Todd v. Adams , 23 N.C. App. 104 ( 1974 )

208 S.E.2d 237 (1974) 23 N.C. App. 104

Mrs. Mattie Woody TODD, Administratrix of Alex Gray Todd, Deceased,
v.
Harvey ADAMS, M.D., and Randolph Hospital, Inc., a North Carolina corporation.

No. 7418SC634.

Court of Appeals of North Carolina.

September 18, 1974.

Alvis A. Lee and Herman L. Taylor, Greensboro, for plaintiff appellant.

Henson, Donahue & Elrod by Perry C. Henson, Greensboro, for defendant appellee, Harvey Adams, M.D.

Jordan, Wright, Nichols, Caffrey & Hill by William B. Rector, Jr., Greensboro, for defendant appellee, Randolph Hospital, Inc.

HEDRICK, Judge.

The only question requiring discussion on this appeal is whether the release executed by Mattie Woody Todd prior to her appointment as administratrix of her husband's estate is a bar to an action for the wrongful death of her husband instituted subsequent to her appointment as administratrix of his estate.

The amount recovered in an action for wrongful death is not liable to be applied as assets of the estate, in the payment of debts or legacies, except as to burial expenses of the deceased, and reasonable hospital and medical expenses not exceeding $500.00, but shall be disposed of as provided in the Intestate Succession Act. G.S. § 28-173. The right of action for wrongful death is purely statutory, and it may be brought only "by the executor, administrator or collector of the decedent.. . ." G.S. § 28-173; Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963); Reid v. Smith, 5 N.C.App. 646, 169 S.E.2d 14 (1969). A widow, as such, has no right of action for the death of her husband. Graves v. Welborn, supra; Howell v. Comrs., 121 N.C. 362, 28 S.E. 362 (1897). Therefore, being unable to maintain a claim for wrongful death, the wife cannot execute a release for such a claim that would be binding on the estate unless she is first appointed the personal representative of the estate.

The judgment appealed from is

Reversed.

BRITT and BALEY, JJ., concur.