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In re Estate of Sumler12/19/2002
Appellee's motion for rehearing having previously been granted by our Court, and our original opinion filed on September 23, 2002, having been withdrawn by order of the Court, the following opinion is hereby substituted as the opinion of the Court.
Although this case is nominally an appeal from an order appointing Appellee as the personal representative of a deceased child's estate, the actual controversy between the parties is over who should control and profit from the action for the child's wrongful death. We take this opportunity to address two important questions concerning wrongful death actions. First, applying settled law, we hold that the district court's appointment of a surviving parent as the personal representative of the deceased child's estate is neither necessary nor sufficient authority for the parent to prosecute an action for the wrongful death of a child. Second, addressing a matter of first impression, we hold that under NMSA 1978, § 41-2-3, a surviving parent's right to share in the proceeds of an action for the wrongful death of a child vests at the time of the child's death, and that upon the parent's death the parent's interest in wrongful death proceeds passes to the parent's estate.
BACKGROUND
Five-year-old Kirsten Janay Sumler (Kirsten) was severely burned by the explosion of a natural gas pipeline. Kirsten died within hours of the explosion. Her mother, Amanda Sumler Smith (Mother), also was severely burned. Mother survived Kirsten's death, but thereafter died from her own injuries.
Appellee, Paul E. Dawson (Father), is Kirsten's natural father. Mother and Father were never married. In 1996, in the course of child support proceedings brought by the Human Services Department, Father was adjudged to be Kirsten's natural parent.
Appellant, Jerry Rackley, is Mother's half-brother. Appellant, Martha Chapman, is Mother's mother-in-law.
Appellants petitioned the district court for an order appointing them as personal representatives of Kirsten's estate. Father objected to Appellants' petition and petitioned the district court for an order appointing him as the sole personal representative. Father asserted, inter alia, that
[Father], as the only surviving parent of Kirsten Janay Sumler, a minor child, is the sole statutory beneficiary under the New Mexico Wrongful Death Act, NMSA 1978 § 41-2-3, for any wrongful death action brought on her behalf, and therefore has initiated such an action in the United States District Court for the District of New Mexico. Martha Chapman and Jerry Rackley have no status as statutory beneficiaries . . . or entitlement to the proceeds from any such action. Nor would the recovery from such an action be part of the Estate of Kirsten Janay Sumler. Therefore, the Court should not appoint a personal representative of the Estate under NMSA 1978 § 45- 3-203 who is not a proper personal representative and statutory beneficiary under NMSA 1978 § 41-2-3, as there are no known assets in Decedent's estate to be administered.
The district court entered a Judgment and Order of Adjudication of Intestacy and Appointment of Personal Representative appointing Father as personal representative of Kirsten's estate. Appellants filed a timely notice of appeal.
DISCUSSION
1. The Nominal Controversy
In probate law, "personal representative," refers generally to persons with the duty of settling and distributing a decedent's estate under the supervision of a court, and includes executors and administrators. XVIII Cyclopedia of Law and Procedure, Executors and Administrators § I,B,1 (William Mack, ed. 1905). The ter
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