State ex rel. Krey v. Probate Court

Gileillan, G. J. Certiorari to bring here the order of the Probate Court of Dakota county, denying an application for an order directing the administrators of an estate to pay a claim which had been allowed. The respondent moves to quash the writ on the ground that appeal, and not certiorari, is the proper remedy. The writ will lie, and it will lie only, to bring here a final determination of a party’s right, when no appeal is given. Under 1878 G. S. ch. 49, § 13, an appeal from such an order as here involved was allowed. But, though it seems strange, such an order is omitted in the specification of those from which an appeal may be taken in Laws 1889, ch. 46, known as the Probate Code, § 252. Section 254 provides who in certain cases may bring an appeal, but does not enlarge the operation of section 252. As the right to appeal depends entirely upon statute, there is none from such orders as this, and the writ will therefore lie. The administrators had no funds or property in their hands with which to pay the claim, unless the sum of about $800 received by them in settlement of an action brought by them to recover for causing, through negligence, the death of the intestate, may be applied to that purpose. The relator’s claim was for groceries and provisions sold to the deceased for the use of himself and family during something more than a year before the injury from which he died. He died November 21, 1890, and the action by the administrators was commenced April 21, 1891, and the money was received by them June 19th that year. Of course, it stands just as it would stand had it been received upon judgment in the action. Was the money, then, applicable to such a claim as the relator’s? No question could be made upon it as the law stood prior to Laws 1891, ch. 123. The action was given solely for the benefit of the widow and next of kin, not to recover such damages as the person injured [245] might have recovered had he lived, but, as the courts have always construed the statute, to compensate them for the pecuniary loss caused by the death; and under the statute the amount recovered, though in an action by the executor or administrator, was no part of the estate to be administered and applied to payment of debts and legacies. Whether so applicable now, and, if so, to what extent, depends on the proviso to section 1, ch. 123, above referred to. The section, after declaring, as the statute had always done before, that the recovery shall be for the exclusive benefit of the widow and next of kin, provides “that any demand for the support of the deceased, and funeral expenses, duly allowed by the probate court, shall be first deducted and paid.” The respondent insists that, as applied to causes of action accrued before it passed, this proviso would be unconstitutional, because taking away vested rights. But, with the the interpretation we place on the proviso, it is not necessary to decide that question in this case. We assume, then, for the purpose of this case, that the proviso is valid. How far did the legislature intend to change the law as it stood before? Did it intend to make the amount recovered subject to all debts of the deceased incurred within the period of the statute of limitations, for the support of himself and family? If so, the change is very great, for with most men a large part of the debts owing at their decease was incurred directly or indirectly for the support of themselves and families. Bearing in mind that the recovery is allowed to compensate for the pecuniary loss of the widow and next of kin, we cannot conclude it was intended to make all such debts payable out of it. Yet there is no alternative but to hold that, or to hold that only such demands for support as accrued in consequence of, or, at any rate, after, the injury causing the death, are payable out of the recovery Though the latter construction requires some restriction to the letter of the statute, we think it is according to the meaning of the legislature. But it is significant that the demand is confined to “the support of the deceased.” The terms do not extend to demands for support of the family. If we were to extend the proviso to demands accruing prior to the injury, and adhere to its letter, it would be necessary in many cases to ascertain how much [246] of such a demand was incurred for the support of the deceased, and how much for his family, — a thing difficult, if not impossible, to do. Eelator’s claim was not payable out of the fund in the hands of the administrators, and the order of the probate court was right. Writ quashed. (Opinion published 53 N. W. Rep. 463.)