The opinion
Mr. Chiee Justice McIver,_
dissenting.
While I concur fully with Mr. Justice Jones in some of the views which he presents, I cannot agree with him in the conclusion which he reaches. The fundamental inquiry is whether the probate court for Florence County had any jurisdiction to grant letters of administration upon the personal estate of Jas. M. Mayo, deceased, to J. W. McCown. The‘present 'Constitution, in sec. 19, of art. V., provides (passing by the county of Charleston, for which special provisions are made,) that in all other counties of the State, jurisdiction, in all matters testamentary and of administration, shall be vested as the General Assembly may provide; and the provision made by the General Assembly, as may be found by reference to secs. 2023 and 2001, is that in case any person shall die intestate, the judge of probate of the county where the intestate resided, or if he had no place of residence in the State, then of the county where the greater part of the estate of such intestate may be, “shall grant administration of the goods, chattels, rights and credits of such deceased person,” and the statute proceeds to indicate the persons to whom such grant shall be committed, as to which no question is raised. This is the only provision, so far as I am informed', which has been made by the General Assembly, vesting jurisdiction in any Court or in any person to grant administration on the estate of an intestate. And, under the express terms of this provision, it cannot be disputed that the only person invested with jurisdiction to make such grant is the judge of probate of the county where the deceased resided, or if he had no place of residence in this State, then the judge of probate of the county where the greater part of his, the intestate’s, estate may be. The practical result would be that unless the
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intestate, Mayo, resided in the county of Florence, or had an estate in that county, the judge of probate of such county would have no jurisdiction to grant letters of administration to McCown, as he undertook to do. So that the next inquiry, in logical order, would be whether it has been made to appear, either that Mayo was a resident of Florence County or that he left an estate therein. It is contended, however, by the counsel for respondent, that the appellant is shut off from any general inquiry as to those two facts, and that we are confined, by secs. 49 and 57 of the Code, to the inquiry whether it appears on the record (meaning the record in the probate court granting the letters of administration to McCown) that there was a want of jurisdiction. So far as sec. 57 of the Code is concerned', it is very clear, from the decision of this Court in
Witte
v.
Clark,
17 S. C., 313, that it does not shut off inquiry; and it seems to me that, upon the same principle upon which that decision was rested, we should 'hold that sec. 49 cannot have the effect claimed for it. The principle upon which that decision was rested, is that, as no person who is not a party to a proceeding is not bound by any judgment rendered therein, such person could not appeal from such judgment; for if he undertook to do so, the appellate tribunal could very well say to him, you have no standing in this Court, as your legal rights have not been effected by the judgment which you are seeking to reverse. For this reason it was there held that the language used' in sec. 57 must be regarded as referring only to persons who were parties to the proceedings. I see no good reason why the same may not be said in reference to the language used in sec. 49, for it manifestly presupposes that there was a right of appeal. Again, .it is contended by counsel for respondent that the present case, being a proceeding in
rem
and not. a proceeding
in personam
as was the case in
Witte
v.
Clark, supra,
and hence that decision does not apply here, I suppose that there could be no proceeding in
rem
unless there was a
res;
and the
res
in a case like this, would, as I understand it, be the estate of the intestate; and if there is no
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estate of the intestate, within the jurisdiction of the Court, as I shall hereafter undertake to show, then there would be no
res,
and consequently no proceeding in
rem.
i
But even assuming, for the sake of argument, that we are confined to the inquiry whether the want of jurisdiction appears on the record, it seems to me that the record of the proceeding in the court of probate, fairly and1 properly construed, does show on its face a lack of jurisdiction. That record does not consist only of the letters of administration, from which certain stereotyped words, which are sometimes used merely as
descriptio personae,
have been extracted for the purpose of showing that Mayo was a resident of Florence County at the time of his death— a statement that every one knew was not true. Those words, I must suppose, were in the printed form used for letters of administration, and were inadvertently allowed1 to remain there; for I cannot suppose that such a high-minded and honorable man as the judge of probate for the county of Florence is known to be, would, intentionally, make a misstatement of a fact. It will be noted that the judge of probate, in making his decree in this case, makes no allusion to the recital in the letters of administration, that the deceased, Mayo, was
“late of Florence County,”
but undertakes to vindicate his jurisdiction to grant such letters by the fact that, upon the death of Mayo, by virtue of the statute, a right of action would accrue to his administrator, under the circumstances stated in this case; and this he thought was sufficient to invest him with jurisdiction to grant administration upon the estate of the deceased. I do not mean to say that he -bases his conclusion that the application to revoke the letters of administration should be refused,
solely
upon that ground; all I mean to say is that he claims to have acquired jurisdiction only in that way. But the petition for letters of administration is just as much a part of the record as the letters granted in response to such petition. Indeed, as it seems to me, that petition is the proper source from which to obtain the facts necessary to confer jurisdiction. When
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a suitor invokes the jurisdiction of any judicial tribunal, he must take such a case as shows that the tribunal whose jurisdiction he invokes has jurisdiction of the case thus made. Especially is this so as to the probate court, which, while not a court of
inferior
jurisdiction, is a court of
limited
jurisdiction; and1 hence when the jurisdiction of that tribunal is invoked, the suitor must show, by the case which he makes, that it is a case falling within the limits of the jurisdiction prescribed by law for such tribunal. Now, in a case of this kind, the petition for letters of administration is the mode by which the petitioner makes his case, of which the court of probate is asked to take jurisdiction. Looking to the petition for letters of administration which is set out in the “Case,” it is quite certain that it does not state, either the fact that the deceased was a resident of the county of Florence or that the greater part of his estate was in that county, one of which was necessary to invest the judge of probate of Florence County with jurisdiction of the case. On the contrary, it seems to me that the allegations of the petition, fairly and properly constructed, show that the deceased was not a resident of Florence County, but was a resident of the State of Florida; and that he left no personal property in Florence County. First, as to the matter of residence; in paragraph one of the petition the allegation is that the deceased departed this life intestate, in the city and county o'f Florence, leaving surviving him, as his only heirs at law and distributees, his widow and his children therein named, and that all of said heirs at law and distributees were residents of the State of Florida. Now, in the absence of any allegation to the contrary (and there is none in the petition), the only inference that can properly be drawn from the allegation in the petition is, that the deceased was a resident of the State of Florida; for the presumption is that a husband resides with his wife — the domicile of the wife is that of the husband. Next, as to the location of the estate of the bus-band — the allegation in the second paragraph of the petition is distinct: “that at the time of his death, the said James M.
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Mayo left no personal property within the jurisdiction of this Court”- — meaning, of course, the probate court of the county of Florence. It is true, that the petition, in this paragraph, proceeds to allege certain facts, which he claims would, if Mayo’s injuries had not proved fatal, have given him a cause of action; and that, under the statute, a cause of action survives for the benefit of his widow and children, which can only be prosecuted by the administrator of the estate of the said Mayo. It will be observed that there- is no inconsistency between these additional allegations and the distinct allegation made in the outset of the petition — -that Mayo died leaving no property in the-county of Florence; for these allegations do not assert that this right of action therein referred to constituted any part of the estate of said Mayo, but rather implies the contrary.
It seems to me, therefore, that the record of the proceedings in the probate court under which the letters of administration were granted, looked at as a whole and fairly considered', do show on their face a want of jurisdiction on the part of the judge of probate for Florence 'County to grant the letters of administration.
But there is another view of this matter which, it seems to me, deserves consideration. It appears from the “Case” as prepared for argument here that the Northeastern Railroad Co., the appellant herein, filed a petition in the court of pro-pate for Florence County, alleging amongst other things, which I do not set out 'here, as I think a copy of such petition should be included in the report of the case, that the judge of probate for said county had, upon the
ex parte
application of McCown (of which application the appellant had no notice), unsupported by any evidence tending to show that the said Mayo was a resident of the county, or that he had any property therein, granted letters -of administration upon the personal estate of the said Mayo to the said McCown; that the s-aid Mayo at the time of his death was not a resident of this State, but was at the time of his death, and long prior thereto, a resident of the State of Florida; and that the
*422
said Mayo died leaving no property or estate of any description whatsoever within the limits of. this State, either at the time of his death or at the time of the granting of letters of administration or since. Wherefore, the petitioner prays that the grant of administration to the said McCown be revoked and cancelled. Upon the filing of this petition the judge of probate granted an order requiring the said McCown to show cause why the letters of administration previously granted him should not be revoked and cancelled. In obedience to such order the said McCown made his return, in which he uses the following language: “Not admitting any of the allegations of the petition upon which the said order is based, which do not appear on the face of the record of the said proceedings in this court resulting in the judgment appointing him such administrator, 'but reserving the right to answer the same, respectfully shows to the Court that the said petition should be dismissed on the following grounds and then proceeds to state five grounds, in which not a single
fact
stated' in the petition was denied or in any way questioned1; but these grounds raise nothing but legal questions. The return of the administrator must, therefore, be regarded as nothing more than a demurrer to the petition for revocation. It was so treated by the judge of probate and by the Circuit Judge, and there was no exception on that point. Hence the question cannot be raised here. But even if the question could be raised1, I think that the view which both of those officials took was correct. The word's, “not admitting any of the allegations of the petition,” &c., which I have quoted from the return, may be regarded1 by some as an ingenious mode of avoiding the necessity of denying allegation's of fact, which are known to be true; but there is no system of pleading with which I am acquainted which would recognize that mode as sufficient to raise an issue of fact. Indeed, counsel who drew this return evidently recognized the correctness of my view, as they took care to reserve the right to answer the allegations of the petition — of which reserved right, however, the administrator has never availed
*423
himself. So that, as the case comes before us, all the allegations of fact in the petition must be regarded as admitted by the demurrer, and the only questions presented by this appeal are the legal questions raised by the demurrer. There are only two of these questions which I deem it necessary to consider, ist. Whether the right of action conferred by the provisions of Ford Campbell’s act can be regarded as such a part of the estate of the intestate, Mayo, as would invest the judge of probate of Florence County with jurisdiction to grant letters of administration upon the estate of said intestate? 2d. Whether the provisions of Lord Campbell’s act, as incorporated in sections 2315-2318 of Rev. Stat. of 1893, can be regarded as a sufficient amendment of our statutes, conferring jurisdiction on the judge of probate to grant administration upon the estates of intes-tates to warrant the appointment of an administrator of a deceased non-resident, who dies leaving no property within the limits of this State.
2
In considering the first of these questions, the inquiry naturally presents itself, whether the right of action conferred by this special statute, in a case like this, is a new right of action, or merely a continuance or revival of the right of action which the deceased would have had if his injuries had not been fatal. This inquiry is so conclusively disposed of by Mr. Justice Jones in his opinion, that I do not deem it necessary to add anything (even if I could) to what he has so well said upon this point. But even if the right of action conferred 'by the statute is not a mere revival or continuance of the right of action which the deceased would have had if he had not died, but is an entirely new right of action, the question still remains, whether such new right of action can in any sense be regarded as a part of the assets or estate of the deceased. Now this new right of action owes its origin exclusively to the statute. It never existed in this State until our act was passed in 1859 — 12 Stat., 825. It is, therefore, a creature of statute, and in determining its nature and effect we must look to the terms
*424
of the statute, read in the light of the provisions of the Constitution, which controls the legislature, the Courts and the people, in order to ascertain the intention of the legislature in> bringing into existence this new right which had never previously existed. Looking into the terms of this statute, we do not find a single word or phrase which even implies an intention on the part of the legislature to make this right, or its fruits, any part of the assets of the estate of the decedent. On the contrary, we do find there language which plainly implies that the legislature intended that the same should
not
be any part of the assets of the estate of the decedent. In that portion of sec. 2316, which was originally taken from the second section of the act of 1859, prescribing how the amount recovered should be divided) amongst the beneficiaries, these words are used: “shall be divided amongst the before-mentioned parties in such shares as they would have been entitled to if the deceased had died intestate,
and the amount recovered had been personal assets of his or her estate.”
These words which I have italicized necessarily imply that the legislature did not intend that the amount recovered should be the assets of the estate of the decedent, but should he distributed among the beneficiaries mentioned in the same shares as if
they had been
personal assets of his estate. It was the same thing as saying that, although the amount recovered is no part of the personal assets of the estate of the decedent, yet they shall be divided among the beneficiaries in such shares as they would1 have been entitled to if. the same had ¡been such personal assets. The only act which I have been able to find amending this section (act of 1898, 22 Stat., 788,) not only makes no change in this respect, but on the contrary uses precisely the same words which I 'have italicized above, and only makes certain changes in the persons mentioned as beneficiaries. Besides, to suppose that the legislature intended to make this right of action, or the fruits thereof, a part of the assets of the estate of a decedent, and at the same time to deny to the creditors of such decedents the right to have such assets
*425
applied to the payment of their debts, as both in law and good morals they are entitled to, 'would be to impute to the legislature an intention to lend its aid to the perpetration of a fraud upon such creditors — and this no Court ought to do. It seems to me clear, therefore, that the right of action conferred by the statute, or the fruits thereof (as the one necessarily follows the other), can in no sense be regarded as any part of the assets of the estate of a decedent. These views have the support of high authority. See
Stewart
v.
Balt. & Ohio R. R. Co.,
168 U. S., at page 449;
Martin
v.
Balt. & Ohio R. R. Co.,
151 U. S., at page 695-6-8; Am. & Eng. Ency. of Law, 2 ed., at page 859.
The second question above stated will next be briefly considered. I do not see how it is possible to regard the provisions of Lord.Campbell’s act as incorporated in Rev. Stat. of 1893, as an amendment to any of our statutory provisions in regard to the appointment of administrators. The two subjects are entirely foreign to each other, and there is no hint or suggestion in any of our statutory provisions that the one was intended as an amendment to the other. On the contrary, secs. 2001 and 2023 of the Rev. Stat. of 1893, hereinabove referred to, are contained in the same volume which contains the sections of Lord'Campbell’s act, and I am unable to discover any indication whatever in these, or any other sections, oí an intention to extend the limits of the jurisdiction conferred upon the judge of probate by secs. 2001 and 2023, or in any way to modify or qualify the same.
It is contended, however, that the result of the view which I have taken would be to deny to the beneficiaries mentioned in the statute, the benefit of the statute whenever a person is killed in this State by the wrongful act of another, who is not a resident of this State, and who dies leaving no estate within this State. But it seems to me that there are two conclusive answers to this contention. 1st. That the heirs at law of such a person would be in the same position in which every one was prior to the passage of the act of-1859; and if the legislature, in passing this act and the several acts
*426
amendatory thereof, have omitted to make such provision as would enable the heirs at law of a non-resident, who is killed in this State by the wrongful act of another, and dies leaving no estate within the limits of this State, to avail themselves of the benefit of such legislation, the Court has no power to supply such omission. 2d. I am not prepared to concede that such a result would follow from the view which I have taken; for there is certainly high authority for saying that, in such a case, the administrator of the domicil could bring the action. The reason for the rule that a foreign administrator cannot sue in this State as usually given is, that it is necessary for the protection of the rights and interests of the creditors of the decedent within the State; and as the rights of creditors are in no way involved in a case like this, the reason for the rule ceases, and under the maxim,
cessante ratione legis cessat ipsa lex,
that rule would not apply in a case like this.
It seems to me, therefore, that in any view which I am able to take of this case, that the judgment of the Circuit Court should be reversed, and the case remanded to the court of probate, with instructions to sustain the demurrer to the petition for revocation of the letters of administration granted to the said McCown, and with leave to answer said petition, if he so desires, raising such issues of fact as may be deemed pertinent to the case.