Bartee v. Vitocruz ( 2014 )

Present: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
Powell, JJ., and Lacy, S.J.
ROBERT BARTEE, ADMINISTRATOR
OF THE ESTATE OF TONIA BEGLEY,
DECEASED
v. Record No. 131283 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
MARISSA G. VITOCRUZ June 5, 2014
FROM THE CIRCUIT COURT OF WISE COUNTY
Chadwick S. Dotson, Judge
In this appeal we consider whether a sole surviving co-
administrator of an intestate’s estate may maintain a wrongful
death action.
FACTS AND PROCEEDINGS
On January 12, 2010, Tonia Michelle Begley presented to the
Emergency Department of Wellmont Lonesome Pine Hospital
complaining of chest pain, anxiety and elevated blood pressure.
Marissa G. Vitocruz, M.D., evaluated, treated and discharged Ms.
Begley from the Emergency Department. Ms. Begley died on
January 13, 2010.
On January 29, 2010, Robert Bartee and Wiley Begley
qualified in the Circuit Court of Wise County, Virginia, as co-
administrators of Ms. Begley’s estate. On August 31, 2011,
Wiley Begley died. On December 22, 2011, Robert Bartee, as the
“duly qualified . . . administrator” of Ms. Begley’s estate
filed a wrongful death lawsuit pursuant to Code § 8.01-50
alleging that Vitocruz was negligent in her medical care and
treatment of Ms. Begley and that Vitocruz’ negligence was the
proximate cause of Ms. Begley’s death.
Vitocruz filed motions to dismiss and abate the wrongful
death action asserting that Bartee lacked standing to file the
action without the co-administrator joining in the case. The
trial court, citing this Court’s interpretation of the provision
now found in Code § 8.01-50(C) 1 that there must be “a unity of
action whether there is one personal representative or more than
one,” Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d 402,
404 (2011), held that Bartee lacked standing to sue alone. The
trial court also concluded that Code § 8.01-5(A) permitted the
joinder of Wiley Begley as an additional party plaintiff at any
time the ends of justice may require.
Bartee filed a motion to reconsider with the trial court
arguing that when there is a joint administration of an estate
and one of the personal representatives dies, or is removed, the
entire authority vests in the surviving administrator. Vitocruz
opposed the motion arguing that the doctrine of survivorship
applies to executors only and not administrators.
The trial court denied Bartee’s motion to reconsider, but
granted him leave to amend his complaint. On March 18, 2013,
Bartee filed an amended complaint that did not add Wiley Begley
1
Effective July 1, 2012, Code § 8.01-50 was amended, as
relevant here, to redesignate subsection B to subsection C.
2012 Acts ch. 725.
2
or another person as a party plaintiff, but explained that the
Wise County Circuit Court Clerk “refused [Bartee’s] requested
qualification or requalification, asserting that there was no
need for another qualification or requalification in order for
the original qualification to be effective and that the
surviving administrator, Robert Bartee, had the authority to act
alone.”
Vitocruz filed motions to dismiss and abate Bartee’s
amended complaint again arguing that Bartee lacked standing to
file an action without the other co-administrator joining in the
case and that Bartee failed to correct his lack of standing.
The trial court granted Vitocruz’ motion to dismiss the
amended complaint, finding that “Bartee lacked standing acting
alone to sue the defendant because the qualification of both
Robert Bartee and Wiley Begley as co-administrators was in full
force and effect when Robert Bartee filed this action.” The
trial court denied Bartee’s motion for leave to file an
additional amended complaint, dismissed the case and struck it
from the court’s docket.
Bartee filed a petition for appeal, arguing that the trial
court erred in dismissing the wrongful death action because
under the doctrine of survivorship he, as the sole remaining co-
administrator, had the authority to maintain the wrongful death
action.
3
DISCUSSION
In Addison, we held that one of two co-administrators of an
estate had standing to file a wrongful death action pursuant to
Code § 8.01-50 and that such filing was not a nullity. 281 Va.
at 209, 704 S.E.2d at 404-05. However, because Code § 8.01-50
requires unity of action “whether there is one personal
representative or more than one,” the other co-administrator was
a necessary party plaintiff to the action. Id. at 208, 704
S.E.2d at 404. Applying Code § 8.01-5, we concluded that the
second co-administrator could be joined as a party plaintiff and
that the original filing tolled the running of the statute of
limitations. Id. at 211, 704 S.E.2d at 406.
In this case, Bartee, as a duly qualified co-administrator,
filed the wrongful death action within the limitations period
and, therefore, under Addison, he had standing to file the suit,
the filing was not a nullity, and the filing tolled the statute
of limitations.
Bartee argues here, as he did in the trial court, that he
was not required to take any further action because when Wiley
Begley died, Bartee, as remaining co-administrator, had complete
power and authority to maintain the wrongful death action. This
issue is a question of law that we review de novo. Antisdel v.
Ashby, 279 Va. 42, 47, 688 S.E.2d 163, 166 (2010). Bartee also
suggests that this is an issue of first impression and we agree.
4
Bartee relies on the doctrine of survivorship as the basis
for his position, citing Virginia cases that hold where joint
executors are appointed in a will that does not require joint
exercise of the power, and one executor dies, the power of the
office devolves on the surviving executor to exercise the power
of that office. Hofheimer v. Seaboard Citizens’ Nat’l Bank, 154
Va. 896, 156 S.E. 581 (1931); Shepherd v. Darling, 120 Va. 586,
91 S.E. 737 (1917); Davis v. Christian, 56 Va. (15 Gratt.) 11
(1859). Bartee cites to the Uniform Probate Code, § 3-718,
cases from other jurisdictions and secondary sources for the
principle that the doctrine of survivorship applicable to
executors also applies to administrators. See Smith v. Smith,
173 S.W.2d 813 (Ky. 1943); Beall v. Hilliary, 1 Md. 186 (1851);
Ballard v. Zachry, 187 S.E. 139 (Ga. Ct. App. 1936); 31 Am.
Jur.2d, Executors and Administrators § 949 (2012); Bouvier’s Law
Dictionary 47 (Student ed. 1928); and Bouvier’s Law Dictionary
1144 (8th ed. 1914). However, he cites no Virginia authority
for that proposition and we find none. Nevertheless, as
discussed below, our review of the relevant Virginia statutes
and case law addressing the powers of administrators and
substitution of parties is consistent with the application of
the doctrine of survivorship upon which Bartee relies in this
case.
5
Compliance with the trial court’s requirement that Bartee
add Wiley Begley, the other named co-administrator, or some
other co-administrator as a party plaintiff is not possible
under Virginia statutory and case law. First, Wiley Begley
could not be added as a necessary party plaintiff because he was
deceased. Generally, if a person becomes incapable of
prosecuting or defending a case due to death, the action may
proceed on behalf of the decedent’s estate by and through the
substitution of decedent with his personal representative. Code
§ 8.01-56; Rule 3:17; see also Estate of James v. Peyton, 277
Va. 443, 451, 674 S.E.2d 864, 867 (2009)(holding that personal
representative of estate may be substituted for deceased party
defendant); Seymour v. Richardson, 194 Va. 709, 711, 75 S.E.2d
77, 78 (1953)(reviving action in name of personal representative
when party to litigation died). However, when an executor or an
administrator of an intestate’s estate dies, the estate of the
deceased executor or administrator, by and through the estate’s
personal representative, does not succeed to the interest of the
executor as executor or administrator as administrator. Rather,
a new administrator or administrator with the will attached must
be appointed to prosecute an action on behalf of the
estate. See, e.g., Coleman v. M’Murdo, 26 Va. (5 Rand.) 51, 55,
64, 79, 131-32 (1827)(holding administrator de bonis non,
appointed upon death of intestate’s administrator, could not
6
maintain an action against the initial administrator for wasting
assets); see also Code § 64.2-513 relating to executors.
Therefore, in this case, neither Wiley Begley nor his estate, by
and through its personal representative, could be joined as a
necessary party for the prosecution of this wrongful death
action.
Second, Virginia jurisprudence provides that once the
administrator or administrators of an intestate’s estate have
been properly qualified and appointed, another administrator may
not be appointed unless there is a vacancy in the
office. Bolling v. D’Amato, 259 Va. 299, 303-04, 526 S.E.2d
257, 259 (2000)(citing Andrews v. Avory, 55 Va. (14 Gratt.) 229,
236 (1858)). A vacancy in the office exists only when there is
no existing qualified administrator. Id.
If the office of administrator is not vacant, it follows
that the powers of the office have not terminated and therefore
the remaining co-administrator must have the authority to
exercise the powers attached to the office. We reached this
conclusion long ago in Davis with regard to executors. 56 Va.
(14 Gratt.) at 38. In Davis, we concluded that, because the
office survives as long as a co-executor survives, “by parity of
reason” the powers of the office survive and can be executed by
the sole surviving executor unless the will specifically
required joint exercise of the powers. Id. We see no reason
7
why this same rationale should not be applied to the office of
administrator of an intestate estate. To do otherwise would
either prevent administration of the estate or require a duly
qualified administrator to submit his resignation to the court
and, upon notice to the parties in interest, the court could
accept the resignation and then allow another person to qualify
as an administrator. Code § 64.2-610(B). 2 Neither course of
action is acceptable. Requiring the resignation and
reappointment of a duly qualified administrator elevates form
over substance, is an unnecessary use of judicial resources,
would delay administration of the intestate’s estate - in this
case, the prosecution of the wrongful death action - and
provides no benefit to any party involved. Alternatively,
applying the survivorship doctrine to administrators allows the
efficient use of judicial resources, continuation of the
estate’s administration, and is not prejudicial to any party.
Vitocruz argues, however, that the survivorship doctrine
cannot be applied to administrators because in enacting Code §
64.2-517 the General Assembly limited the doctrine of
survivorship to executors and administrators with the will
annexed. 3 We disagree. We cannot say that the intent of the
2
Code § 64.2-1424 also allows a personal representative to
resign, conditioned on the accounts being settled as provided by
law. This provision is not relevant here.
3
Code § 64.2-517 provides:
8
General Assembly in enacting Code § 64.2-517 was to limit the
survivorship principle to co-executors. A long-standing policy
distinction exists between executors and administrators.
Executors are specific individuals chosen by the testator to
administer the testator’s estate. If co-executors are
appointed, there is a presumption that the testator intended
that the administration be accomplished jointly by the named
individuals. Therefore, Code § 64.2-517 provides important
notice to the testator that the survivorship principle will be
applied unless the testator provides otherwise in the will. No
such presumption of joint administration exists in the case of
an intestate’s estate and therefore notice to the testator
A. When discretionary powers are conferred upon the
executors under any will and some, but not all, of the
executors die, resign, or become incapable of acting,
the executors or executor remaining shall continue to
exercise the discretionary powers conferred by the
will, unless the will expressly provides that the
discretionary powers cannot be exercised by fewer than
all of the original executors named in the will.
B. When discretionary powers are conferred upon the
executors under any will and all of the executors or
the sole executor if only one is named in the will
dies, resigns, or becomes incapable of acting, the
administrator with the will annexed appointed by the
court shall exercise the discretionary powers
conferred by the will upon the original executors or
executor, unless the will expressly provides that the
discretionary powers can only be exercised by the
executors or executor named in the will.
9
afforded by Code § 64.2-517 is not relevant in the case of
intestacy.
In summary, for the reasons stated above, we hold that
Bartee, as a duly appointed co-administrator of the estate of
Tonia Begley at the time he filed the wrongful death action
against Vitocruz, had standing to file the action. Because the
other co-administrator had died, there was no other necessary
party who could be joined as a party plaintiff. The office of
administrator of Tonia Begley’s estate was not vacant and no
other appointment could be made until a vacancy existed.
Applying the doctrine of survivorship, the power of appointment
given Bartee and Wiley Begley as co-administrators to prosecute
a wrongful death action pursuant to Code § 8.01-50 could be
exercised by Bartee as the sole remaining administrator.
Accordingly, we will reverse the judgment of the trial
court and remand the case for further proceedings.
Reversed and remanded.
10