
    ADMINISTRATION OF ESTATES OF FOREIGNERS.
    Common Pleas Court of Crawford County.
    The Bucyrus Steel Castings Co. v. Dr. Gerza Farkas, Administrator.
    Decided, January Term, 1914.
    
      Wrongful Death of a Foreigner — Authority of the Prohate Oourt to Appoint an Administrator — Ohose of Action in Favor of Wife Part of Decedent’s Estate.
    
    1. The probate court has no jurisdiction under Section 10604 of the General -Code to appoint an administrator for the estate of a decedent not “an inhabitant of this state” at the time of his death.
    2. But, under Section 8, Article IV, of the Constitution of Ohio, the probate court of this .county has jurisdiction of the subject-matter of the administration of decedent’s estate, and having such jurisdiction, may, by virtue of the provisions of the treaty of the United States with Austria-Hungary by force of the second clause of Article VI of the’ Constitution of the United States, without any statutory provision therefor, appoint an administrator of the estate of a subject of that empire, not “an inhabitant of this state,” but who died here leaving an estate in this county.
    3. The chose in action in favor of the wife and children for wrongful death, .under Sections 10770 and 10772 of the General Code, is a part of the decedent’s estate, though in a limited or qualified sense, and warrants the appointment of an administrator for it whether he left any general estate or not.
    4. Administration is a proceeding in rem, and whether this chose ' in action is a part of the estate or not, it is a trust which the statute provides shall be administered through an administrator appointed by the court.
    
      Finley & Gallinger, for plaintiff in error.
    
      Leuthold & McCarron, contra.
   Duncan, J.

This case is here on error from the probate conrt of this county.

. On December 6th, 1910, that court appointed one Dr. Gerza Farkas, administrator of the estate of one Andrew Frat, killed by accident September 14th, 1910, while in the employ- of the Bucyrus Steel Castings Company in this county. The said Frat was an alien with wife, and child in his native land, of Austria-Hungary, whom he was supporting. He came with no intention of making this his permanent home. He was here to obtain work. He had worked in Cleveland and Columbus, and for a little over three months just previous to his death, in Bucyrus. He was under no fixed term of employment, sent his wages home and always had the intention of returning to his family. He died intestate and left no estate except a claim against said company for wrongful death.

The appointment of Dr. Farkas was made upon the suggestion of Hon. Ernest Ludwig, Consul for Austria-Hungary, located at Cleveland, Ohio.

On December —, 1910, the said administrator commenced an action in this court against said company to recover damages in the sum of $10,000 for the alleged wrongful death of said decedent,. under favor of Sections 10770 and. 10772 of the General Code..

• On November 29th, 1913, the said company filed a petition in the probate court to vacate the said appointment upon the ground that the said Frat was not an “inhabitant” of Ohio, and for .the further reason that he left no estate here to be administered. The question is, therefore,. one of jurisdiction.

I agree with plaintiff in error that said Frat was not an “inhabitant” of Ohio at the time of his death so as to authorize the probate court of this county to appoint an administrator for his estate under Section 3 0604 of the General Code. That section reads as follows:

“Upon the death'of an inhabitant of this state, letters testamentary or letters of administration on his estate, shall be granted by the probate court of the county in which he was an inhabitant or resident at the time he died.”

An “inhabitant” is “one who dwells- or resides permanently in a place, as distinguished from a transient lodger or visitor; one who has a legal settlement in a town, city, or parish; a permanent resident” (Webster). It implies a more fixed and permanent abode than “resident”; frequently imports many privileges and duties to which a mere' resident could not lay claim or be subject (Board of Supervisors v. Davenport, 40 Ill., 197). One domiciled; one who has his domicile or fixed residence in a place, in opposition to a mere “sojourner.” Holmes v. Oregon & C. Ry. Co., 5 Fed., 523, 527; Borland v. Boston, 132 Mass., 89, 98; Kennedy v. Ryall, 67 N. Y., 379, 386; State v. Boyd, 31 Neb., 682 [48 N. W. (Neb.), 739, 752]; Boardman v. Bickford (Vt.), 2 Aikens, 345, 348; In re Town of Hecktor, 24 N. Y. Supp., 475, 476; Merritt’s Heirs v. Morrissitt, 76 Ala., 433, 437.

But it is not necessary that said Frat should have been ,an “inhabitant” of Ohio to authorize the probate court to appoint an administrator for his estate. Section 8 of Article IV of the Constitution of Ohio provides that “the probate court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the .accounts of executors, administrators and guardians,” etc., and hence, has jurisdiction of the subject-matter of decedents’ estates irrespective of statutory enactment.

Article XI of the treaty of commerce of August 27th, 1829, between the United States of America and Austria-Hungary, reads as follows:

“The citizens or subjects of each party shall have power to dispose of their personal goods within the jurisdiction of 'the other, by testament, donation or otherwise; and their representatives being citizens or subjects of the other party, shall succeed to their personal goods, whether by testament or ab inféstalo, and may take possession thereof, either by themselves or by others acting for them, and dispose of the same at their will, ‘paying such dues, taxes or charges only, as the inhabitants of the country, wherein the said goods are, shall be subject to pay in like cases.”

Article XV of said treaty reads as follows:

“ Consnls-general, consuls, vice-consuls and consular-agents, also consular-pupils, chancellors and consular officers shall enjoy in the two countries all the liberties, prerogatives, immunities and privileges granted to functionaries of the same class of the most favored nation.”

This “most favored nation” clause is now common in treaties of commercial nature. The clause not only binds the nation to grant to its co-signers all the privileges similarly granted to all other nations, but such also as shall be granted to them under subsequent treaties. International Law, Wilson & Tucker, 5th Ed., p. 216.

Under this “most favored nation” clause, therefore, Article IX of the treaty of 1853 between the United States and the Argentine Republic, the consul of Austria-TIungary is entitled to exercise -and enjoy all the liberties, prerogatives, immunities and privileges granted therein to the consul in this country of the Argentine Republic. It reads .as follows:

“If any citizen of either of the two contracting parties shall die without will or testament, in any of the territories of the other, the consul-general or consul of the nation to which the deceased belonged, or the representative of such consul-general or consul, in his absence, shall have the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the -country, for the benefit.of the creditors and legal heirs.”

And under Article XXVII of the treaty of April 20th, 1903, with Spain,- this right is extended the foreign consul to represent “the absent, unknown or minor heirs, next of kin, or legal representatives of the citizens or subjects” of his country, dying within his jurisdiction.

The effect to be given to such treaty is provided by the second clause of Article VI of the Constitution of the United States'as follows:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land; and the judges in every state shall ’ be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.”

And the Supreme Court of Ohio in State v. Vanderpool, 39 O. S., 273, 276, in speaking of this provision of the constitution in connection with an extradition treaty between this country and Great Britain has this to say:

“This treaty is therefore the law of the land, and the judges of every state are as much bound thereby as they are by the Constitution and laws of the Federal or State govérnments. It is therefore the imperative duty of the judicial tribunals of Ohio to take cognizance of the rights of persons arising under a treaty to the same extent ,as if they arose under a statute of the state itself. ’ ’

!

Coming now to a matter in closer relation to the present case it is held in McVoy v. Wyman, 191 Mass., 276 (77 N. E., 379), that the existing treaties between this country and Russia are the supreme law of the land, and that the petition of the representative of that empire for the commonwealth of Massachusetts \o be appointed administrator of the estate of a Russian subject who died here, must be granted as against the petition of the public administrator for the same appointment. That is to say, that when anything in the Constitution or laws of a state are in conflict with a treaty, the latter must prevail. See also Tellefren v. Fee, 168 Mass., 188 (46 N. E., 562).

So that, giving effect to this provision of the Constitution of the United States and the treaty of this government with Austria-Hungary, it became the duty of the probate court to appoint an administrator for the estate of said Frat upon the suggestion of the consul of his government to the end that his representatives might succeed to his estate, regardless of ¡any provision of the statute in that behalf.

Thus far I have proceeded upon the theory that there was an estate of the decedent to be administered..

In one sense, if the decedent left no estate to be administered, there would be no reason for the appointment of an administrator. This leads us to inquire the nature of a claim for wrongful death. Section 10770 of the General Code creating the liability reads as follows:.

‘ ‘ When the death of .a person is caused by wrongful act, neglect or default, such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued, in every such case the corporation which or the person who, would have been liable if death had not ensued * * shall be liable to an action for damages. ”

The right of action is provided for by Section 10772 as follows:

"'Such action shall be for the exclusive benefit of the wife, or husband and children, or if there be neither of them, then of the parents and next of kin of the person whose death was so caused. It must be brought in the name of the personal representative of the deceased person; and the jury may give such -damages not exceeding ten thousand dollars; as they think proportioned to the pecuniary injury resulting from such death, to the persons respectively for whose benefit the action is brought.”

Under like sections of the statute it was held in Steel, Admr., v. Kurtz, 28 O. S., 191, that the money thus realized is not to be treated as part of the general estate of the decedent. That the administrator is a trustee of the fund and must distribute such monéy to those to whom the general personal estate would descend according to the statutes of descent and distribution. And in Wolf, Admr., v. L. E. & W. Ry. Co:, 55 O. S., 517, it was held that the administrator is a mere nominal party, having no interest in the case for himself or the estate he represents, but that such actions are for the exclusive benefit of the beneficiaries named in the statute.

By Section 10773, General Code, it is provided as follows:

"Such action must be commenced within two years after the death of such deceased person. Such personal representative, if he was appointed in this state, with the consent of the court making such appointment, at any time, before or after the commencement of a suit may settle with the defendant the amount to be paid. The amount received by such personal representative, whether by settlement or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment in such manner as will be fair and equitable, having reference to the age and condition of such beneficiaries and the laws of descent and distribution of personal estates left by persons dying intestate.”

In B. & O. R. R. Co. v. Haltman, Admr., 1 C.O. (N.S.), 17, it is held that a settlement by the widow and administratrix of a decedent, killed by wrongful act, is void as against the minor children of the deceased, where it does not appear that the probate court consented to and approved the settlement.

While it may be said that this chose in action is no part of the general estate of the decedent, it is his estate in a limited or qualified sense. It arises from a personal injury to him for which he would have had a cause of action had he lived, and the statute simply revives it in favor of his dependents — wife and children — thus excluding his creditors. In this respect the estate differs from the general estate, but in no other. The suit must be brought by the administrator; he " not settle it without the consent of the probate court, and in the ¿nee of agreement among the beneficiaries, he has no authority to make distribution of the proceeds of the action.

In support of this holding, I cite Hutchins v. St. Paul, M. & M. Ry. Co., 44 Minn., 5, 6 (46 N. W., 79, 80), construing like statutes of that state where the court say:

“Administration is a proceeding in rem, the res being the estate of the deceased; and we apprehend that, whether the deceased was a resident or non-resident, the existence of assets is essential to administration, for it is the estate, and not the expired breath, of the deceased upon which administration operates. Hence it would seem to follow, from 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. ease of the death of any person, whether a resident of the state, or only temporarily sojourning in it, at the time of his receiving the injuries causing his death. Thé 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.”

In Missouri Pac. R. R. Co. v. Bradley, 51 Neb., 596, 7 (71 N. W., 283, 4), the court reviews the holdings on the subject, approves the reasoning of the Minnesota case and says:

“The weight of the adjudications is in favor of the right to have an administrator appointed for the sole purpose of prosecuting an action arising under Lord Campbell’s act, even though there exist no other necessity for such an appointment, and the deceased was not domiciled in this state, and left no property therein, and that the county court of the county where the injury was received and the deceased dies may properly entertain such jurisdiction.”

See also Findlay v. Railway Co., 64 N. W. (Mich), 732; Railway Co. v. Lewis, 40 N. W. (Neb), 401; Railroad Co. v. Andrews, 36 Conn., 213; Morris v. Railroad Co., 23 N. W. (Ia.), 143; Pinney v. McGregory, 102 Mass., 186; Brown’s Admr., v. Railroad Co., 30 S. W. (Ky.), 639.

But suppose this right of action can not be said to belong to the estate of the decedent and that the administrator is a mere trustee and has no interest in the claim, still that does not deprive the probate court of the power to appoint that trustee. The statute provides for it. And if the appointment is’ to be denied where the decedent was not an inhabitant simply because there is no general estate to administer, it can not be made where the decedent was an inhabitant. Certainly that was not the intention of the law-making power. Such interpretation would lead to absurd consequences and should be avoided. If there is no general estate to administer he may not be a general administrator in that sense, but he would be a trustee, at least, under the name “administrator” to prosecute the action. A contrary holding would defeat half the appointments made where suit is brought for wrongful death.

The case of P., C., C. & St. L. Ry. Co. v. Naylor, Admr., 73 O. S., 115, indicates the public policy of such legislation and interprets these sections of the statute in such way as to leave no doubt as to the right of the probate court to appoint an administrator to bring such action in behalf of the wife and children of an alien decedent. In that case it was alleged as a defense “that the plaintiff ought not to have or maintain this action for the reason that the defendant is and was on the 6th day of June, 1902, a citizen and resident of the state of Ohio; that the said Basilio Marino was at the time of his death a native and citizen.of Italy; that the wife and children of the deceased for whose benefit this action has been brought, are nonresident aliens of the state of Ohio and of the United States of America; that as such non-resident aliens they-'are not authorized by the statutes of the state of Ohio to recover damages through a legal representative for the death of said Basilio Marino.” This defense was demurred to. The Supreme Court in affirming the circuit court in sustaining the demurrer points out that the words “when the death of a person is caused by wrongful act,” etc., as used in the statute, does not mean in certain eases, but in all eases. That the words “such action shall be for the exclusive benefit of the wife” etc., are general, include all cases and mean that the wife and children are not limited to those who may reside at the time in this country. And that a non-resident foreigner coming into this jurisdiction and asking redress for an injury done to him in this state and contrary to the laws of this state, is entitled to be heard in. the same manner as a resident foreigner or a citizen. And I add to this, they would be denied that right if the probate court had no jurisdiction to appoint an administrator to prosecute the action.

There is .also a serious question as to whether.said company has any standing in court to make the motion to vacate the said appointment, and indeed there is very good authority for holding that it has not (Railroad Co. v. Gould, 64 Ia., 343 [20 N. W., 464]; White v. Spaulding, 50 Mich., 22 [14 N. W., 684] ; Missouri Pac. R. Co. v. Bradley, 51 Neb., 59.6 [71 N. W., 283], but finding more satisfactory grounds upon which to base the decision, I have not gone.into that matter.

Holding these views, the probate court will be affirmed. Judgment against plaintiff in error for costs, and case remanded for execution.  