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 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 overruled, and both were thereupon dismissed by the plaintiff.
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 exceptions.
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. This Court granted certiorari.
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. Childress v. Emory, 8 Wheat, 643, 5 L. Ed. 705; Coal Co. v. Blatchford, 11 Wall. 172, 20 L. Ed. 179; Rice v. Houston, 13 Wall. 66, 20 L. Ed. 484; Amory v. Amory, 95 U.S. 186, 24 L. Ed. 428; Blake v. McKim, 103 U.S. 336, 26 L. Ed. 563; American Bible Society v. Price, 110 U.S. 61, 3 S.C.t. 440, 28 L. Ed. 70; Continental Insurance Company v. Rhoads, 119 U.S. 237, 7 S.C.t. 193, 30 L. Ed. 380. It 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, 11 L. Ed. 159; Maryland v. Baldwin, 112 U.S. 490, 5 S.C.t. 278, 28 L. Ed. 822); 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 (C. C.) 68 F. 947; Blumenthal v. Craig (C. C. A.) 81 F. 320).