1. Where, under a statute giving a right to recover for death by
wrongful act, the administrator, if one is appointed, is required
to bring the suit, is charged with responsibility for its conduct
or settlement and the distribution of its proceeds to the persons
entitled under the statute, and is liable upon his official bond
for failure to act with diligence and fidelity, he is the real
party in interest, and his citizenship, rather than that of the
beneficiaries, is looked to in determining whether the suit is
removable to the federal court. P. 284 U. S.
2. In the case of suits by administrators to recover for death
by wrongful act, the same rule as to federal jurisdiction on the
ground of diversity of citizenship applies whether the statute
provides that the amount recovered shall be for certain relatives
of the decedent or be general assets of the estate.
3. Statutes of Oklahoma make the administrator (if there be one)
the trustee of an express trust, and require suit to recover for
death by wrongful act to be brought and controlled by him.
Comp.Stats., Okla., 1921, § 824. Id.
4. In determining the right to remove to the federal court an
action brought by an administrator who was regularly appointed by a
state probate court, the appointment cannot be attacked
collaterally, nor the removal be sustained, upon the ground that
his selection was brought about by collusion between him, his
predecessor, and an attorney for the purpose of preventing removal
by reason of his citizenship. P. 284 U. S.
47 F.2d 28 reversed.
Certiorari, 283 U.S. 815, to review a judgment affirming a
judgment against the administrator in a suit to recover for a death
by wrongful act. The case is stated fully in the opinion.
Page 284 U. S. 184
MR. JUSTICE ROBERTS delivered the opinion of the Court.
Smith, a citizen and resident of Oklahoma, died as a result of
injuries alleged to have been negligently inflicted by the
respondents. His widow was appointed administratrix of his estate
by an Oklahoma probate court, and, as such, instituted an action
for damages in a district court of that state against the
respondents and certain individuals under a statute [Footnote 1
] creating a cause of action for
death by wrongful act. Such a proceeding is required to be brought
by the administrator, if there be one. The amount recovered does
not constitute assets of the estate, but is to be divided between
the widow and children.
The cause was removed to the United States District Court. The
administratrix filed a motion to remand, which was overruled. She
then dismissed the action. Subsequently, she brought a second suit
as administratrix, against the respondents and certain of their
employees, upon the same cause of action, in a district court of
Oklahoma, and a little later brought a third against the same or
some of the same defendants in another state district court. Both
were removed into the appropriate United States district courts.
Motions to remand were
Page 284 U. S. 185
overruled, and both were thereupon dismissed by the
The widow resigned as administratrix, and, upon her request, the
probate court appointed petitioner as administrator. He was and is
a resident and citizen of Louisiana, of which state the respondent
Fitzsimmons Drilling Company is also a citizen. He filed the
present action in a state court, and the respondents again removed
to the United States District Court. The petitioner having moved to
remand, the respondents answered, charging fraud and collusion on
the part of the widow, her attorney, and the petitioner, the
alleged object of which was to prevent removal by having an
administrator appointed whose citizenship was the same as that of
one of the defendants. A hearing was had at which it was proved
that the motive for the appointment was to obviate the diverse
citizenship of the parties which had justified the removal of the
earlier suits, and that petitioner had, as a favor to the widow and
her attorney, agreed to act as administrator. The district court
refused to remand. To this refusal the petitioner saved proper
It should perhaps be remarked that, in this last suit, there was
included a second cause of action for pain and suffering caused the
deceased between the date of his injury and that of his death; but
no question here arises in respect of this cause of action, and,
for present purposes, it may be disregarded.
At the trial on the merits, a demurrer to petitioner's evidence
was sustained, and judgment for respondents resulted. On appeal,
the circuit court affirmed, holding that the cause was properly
removed. [Footnote 2
Court granted certiorari.
Page 284 U. S. 186
It is settled that the federal courts have jurisdiction of suits
by and against executors and administrators if their citizenship be
diverse from that of the opposing party, although their testators
or intestates might not have been entitled to sue or been liable to
suit in those courts for want of diversity of citizenship.
8 Wheat. 643; Coal Co.
11 Wall. 172; Rice v.
13 Wall. 66; Amory v. Amory,
95 U. S. 186
Blake v. McKim, 103 U. S. 336
American Bible Society v. Price, 110 U. S.
; Continental Insurance Co. v. Rhoads,
119 U. S. 237
was, however, held by the court below that this principle is
inapplicable to a case, like the present, where the administrator
sues not for the benefit of the estate, but of certain named
beneficiaries amongst whom the amount recovered must be divided.
That court likened such a case to one where suit by the beneficiary
is required to be brought in the name of a state, county, or
official body, although such nominal plaintiff has no interest in
the result, and is not permitted to control the litigation
(McNutt v. Bland,
2 How. 9; Maryland v. Baldwin, 112 U.
); or to actions instituted by a next friend,
where it has been held that the infant is the real party in
interest, whose citizenship determines the question of diversity
(Voss v. Neineber,
68 F. 947; Blumenthal v.
81 F. 320).
The petitioner insists that, where an administrator is required
to bring the suit under a statute giving a right to recover for
death by wrongful act, and is, as here, charged with the
responsibility for the conduct or settlement of such suit and the
distribution of its proceeds to the persons entitled under the
statute, and is liable upon his official bond for failure to act
with diligence and fidelity, he is the real party in interest, and
his citizenship, rather than that of the beneficiaries, is
determinative of federal jurisdiction. This, we think, is the
correct view. The applicable statutes make the administrator the
trustee of an
Page 284 U. S. 187
express trust and require the suit to be brought and controlled
by him. [Footnote 3
Under these circumstances, the rule laid down in Mexican
Central Ry. Co. v. Eckman, 187 U. S. 429
applicable. That was an action in a federal court in Texas by a
guardian, a citizen of that state, against a Massachusetts
corporation to recover for an injury to a minor which occurred in
Mexico. A plea in abatement averred that the ward and his parents
were citizens of Illinois, and that the court was therefore without
jurisdiction. This Court examined the state law, and ascertained
that it authorized a guardian to bring suit in his own name. It was
held that his citizenship, not that of his ward, determined the
right to resort to the federal court. At page 187 U. S. 434
it was said:
"If, in the state of the forum, the general guardian has the
right to bring suit in his own name as such guardian, and does so,
he is to be treated as the party plaintiff so far as federal
jurisdiction is concerned, even though suit might have been
instituted in the name of the ward by guardian ad litem
next friend. He is liable for costs in the event of failure to
recover and for attorneys' fees to those he employs to bring the
suit, and, in the event of success, the amount recovered must be
held for disposal according to law, and if he does not pay the same
over to the parties entitled, he would be liable therefor on his
See also Detroit v. Blanchfield,
13 F.2d 13.
It has been held that the same rule applies in the case of suits
by administrators to recover for death by wrongful act, whether the
statute provides that the amount recovered be for certain relatives
of the decedent or be
Page 284 U. S. 188
general assets of the estate. Harper v. N. & W. R.
36 F. 102; Popp v. Cincinnati, H. & D. Ry.
96 F. 465; Cincinnati, H. & D. R. Co. v.
114 F. 918; Bishop v. Boston & M. R.
117 F. 771; Memphis St. Ry. Co. v. Bobo,
The court below relied on Stewart v. Baltimore & O. R.
Co., 168 U. S. 445
That authority is not in point. It dealt with the question whether
an administrator appointed in the District of Columbia could bring
suit there for a death occurring in Maryland -- the latter's
statute providing that such suit should be brought in the name of
the state. It was held that the suit might be maintained, as the
administrator would be required to make distribution of the amount
recovered in accordance with the laws of Maryland. No question of a
fraudulent attempt to avoid jurisdiction by reason of lack of
diversity of citizenship arose or was considered in the case.
The respondents assert that the present case is taken out of the
general rule by its peculiar facts, which it is alleged demonstrate
that a fraud was perpetrated to avoid federal jurisdiction. They
point out that, after the widow in her capacity as administratrix
had repeatedly failed to prevent the removal of her successive
actions, her attorney had her resign and nominate in her stead the
petitioner, who did not know her, had not known the decedent, knew
of no assets in Louisiana, and consented to be substituted for her
as a favor to her attorney; that petitioner did not sign his own
bond, did not come to the State of Oklahoma to be appointed, and
upon his appointment at once named the widow as his state agent in
Oklahoma. They concede, as they must, that as a nonresident he was
qualified under the Oklahoma law if appointed by the probate court
to act as administrator. [Footnote
Page 284 U. S. 189
His appointment was regular, and, in accordance with the
statutes and the decree of the probate court, may not be
collaterally attacked in the present proceeding. See McGehee v.
91 F. 462; American Car & Foundry Co. v.
211 F. 301. It is nevertheless insisted that, if the
petitioner's appointment was accomplished for the purpose of
avoiding diversity of citizenship and consequent removal into the
United States court, the parties to that proceeding -- the
petitioner, the widow, and her attorney -- were in a conspiracy to
defeat federal jurisdiction.
But it is clear that the motive or purpose that actuated any or
all of these parties in procuring a lawful and valid appointment is
immaterial upon the question of identity or diversity of
citizenship. To go behind the decree of the probate court would be
collaterally to attack it not for lack of jurisdiction of the
subject matter or absence of jurisdictional facts, but to inquire
into purposes and motives of the parties before that court when,
confessedly, they practiced no fraud upon it. The case falls
clearly within the authorities announcing the principle that, in a
removal proceeding, the motive of a plaintiff in joining defendants
is immaterial, provided there is in good faith a cause of action
against those joined. While those cases involve a somewhat
different situation -- that where a plaintiff joins defendants in
order to avoid federal jurisdiction -- they are in principle
applicable to the present case, where it is claimed a plaintiff was
procured for the same purpose. It has been uniformly held that,
where there is a prima facie
joint liability, averment and
proof that resident and nonresident tortfeasors are jointly sued
for the purpose of preventing removal does not amount to an
allegation that the joinder was fraudulent, and will not justify a
removal from the state court. Illinois Central R. Co. v.
Sheegog, 215 U. S. 308
Chicago, B. & Q. R. Co. v. Willard, 220 U.
; Chicago, R.I. & P.
Page 284 U. S. 190
Ry. Co. v. Schwyhart, 227 U. S. 184
facts disclosed in this record fall far short of proof of actual
fraud such as was held sufficient to justify removal in Morris
v. Gilmer, 129 U. S. 315
Lehigh Mining & Mfg. Co. v. Kelly, 160 U.
; Lake County Commissioners v. Dudley,
173 U. S. 243
Wecker v. National Enameling & Stamping Co.,
204 U. S. 176
Wilson v. Republic Iron Co., 257 U. S.
The case comes to no more than this. There being, under Oklahoma
law, a right to have a nonresident appointed administrator, the
parties in interest lawfully applied to an Oklahoma court, and
petitioner was appointed administrator, with the result that the
cause of action for the wrongful death of the decedent vested in
him. His citizenship being the same as that of one of the
defendants, there was no right of removal to the federal court, and
it is immaterial that the motive for obtaining his appointment and
qualification was that he might thus be clothed with a right to
institute a action which could not be so removed on the ground of
diversity of citizenship.
We are of opinion that the petitioner's motion to remand the
cause to the state court should have been granted. The judgment
must be reversed, and the cause remanded to the United States
District Court with directions to set aside the judgment and remand
the case to the state court.
§§ 822-825, Comp.Stat.Okla.1921.
47 F.2d 28.
Chapter 3, Art. XXVIII, §§ 824, 825, Comp.Stat.Okla.1921;
Sanders v. Chicago, R.I. & P. Ry. Co., 66 Okla. 313
169 P. 891; Aetna Casualty & Surety Co. v.
Young, 107 Okla. 151
231 P. 261. Ch. 3, Art. V, § 211, Comp.Stat.Okla.1921.
the following sections of the Complied Statutes
Oklahoma 1921; §§ 1141, 1153, 1159, 1188, 1189, ch. 5, Art III.