The opinion of the court was delivered by: Juergens, District Judge.
This cause of action arises because of the alleged wrongful
death of the plaintiff's intestate resulting from alleged
negligent acts of the defendant.
Diversity of citizenship is alleged as giving this court
jurisdiction. The plaintiff is alleged to be a citizen and
resident of the State of Missouri, and the defendant a citizen
and resident of the State of Illinois, and the amount in
controversy fairly exceeds the sum of $3,000 exclusive of
interest and costs.
The complaint and answer have been filed. The matter is now
before the court on the plaintiff's motion to strike the second
and third defenses set up in the answer.
In the third defense the defendant alleges that the Probate
Court of the City of St. Louis, Missouri, had no jurisdiction to
grant letters of administration to the plaintiff and that her
appointment is null and void and, therefore, she cannot maintain
an action for wrongful death under the provisions of Section 2 of
Chapter 70, Illinois Revised Statutes, 1955.
In applying for letters of administration in the Probate Court
of the City of St. Louis, Missouri, the applicant, plaintiff in
this suit, asked that court issue letters of administration
pursuant to Section 30, subd. 4 of the Probate Code of the State
of Missouri, V.A.M.S. § 473.010(4) that the decedent had no
domicile in the State of Missouri and left no property therein,
but that administration is necessary in the Probate Court of the
City of St. Louis in order to protect or secure a legal right,
namely the right of the estate of the decedent to damages for the
wrongful death of the decedent and that said right of action for
damages arose under the laws of the State of Illinois and belongs
to the executor or administrator of the decedent. Letters of
administration were issued out of the Probate Court of the City
of St. Louis, Missouri.
Although the capacity of the plaintiff to bring suit is not
directly raised by the parties, yet the court is of the opinion
that in disposing of the plaintiff's motion to strike the
defendant's second and third defenses set up in its answer, it
becomes very pertinent to dispose of this issue before proceeding
to answer the plaintiff's motion.
The capacity of litigants to sue in the Federal Courts is
covered by Rule 17(b) of the Federal Rules of Civil Procedure,
28 U.S.C.A., which provides in pertinent parts as follows:
"(b) * * * 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."
In the instant case the plaintiff's right to sue in a
representative capacity is to be determined by the laws of the
State in which the District Court is held, which is, in this
case, the State of Illinois.
Letters testamentary or of administration have no
extraterritorial force and confer no authority on the
representative to administer on property outside of the State or
country of his appointment. * * * In the absence of statute, any
recognition which the representative may receive outside of the
jurisdiction of his appointment is due solely to the principle of
comity and each State or country may extend or withhold such
recognition according to its own pleasure or policy. 34 C.J.S.
Executors and Administrators § 988, p. 1233.
Under common law, an administrator may not maintain an action
outside the State of appointment, except by taking out ancillary
letters unless the State where suit is brought has a statute
permitting foreign administrators to bring suit. Diatel v.
Gleason, D.C., 22 F. Supp. 355. There is much authority cited in
the cases decided by the courts of the State of Illinois that a
foreign administrator is authorized to bring an action or actions
for rights accruing to the estate in the State of Illinois.
However, in each instance, this right was acquired by statute.
Prior to 1939 a foreign executor or administrator was granted
power to sue in the State of Illinois under and by virtue of the
provisions of Section 43 of Chapter 3, Illinois Revised Statutes,
"When any person has proved or may prove the last
will and testament of any deceased person, and taken
on him the execution of said will, or has obtained or
may obtain administration of the estate of an
intestate in any state in the United States, or in
any territory thereof, such person shall be enabled
to prosecute suits to enforce claims of the estate of
the deceased, or to sell lands to pay debts, in any
court in this state in the same manner as if letters
testamentary or of administration had been granted to
him under the provisions of the laws of this state;
Provided, that such persons shall produce a copy of
the letters testamentary or of administration,
authenticated in the manner prescribed by the laws of
congress of the United States for authenticating the
records of judicial acts in any one state, in order
to give them validity in other states; And, provided,
that said executor or administrator shall give a bond
for costs as in case of other non-residents."
In 1939 the legislature of the State of Illinois repealed the
above statute, effective January 1, 1940, and provided in lieu
thereof, Section 419 of ...