Vance v. Railroad

*462 Walker, J., after stating the case: The question in this case is whether the appointment of Elisha Vance as administrator of the intestate is valid. The defendant contests the validity of the letters of administration upon the ground that the clerk of the Superior .Court of Buncombe County had no jurisdiction to issue them, as it appears the intestate was not domiciled in this State at the time of his death, but in the State of Tennessee, and that in such case, under section 1314, sub-section 4 of,The Code, letters could not be issued unless the intestate not only died in the county of the clerk, but left assets in the State or assets of the decedent have since come into the State. This position cannot be sustained, as it does not appear in the case that the decedent did not leave assets in this State or that assets belonging to him have not come into the State since his death. We do not mean to say that the validity of the letters cannot be questioned collaterally, the existence of such assets and their proper situs being a jurisdictional matter, but in the absence of any proof, one way or the other, we must assume that the clerk acted within his jurisdiction and that he has done his duty, a .presumption that should perhaps be indulged in the case of every judicial officer until the contrary appears. It is admitted by the defendant that the plaintiff was regularly appointed administrator of the decedent, and this is all that does appear. With this admission before us and nothing else appearing to impeach the plaintiff’s appointment as administrator, we must hold that it was lawfully made and that he has the right to prosecute this action. Lyle v. Siler, 103 N. C., 261; Shoenberger's Estate, 139 Pa. St., 132; In re Estate Mayo, 60 S. C., 401; 11 A. & E. Enc. Law, (2nd Ed.), 785. But the letters may be sustained on another ground. We held in Harlness v. Pharr, 133 N. C., 566, that the money recovered in an action brought under section 1498 of The Code (Lord Campbell’s Act) is no part of the assets of the decedent in the sense that it must be distributed according *463 to tlie law of the domicile, as the cause of action never belonged to the intestate and as the method of distribution prescribed by our statute is an essential element of this new remedy given by the statute and which did not exist at common law. The distribution of the fund, wherever recovered, must therefore be made according to the law of this State. Dennick v. Railroad, 103 U. S., 11. But it does not follow that the cause of action given by the statute is not sufficient as a basis for the grant of letters in this State and in the county where the injury and death occurred. To hold otherwise we think would in many cases defeat the object of the Legislature in passing the statute. It is provided therein that the action shall be brought by the administrator, and the statute embraces not only an intestate who was a resident of this State and a person domiciled here, but also a non-resident domiciled elsewhere, whose death was caused by a negligent or wrongful act. If it should so happen that a decedent, whose death was thus caused, had no assets in the State at the time of his death and none should afterwards come therein, the next of kin, as beneficiaries of the statute, would be deprived of their.right of action for damages, which was surely not contemplated by the Legislature. When it was provided that the action should be brought by the administrator, it was intended that he should be appointed by the clerk of the county where the death occurred, if the decedent was a non-resident domiciled in another State and without assets situated here; otherwise, the statute as to such non-resident would be nugatory. This view of the law is sustained by the weight of authority at least. In Hutchins v. Railroad, 44 Minn., 7, the court says: “It would seem to follow, from the appellant’s logic, that if the deceased left no assets, strictly so called, no administration could ever be had, and consequently the statutory right of action for the benefit of the next of kin could never be enforced. This right of action is given in case of the death of any person, whether a resi *464 dent of tbe State, or only sojourning temporarily, in it at the time of his receiving the injuries causing his death. The law will not allow it to be defeated for want of a party to maintain it. The fact that the statute gives such a right of action to the personal representative, and to him alone, implies the right to appoint, if necessary, an administrator to enforce it, and administer the proceeds in accordance with the statute.” “Speaking strictly,” says the court in Brown v. Railroad, (Ky.) 30 S. W., 640, “within the line of the general statutes on this subject, defining when, under what circumstances and what courts shall have power to appoint an administrator for a non-resident decedent, it may be that the matter sued for in this action is not a debt or demand belonging to, or owned by the decedent at the time of his death. Neither is it strictly personal estate of the decedent. But beyond these general statutes, we think the particular statute applicable to cases of this kind wherein the right of action is expressly given to an administrator, necessarily implies the right to have an administrator appointed by the local courts for this purpose alone, if there be no other necessity or right or authority for such an appointment. And we deem the court of the county where the injury was done and where the man died the proper court to entertain such jurisdiction.” In the case of In re Estate of Mayo, 60 S. C., 415, it was said: “The statute is remedial and should be liberally construed so as to accomplish its object. We therefore hold that the statute creating a right of action which cannot be enforced except by an administrator, and providing for a special distribution by said administrator of the proceeds, will warrant the probate court of the county where the intestate was killed in granting administration for the purpose of enforcing such right of action. This view is well supported by authority in other jurisdictions.” The provisions of the law construed in the cases cited and in numerous other cases mentioned therein, are substantially *465 like those to be found, in section 1498 and section 1374, subsection 4 of our Oode. The, construction given by those courts to similar enactments appears to be so reasonable and so much in accord with their intent and spirit that we do not ■ hesitate to adopt it as the correct exposition of our own law. Whether the administratrix appointed in Tennessee is entitled to recover against the defendant for the same cause of action stated in this case is a question not now before us. We have discussed the only question presented by counsel and find no error in the decision of the same by the court below. No Error.