
    LINDEN KENT Et Al., Administrators of JOHN T. FRANEY, Deceased, vs. THE PENNSYLVANIA RAILROAD CO. Et Al.
    The mere fact that suit has been brought against a party by the administrators of the estate of a decedent gives such party no such interest in the estate as entitles him to have the letters of administration revoked on the ground that they were illegally granted. If the Court had no jurisdiction to grant the letters, that may be set up in the action itself as matter of defense, since, in such case, the plaintiffs will have no legal capacity to sue.
    At Law.
    No. 26,737.
    Decided March 19,1888.
    The Chief Justice and Justices Oox and James sitting.
    Appeal by defendant, Baltimore and Potomac R. R. Co., from an order denying petition to revoke the plaintiffs’ letters of administration.
    On the 19th of February, 1885, John T. Franey, a railway postal clerk, was serving in that capacity on a postal car attached to a train of the Alexandria and Washington Railroad, a road in which all the defendants were alleged to be jointly interested. The train collided with another at a place called Four Mile Run, in the State of Virginia. In this collision the postal car was demolished and Franey was so severely injured as to cause his death a few days afterward.
    By the law of the State of Virginia—
    “ Whenever the death of a person shall be caused by the wrongful act, neglect or default of any person or corporation, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured, or, if she be a married woman, her husband, either separately or together with her, to maintain an action and recover damages in respect thereof, then, and in every such case, tbe person who, or corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony; provided, that in no case shall the recovery exceed $10,000.
    “ Every such action shall be brought by and in the name of the personal representatives of such deceased person, and within twelve calendar months after his or her death. The jury in any such action may award such damages as to it may seem fair and just, and may direct in what proportion they shall be distributed to the wife, husband, parent and child of the deceased.
    “The amount recovered in any such action shall, after the payment of costs and reasonable attorney’s fees, be paid to the wife, husband, parent and child of the deceased in such proportion as the jury may have directed, or, if they have not directed, according to the Statute of Distribution, and shall be free from all debts and liabilities of the deceased; but if there be no wife, husband, parent or child, the amount so received shall be assets in the hands of the personal representatives, to be disposed of according to law.”
    In January, 1886, Martha Praney, the widow of the deceased, filed a petition in this Court, holding a special term for orphans’ court business, in which she alleged in substance as follows:
    That she is a resident of the County of Fauquier, in the State of Virginia; that she is the widow of said John T. Franey, who died intestate on the 21st of February, 1885, leaving nine infant children, naming them; that at the date of his death he was a citizen of Virginia and resided in the County of Fauquier, in said State; that, saving a few articles of household furniture, he left no property and had no creditors; that she is a citizen of the United States and resided in said County of Fauquier; that she has a claim against a railroad corporation or corporations within the District of Columbia for causing her husband’s death;that she is advised that letters of administration in the premises are necessary, and that she is entitled to have them issued to her; that she waives her right in favor of Linden Kent and---, of the City of Washington, in the' District of Columbia, and she hereby consents and requests that letters of administration issue to them.
    Letters pf administration on the estate of the deceased were accordingly granted to Linden Kent and James Lowndes.
    On June 28, 1887, the Baltimore and Potomac Railroad Company filed its petition in the same Court, setting forth the filing of the foregoing petition and the issuing of said letters to Kent and Lowndes, and that by virtue of said letters the said administrators had instituted an action at law in this Court against the petitioner and several other railroad corporations to recover damages, by virtue and upon the authority of an act of the Legislative Assembly of the State of Virginia, because of the death of the said intestate.
    “That the petitioner is informed and believes, and therefore avers, that the said John T. Franey never resided in the District of Columbia, and that no assets belonging to his estate have ever been in the District of Columbia, either before or since his death, and that- the sole basis for the claim to letters of administration consisted in said unliquidated claim for damages; and further that the said Franey, at the time of his death, and a long time prior thereto, was a citizen of the State of Virginia, and that his sole residence was in the said Warrenton, in the said State, and that all the personal property owned or held by him, or which he had any interest in, was in the State of Virginia.
    .“Your petitioner is advised by counsel, and therefore submits, that this Court is without authority or jurisdiction to issue the said letters of administration, and that they are therefore null and void, and that, because the same were issued ill advisedly, they ought to be, and your petitioner' has a right to demand that they shall be, revoked.”
    The said action at law is number 26,737 on the docket of this Court, and is still pending; that an issue of law was raised therein which has since been decided; but no plea Of any kind by this petitioner, or by any of the'other defendants therein, has yet been interposed.
    ' The petitioner, therefore, prays, “ first, that the said Linden Kent and James Lowndes may be cited to answer this petition within a reasonable time; second, that the said letters of administration, so far as aforesaid issued, may he revoked' and declared to be null and void; and third, that' the petitioner may have such other and additional relief as may be proper in the premises.”
    • A citation having accordingly issued to the administrators, they filed their answer, setting forth: “That their claim for administration on said estate and • the letters issued thereon were based upon the claim or demand against the said several railroad companies set out as an exhibit; that service or process was duly had on the said defendant corporation, who appeared by counsel and demurred to the declaration, which said demurrer on the - day of -was overruled by the Supreme Court, holding a Special Term, and leave given to the defendants to plead thereto within twenty-days. They referred to the said declaration as setting forth specifically the nature and character of said existing claim as the basis of said administration, which, under the statute, in accordance with the decision of the Supreme Court of the District of Columbia, sets forth the proper cause of action and right to recover against the said defendants.”
    The matter of this petition and the answer thereto then came on for hearing, and the prayers of the petitioning company were denied; from which order the company appealed to the General Term.
    
      Mr. Enoch Totten, for'petitioner, appellant.
    Mr. Linden Kent, for administrators, appellees.
   ■ Mr. Chief Justice Bingham

delivered the opinion of the Court:

The petitioner is not a party having such an interest in the estate of John Franey aS entitles it to resist the granting of letters of administration thereon. It has an interest in the question whether or not his administrators may maintain a suit against it, and that is all. In every other way it is a stranger to the estate. No one has a right to question the propriety of the issuing of letters of administration unless he shows an interest in the estate of the deceased, and it is clear that the petitioner has no such interest. It is neither creditor nor legatee; and it is not even certain that it is a debtor of the estate until the result of the suit now pending against it shall determine that fact. The question whether the plaintiffs in that suit have the legal capacity to maintain their action is one which can be fully determined in the action itself. If it should be there held that the Orphans’ Court had no jurisdiction to grant the plaintiffs’ letters of administration the action, of course, will fail, since the plaintiffs will have no legal capacity to maintain it. It is therefore unnecessary, and indeed it would be improper, for us to decide that question in this proceeding.

The ruling of the Orphans’ Court is, therefore, affirmed.  