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LOWRANCE v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY

April 24, 1958

IDA MARIE LOWRANCE, ADMINISTRATRIX OF THE ESTATE OF JOHN EDWARD LOWRANCE, DECEASED, PLAINTIFF,
v.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, A CORPORATION, DEFENDANT.



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, which provided:

    "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 ...


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