Estate of Waits

23 Cal.2d 676 (1944) Estate of FREDERICK ALBERT WAITS, Deceased. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY (a Corporation), Appellant,

v.

CHARLOTTE E. LEET, as Administratrix, etc., Respondent.

S. F. No. 16906. Supreme Court of California. In Bank.

Feb. 10, 1944. J. C. Gibson, Leo E. Sievert, H. K. Lockwood and L. W. Butterfield for Appellant.

Hildebrand, Bills & McLeod and Louis H. Brownstone for Respondent.

TRAYNOR, J.

Petitioner, The Atchison, Topeka and Santa Fe Railway Company, appeals from two orders denying motions to set aside the appointment of Charlotte E. Leet as administratrix of the estate of Ivan R. Miller and of the estate of Frederick Albert Waits. These appeals have been consolidated because they involve substantially the same facts and the same legal question. The petitions for letters of administration were filed in the Superior Court of Alameda County on August 15, 1942. The petition in the Miller estate alleged that Ivan R. Miller was a resident of Albuquerque, New Mexico, where he died, and that "it is necessary that an Administratrix be appointed in order to prosecute a claim for damages against said Atchison, Topeka and Santa Fe Railroad Co., for the death of said deceased, under the provisions of the Federal Employers' Liability Act (45 U.S.C.A., sec. 51 et seq.); that under the provisions of said act, such suit, although prosecuted in the name of the Administratrix, is for the benefit of the mother of said decedent, and that any recovery in such action belongs to the mother of said decedent as his heir at law, and is not a part of the estate of said decedent. ..." The petition also alleged that the foregoing claim is the sole estate of said decedent. The allegations of the petition in Estate of Waits were identical, except that there it appeared that Frederick Albert Waits, who died in Albuquerque, New Mexico, was a resident of Navajo County, Arizona, and that any recovery under the liability act would be for the benefit of his wife and minor son. On September 18, 1942, these petitions were granted, [678] and letters of administration were issued to Charlotte Leet. On October 3, 1942, in the Contra Costa County Superior Court, Charlotte Leet, as administratrix of the estate of Ivan R. Miller, brought suit against petitioner for negligently causing the death of Miller. On the same date she brought a similar action against petitioner for causing the death of Waits. On October 15, 1942, petitioner moved to set aside the appointment of respondent as administratrix. On January 4, 1943, both motions were denied.