limitations. (Russell’s standing to appear and raise the issue is not contested.) Snow then filed in the probate court the petition seeking the appointment of an administrator ad litem pursuant to Tennessee Code Annotated (T.C.A.) § 30-1-109.

The probate court dismissed the petition, and the Court of Appeals affirmed, holding,

Normally, an administrator ad litem can be appointed where no administration had been granted or could be procured or no administrator has been appointed. (Citations omitted.) In this case, the executor was appointed to administer the estate on April 21, 1988 and the estate was closed and the executor was discharged on December 22, 1988. Because an administration of Mr. Russell’s estate has occurred and there is no allegation that the executor had an interest adverse to the estate, there is no other provision under T.C.A. § 30-1-109 to appoint an administrator ad litem.

Review of the applicable statutes will put the issue before the Court in better focus. When a party who would have been a defendant in tort litigation dies before such litigation is commenced, the cause of action may be prosecuted against the personal representative of the decedent pursuant to T.C.A. § 20-5-103. Subsection (a) states:

In all cases where a person shall commit a tortious or wrongful act causing injury or death to another, or property damage, and such person committing such wrongful act shall die before suit is instituted to recover damages therefor, such death of such person shall not abate any cause of action which the plaintiff would have otherwise had, but such cause of action shall survive and may be prosecuted against the personal representative of such tort-feasor or wrongdoer.

A suit asserting a cause of action preserved from abatement by the above statute can be brought only against the personal representative of the decedent. A personal representative of a deceased tort-feasor must exist before a right of action for tort is ripe for enforcement. Brooks v. Garner, 194 Tenn. 624, 254 S.W.2d 736, 737 (1953); Goss v. Hutchins, 751 S.W.2d 821, 824 (Tenn.1988). Therefore, when there is no personal representative of the deceased tort-feasor upon whom process can be served, the plaintiff is entitled to have appointed an administrator ad litem pursuant to T.C.A. § 30-1-109, which provides, as follows:

(a) In all proceedings in the probate or chancery courts, or any other court having chancery jurisdiction, where the estate of a deceased person must be represented, and there is no executor or administrator of such estate, or the executor or administrator thereof is interested adversely thereto, it shall be the duty of the judge or chancellor of the court, in which such proceeding is had, to appoint an administrator ad litem of such estate for the particular proceeding, and without requiring a bond of him, except in a case where it becomes necessary for him to take control and custody of property or assets of the estate of his intestate, when he shall execute a bond, with good security, as other administrators are required to give, in such amounts as the chancellor or judge may order, before taking control and custody of such property or assets.

(b) Such appointment shall be made whenever the facts rendering it necessary shall appear in the record of such case, or shall be made known to the court by the affidavit of any person interested therein; and, in such proceedings in the chancery court, the chancellor at chambers or clerk and master of such court on a rule day shall have authority to make such appointment in vacation.

This Court has held that since an administrator ad litem is appointed for a special and limited purpose, it may precede the appointment of a general administrator and the two administrations may subsist together. McKamy v. McNabb, 97 Tenn. 236, 36 S.W. 1091 (1896). On the same principle, the special administration may occur after the general administration has been completed. The purpose of the administration is not determinative so long as it meets the statutory requirement that “the estate of [the] deceased person must be represented.” T.C.A. § 30-l-109(a). In the case before the Court, the right of the plaintiff to pursue his action against the deceased tortfeasor is dependent upon the appointment of an administrator ad litem. Under the statutes, he is entitled to that appointment.

The judgment of the Court of Appeals is reversed, and the suit is remanded for the appointment of an administrator ad litem and such other proceedings as may be appropriate.

Costs are taxed against Andrew P. Russell.

DROWOTA, DAUGHTREY and ANDERSON, JJ., concur. O’BRIEN, J., dissents.