
    [No. 17941.
    Department One.
    August 9, 1923.]
    
      In the Matter of the Estate of Charles Jennings Yarbrough. Oregon-Washington Railway & Navigation Company, Respondent, v. Mary Frances Yarbrough, Appellant.
      
    
    Executors and Administrators (10) — Right to Appointment— Husband or Wipe. After lapse of the statutory time within which a widow may apply for letters of administration upon her husband’s estate, she stands in the same position as a stranger in her application for letters.
    Same (4-6) — Jurisdiction op Courts — Domicile op Decedent and Situs op Assets. Although the laws of a sister state give a right of action to the personal representatives for the wrongful death of the decedent in that state and makes it an asset of the estate, the widow cannot apply for letters in this state, after the lapse of the time allowed for application by a widow; since, until administration had been granted in that state, there was no person authorized to bring the right of action into this state, and the courts of this state should not be vexed by the importation of litigation where the home courts afford adequate remedies (Holcomb, J., dissenting).
    Appeal from a judgment of the superior court for King county, Dykeman, J., entered March 27, 1923, upon findings, cancelling letters of administration, upon petition of a debtor of the estate.
    Affirmed.
    
      H. A. P. Myers, for appellant.
    
      Chas. F. Munday, for respondent.
    
      
       Reported in 216 Pac. 889.
    
   Mackintosh, J.

— Charles Jennings Yarbrough, a resident of Oregon, was killed, on November 30, 1921, in that state, in a railroad collision between two trains owned and operated by the respondent, an Oregon corporation, which has no person in this state upon whom service of process can be made, so far as the record in this matter discloses. Under the law of Oregon,, .. -

“When the death of a person is caused by the wrongful act .... of another, the personal representatives of the former may maintain an action . . . . and the amount recovered shall be administered as other personal property of the deceased.”

The deceased left no personal or real property, and his estate consists entirely of the right of action against the railway company. Mary Frances Yarbrough, claiming to be the widow, came to King county in this state, where, in March, 1922, letters of administration were ex parte issued to her, upon her petition alleging that she was the widow and that the deceased left estate subject to administration in King county. We are not concerned, however, with these letters of administration, as they were, subsequently cancelled, and thereby is removed from this controversy the question as to whether the appellant is the widow. New letters were issued to her in July, 1922, upon notice and hearing. More than the statutory time within which the widow, as such, was entitled to appointment having elapsed, she stands in the same position as would a stranger, and. the question is whether there was any jurisdiction in the court of this state to appoint an administratrix under the circumstances above outlined.

The question has arisen on the petition of the railway company to revoke the letters of July, 1922. No serious objection is urged to the right of the respondent. to so proceed. All are agreed that the cause of action against the railway company is a transitory one. Respondent admits that the cause of action against it would permit of an administratrix being appointed in Oregon.

Consequently, we have for consideration this condition of affairs: X, a citizen of the state of A, dies' there, leaving no property, hut a right in his estate to begin suit for his death against an A corporation, whose wrongful act occurred in A, the suit to be governed and the proceeds to be distributed according to the laws of A. A few months later, Z, who may be a total stranger to all interested, applies in the state of B for letters of administration there, under a law which permits administration where there is property of the deceased.

Although the cause of action against the railway company is a transitory one, it would seem that it must be brought into this state by someone having a right thereto, and there was no such person in this case, until an administration had been granted in Oregon. The cart seems to be preceding thh horse. Recognizing, however, that appearances are sometimes deceptive, and that an argument may be made against this view of the matter, which makes it less clear and satisfactory than is to be desired, we may better rest the decision on the ground that, to allow such a proceeding, is so liable to abuse and confusion that the parties will not be allowed the use of our probate courts.

The case of Ziemer v. Crucible Steel Co., 99 App. Div. 169, 90 N. Y. Supp. 962, seems to be the only one of many cited which presents facts exactly like those at bar, and the court there said:

“Though not a case like that of Collard v. Beach, 81 App. Div. 582, 81 N. Y. Supp. 619, which was an action to recover for negligence where both parties were nonresidents and the accident occurred in another state, what was therein said is applicable — -that: ‘The habit of importing such litigations as this into this jurisdiction, consuming the time of the courts, and requiring the people of the state of.New York to bear the burden and expense of trying actions wbicb ought to have been brought in other jurisdictions, where the home courts of litigants are open to afford adequate remedies, has become a great abuse and a just subject of complaint and protest. If it is to be encouraged, as was said in Hoes v. N. Y., N. H. & H. R. R. Co. . . . the flood gates of litigation in similar cases will be wide open, if not to establish a new legal industry, at all events to impose upon our already overworked courts the obligation to try actions imported from foreign jurisdictions. . .’ We think that in the case at bar, as was said in that case, ‘there is not a fact or circumstance suggested in the whole record. . . why the courts of this state should be vexed with this particular litigation. ’ ”

23 Corpus Juris, p. 1009, says:

“Cause of action for wrongful death. In view of the fact that a cause of action for the wrongful death of a decedent is sometimes, although usually not, an asset of his estate, and of the very general requirement that such an action shall be brought by the executor or administrator of the decedent, the existence of such a cause of action is usually regarded as a sufficient basis for a grant of administration in the jurisdiction where such cause of action arose, or where it may be enforced, even though the decedent was a non-resident and left no other assets in the jurisdiction.”

And further, that:

“It is clear that such a claim will not warrant administration in one state where the decedent was a. resident of another state in which the death and the negligence causing the same occurred and under the statutes of which the right of action arose.”

The last paragraph seems to cover the situation here. Other authorities used by counsel do not exactly fit the situation, for they arose where either (1) the death occurred in the jurisdiction appointing the administrator, or (2) the tort-feasor was a resident of such jurisdiction, or (3) the deceased was a resident of such jurisdiction, or (4) there were other assets heside the cause of action in such jurisdiction, or (5) the question passed on was whether the appointment could be collaterally attacked in the personal injury suit, or (6) in states where actions for death cannot be waged by a local administrator of a non-resident decedent, or (7) where death claims are not assets of the estate, or (8) where death claims are held not to have extraterritorial force. All interesting, but of very limited value in helping us out of this unusual complication.

One case cited by appellant deserves especial mention; Dennick v. Central Railroad Co., 103 U. S. 11; for there the elements making up this case seem to have also fused, but the case is robbed of its authority here when it does not consider the validity of the appointment of the administrator, which seems to have been assented to by all.

The superior court was correct in cancelling the letters, while all their rights are still preserved to all interested.

Main, C. J., and Mitchell, J., concur.

Holcomb, J.

(dissenting) — The quotation from the opinion in 90 N. Y. Supp. 962, is entirely illogical. That decision was based upon policy instead of principle, and was purely evasive. A right of action for the wrongful death of another, allowed by statute, is a chose in action. “A chose in action is- any personal right not reduced into possession but recoverable by a suit at law.”

It is conceded that at the time of appointment, appellant had the right of appointment.’ No other is shown to have had the right. It is immaterial that the wrongful death of decedent occurred in another state; and that the tort-feasor has a business domicile in that state, or any other.

..¡.The cancellation of the letters of administration that had been issued to appellant was erroneous and should be- reversed.

Therefore, I dissent.

On Reheabing.

[En Band. February 18, 1924.]

Per Curiam.

— -Upon a rehearing En Banc, a majority of the judges adhere to the opinion heretofore filed herein, and the judgment is therefore affirmed.  