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October 2, 1953


The opinion of the court was delivered by: LA Buy, District Judge.

Plaintiff, administratrix, has filed her complaint to recover damages for the wrongful death of her husband, an employee of the Pullman Company, as the result of the collision of defendant's trains the City of San Francisco and the City of Los Angeles, which collision was alleged to have been caused through negligent operation of said trains by the defendant. Jurisdiction is premised on diversity of citizenship and requisite jurisdictional amount.

The defendant railroad has filed its answer admitting "its liability to respond to plaintiff's decedent's widow and next of kin for such reasonable damages as may have been sustained by them by reason of the death of plaintiff's decedent (except as said cause of action has been released by said administratrix as is alleged in defendant's additional defense); * * *". Said additional defense is set forth as follows:

    "And for a further defense defendant alleges
  that heretofore and on December 4, 1951,
  plaintiff, as administratrix, for a valuable
  consideration, executed and delivered to
  defendant an instrument in writing, a copy of
  which is attached hereto and made a part hereof,
  marked Exhibit `A', wherein and whereby she, as
  such administratrix, forever released and
  discharged defendant from all claims, demands, or
  causes of action which she as such administratrix
  had or claimed to have had against it, including
  the cause of action in the complaint herein set

Plaintiff has moved to strike those portions of the defendant's answer which set forth the existence of a release. In support of said motion plaintiff attaches photostatic copies of proceedings had in the Probate Court. From these pleadings it appears an estate was opened by plaintiff administratrix on December 4, 1951; on the same date the Probate Court entered an order approving her settlement of the death claim with the defendant railroad; on October 27, 1952 the Probate Court vacated its order approving and consenting to the settlement for the reason that a full disclosure was not made to her of the fact that the settlement fund included a sum of $6,800 which the Pullman Company was liable to pay the widow under the Workmen's Compensation Act of Illinois.

Plaintiff urges that the order of the Probate Court setting aside the order of compromise is a final order; that appeal therefrom must be made to the Circuit Court of Cook County; that the order cannot be collaterally attacked in a subsequent suit between the same parties; that the doctrine of res judicata and estoppel by verdict bars a relitigation of the issue of the validity of the release. The defendant contends the Probate Court had no jurisdiction to authorize the release or vacate the order of authorization; that the rule of the Probate Court relating to petitions for compromise of wrongful death claims is procedural in nature and cannot confer jurisdiction on the court where none exists; that the validity of the release executed by the administratrix must be determined independently of the orders of the Probate Court and is properly pleaded in the case at bar.

It is established that the personal representative has the power to make a binding settlement of a wrongful death action without the necessity of procuring an order of the Probate Court. Washington v. Louisville & N. Ry. Co., 1891, 136 Ill. 49, 56, 26 N.E. 653.

In In re Estate of Shield, 1943, 320 Ill. App. 522, 51 N.E.2d 816, the Illinois Appellate Court held that money recovered in a wrongful death action should not be treated as part of the decedent's estate although it is the duty of the personal representative to see that the money is placed in the hands of the persons lawfully entitled to them. The facts briefly in that case were that Shields died as the result of an automobile collision while operating a dairy delivery truck and left surviving him his divorced wife, a son not dependent upon him, and his mother with whom decedent lived and whom he supported. The Industrial Commission approved a settlement of the mother's claim pursuant to the Workmen's Compensation Act. The son was appointed administrator of his father's estate and compromised the cause of action for the death of his father giving a full release. The Probate Court approved his final account and report and the estate was closed. Thereafter, the insurance carrier for the deceased's employer filed a petition to set aside the order approving the final account and report, asserting a lien upon the money received from the wrongful death claim, and requesting the administrator be directed to pay said sum to the petitioner. The administrator moved to dismiss said petition. The court said, 320 Ill. App. at page 533, 51 N.E.2d at page 821:

    "As a further point the administrator urges
  that the Probate Court, as a court of limited
  jurisdiction, does not have jurisdiction of the
  subject matter of plaintiff's petition. That
  court appointed the administrator. While the
  record is silent, the usual procedure in cases of
  compromise is for the administrator to ask for
  the approval of the Probate Court. We recognize
  that the money so received by the administrator
  cannot be treated as part of the estate of the
  deceased and the creditors are excluded from any
  interest therein. The administrator declares that
  the disposition of the proceeds of the settlement
  of the death claim is neither a probate matter
  nor is it involved in the settlement of the
  estate of the deceased employee, because such
  proceeds are not part of the estate. Apparently,
  the administrator recognized that the Probate
  Court had jurisdiction to approve his account and
  to discharge him. We are of the opinion that the
  Probate Court had jurisdiction over the money
  which was held by the administrator as a result
  of the compromise. When he sought to distribute
  it in a manner contrary to the provisions of the
  Workmen's Compensation Act, it cannot be doubted
  that the insurance carrier had a right to appear
  and object to such distribution. * * *"

In Miller v. Pinkney, 1911, 164 Ill. App. 576, decedent was killed by an electric wire of the Peoria Gas and Electric Company and left surviving him three brothers and five sisters. A public administrator was appointed who then brought suit against the electric company. Said suit was settled by the attorneys with the consent of one of the heirs, which settlement was without the knowledge or consent of either the administrator or the Probate Court. The public administrator was unable to secure his discharge as administrator and had not received any of the proceeds of the settlement nor any receipts or vouchers or any accounting from the parties other than a statement from counsel that the money had been turned over to the next of kin. The court held the money received in settlement must be turned over to the administrator and payment thereof must be made by him to the next of kin by proper order of the Probate Court. In the course of its opinion, the court said, 164 Ill. App. at pages 578-579:

    "* * * The evidence shows that the only next of
  kin of the deceased were his brothers and
  sisters. They are each entitled to an equal share
  in the amount recovered after the payment of
  costs and expenses. If the brother who died
  subsequent to the bringing of the suit, died
  unmarried and intestate and left no children or
  debts then his share would descend to his
  brothers and sisters. The appellant as
  administrator gave bond for the performance of
  his duty. He as such administrator was the only
  party in whose name the suit could be maintained
  and had the right to control the disposition of
  the suit. Washington v. Louisville & N. Ry. Co.,
  136 Ill. 49, 26 N.E. 653. Where pending the suit
  a settlement was made it is the duty of the
  administrator to see that the proceeds of such
  settlement are placed in the hands of the parties
  who are lawfully entitled to them. Perry v.
  Carmichael, 95 Ill. 519. It was the province of
  the Probate Court to apportion the amount
  recovered amongst the parties entitled thereto on
  proper notice to the parties interested.
  Baltimore & O.S.W. Ry. Co. v. Then, 159 Ill. 535,
  42 N.E. 971."
  It appears, therefore, the jurisdiction of the Probate Court extends to the money which comes into the hands of the personal representative only for the purpose of assuring distribution thereof in accordance with the law. Thus, an administrator should distribute only after an adjudication by the Probate Court as to the proper recipients of such money. It is for his protection that he seeks an order from the Probate Court. Therefore, while the proceeds of a wrongful death action are within the jurisdiction of the Probate Court for the sole purpose of proper distribution, jurisdiction of the subject matter of a wrongful death claim or settlement thereof are not and such jurisdiction cannot be conferred merely because the parties failed to deny that jurisdiction existed.

The court is of the opinion the probate court has no jurisdiction, other than for distribution of the proceeds, over the right of action for wrongful death. Consequently, an order approving the compounding of such a claim and a subsequent order setting it aside is not binding upon this court. The motion of the plaintiff to strike the answer of the defendant is therefore overruled.

An order has this day been entered in ...

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