Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.
Ralph D. Schellenberger, a resident and citizen of the State of Texas, died July 1, 1945, and left surviving him as his heirs at law and next of kin Billie P. Schellenberger, his widow, and a minor child, both of whom have since continuously been residents of the State of Texas. Letters of administration were issued from an appropriate court of Texas, naming the widow as administratrix of his estate. As such administratrix, on October 14, 1948, she commenced, in the District Court for the Northern District of Illinois, a suit for an accounting and other relief against the defendant James A. Schellenberger, a brother of the decedent, the two of whom had been engaged as partners in a business in Chicago. It was alleged that plaintiff was a resident of the State of Texas and defendant of the State of Illinois and that the requisite amount was involved to confer diversity jurisdiction.
Defendant answered the complaint and set up what in effect was a plea in bar to the relief sought. In the meantime, plaintiff was married to one Jones and her name as plaintiff-administratrix was changed accordingly. On October 31, 1950, the court rendered a decision adverse to defendant's contention and directed that an accounting be rendered. In the meantime and upon petition of the defendant, one Thomas J. Phelan was appointed administrator of the decedent's estate by the Probate Court of Cook County, Illinois. On December 19, 1950, the Illinois administrator filed his appearance and moved that he be substituted as party-plaintiff. Before this motion was acted upon, Phelan resigned and the LaSalle National Bank was appointed as administrator de bonis non. The said bank filed a similar motion for leave to be substituted, but before the court acted thereon it resigned, and there was appointed by the same court the instant appellant, Noah J. LaReau, as the second administrator de bonis non, who renewed the motion for substitution. The matter was referred to a Master-in-Chancery who, after a hearing, rendered a report and recommended that the motion for substitution be denied. The appellant objected to the report of the Master, which objections were, on September 20, 1951, overruled by the court, and a decree was entered denying appellant's request to be substituted as party-plaintiff. From this order the appeal comes to this court.
The sole question presented on this appeal is whether the court erred under the circumstances in refusing to allow the substitution of the Illinois administrator as party-plaintiff for and in place of the Texas administratrix.
Appellant contends that the court had no discretion in the matter but was under a mandatory duty to allow such substitution, and relies entirely upon Rule 17(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. entitled "Capacity to Sue or Be Sued", in connection with Sec. 419, Chap. 3 (Ill.Rev.Stats.1949), entitled "Right to Sue."
Rule 17(b) provides, so far as here material:
"The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of his domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held * * *."
Obviously, plaintiff having sued in her representative capacity comes within the category of "other cases."
The Illinois statute relied upon as "the law of the state" evidently makes provision for two situations, (1) where no letters of administration have been issued in the State at the time an action is commenced by a foreign administrator, and (2) where a local administrator is appointed subsequent to the commencement of the action. As to the first situation, the statute provides:
"When no letters are issued in this state upon the estate of a non-resident decedent or ward an executor, administrator, guardian, or conservator to whom letters are issued on the estate by a court of competent jurisdiction of any state or territory of the United States may sue in this state in any case in which a resident executor, administrator, guardian, or conservator may sue."
As to the second situation, the statute, so far as here material, provides:
"If after the proceedings are commenced letters are issued on the estate in this state, upon motion the resident executor, administrator, guardian, or conservator shall be substituted for the non-resident executor, administrator, guardian, or conservator * * *."
Thus, it is plain the provision as to the first situation relates only to the capacity to sue, and as to the second situation to the right of substitution by a local administrator appointed subsequent to the commencement of the action. It should be kept in mind that Rule 17(b) relates solely to "Capacity to Sue or Be Sued", and makes the law of the State controlling only in that ...