#### LILLIE MARTIN GRAVES v. TERRY WHITE WELBORN, T/A WELBORN ELECTRIC COMPANY.

(Filed 19 December 1963.)

1. Death § 3—

An. action for wrongful death is purely statutory and must be brought by the personal representative; If brought by a person who has not been appointed in this -State the action must fee dismissed; if -the personal representative is permitted to become a party to an unauthorized action for wrongful death, the action is deemed to have .been commenced only from the time he became a party. G.S. 28-173.

2. Parties § 2—

The court has no authority, over objection, to convert a pending action which cannot be maintained onto a new and independent action by admitting a party who is solely interested -as plaintiff.

*6893. Death § 4—

The amendment of G.S. 28-173 by G.S. 1-53(4) removed the time limitation on- an action for 'Wrongful' death as a condition annexed to the cause of a-etion and made it a two-year statute of limitations.

4. Executors and Administrators § 8—

Whether an action is brought by -a person in his individual capacity or in his capacity as personal representative is to be determined from the allegations of the complaint and not the caption to the action.

5. Pleadings § 25—

Ordinarily the court may allow in its discretion an amendment to correct a misnomer or mistake in the ¡name -of a party where th-e amendment does not amount to a substitution or entire change of parties.

6. Same; Death § 4— Where action is instituted by person adjudged to he entitled to appointment, issuance of letters relates hack to time of order.

The widow, prior to filing complaint in this action for wrongful death, had applied for appointment as administratrix, and order had been issued adjudging that she was entitled to appointment and she had signed the bond, but the surety had not signed and 'the letters did not actually issue until more than two years -after intestate’s death. The caption of -the complaint was in the name of the widow individually, but the complaint alleged in good faith -that she was the duly appointed and acting administra-trix of decedent. Held,: Upon the issuance of letters -they related back to the time of the order, and the court should permit an amendment and should not dismiss th-e -action on the ground that it was not instituted within the time limited.

Appeal by plaintiff from Shaw, J., September 2, 1963 Civil Term of Guileohd.

Action for wrongful death. The events, material to this decision, occurred chronologically ¡as follows:

Paul Junior Graves died intestate on August 30,1957.

On August 7,1958 ihis wife, Lillie Martin Graves', the plaintiff in this action, applied to the Clerk of 'tibe Superior Court of Guilford Counity for letters of administration upon his estate. The application specified no valuation for either his real or personal -property. On the sa-me day an order for letters of administration was signed iby the Assistant Clerk ¡of the Superior Court in- which it was adjudged that plaintiff was entitled to the letters upon her qualification by taking the oath -and giving an approved bond as required by laiw. The order did not ascertain the value of the decedent’s property but provided that if the surety -upon the ‘bond- ¡should be an authorized surety company, the penalty -of the bond would be one thousand dollars. The plaintiff thereupon signed the oath and, as principal, she also executed the bond in *690the sum of one thousand dollars. The surety named in the bond, Sonth-am Fidelity Mutual Insurance Company, 'did not them execute it.

Om August 17, 1959 plaintiff instituted this aictiiom (to recover diam-ageis from the defendant for the wrongful death of her intestate. The caption of the complaint indicated that she 'had brought the action as an individual. However, in the first paragraph plaintiff .alleged that she “wias duly appointed- and is now «citing as administratrix of the estate of .said decedent.”

On November 12, 1959 the defendant, .having obtained an extension of time, 'by -answer denied that plaintiff was the duly appointed ad-ministratrix of the estate.

On April 2, 1962 the surety executed the bond and, on .that day, the Clerk of the Superior Court issued letter© of .administration to the plaintiff.

The defendant questioned plaintiff’s1 right to. maintain this action. On October 12, 1962 plaintiff amid defendant, by written stipulation incorporating the course of events- .as -above -stated, agreed that the Judge of the Superior Court might ascertain as a matter of law whether or not plaintiff was entitled to. maintain the suit.

Thereafter, Judge Shaw heard the matter upon the stipulations and argument of counsel. He .concluded, as a matter of law, that the action was not instituted by the personal representative of Paul Junior Graves as required by G.S. 28-173; that the statute of limitation, G.S. 1-53 (4), barred the action for wrongful death on August 30, 1959; -and that, therefore, the court was without authority to permit plaintiff to amend- the complaint 'by alleging -her subsequent qualification as ad-ministratrix after the time limitation for bringing the action had expired. From his -order dismissing the action, plaintiff appealed to this Court.

Elreta Melton Alexander for plaintiff appellant.

Hines & Boren and Jordan, Wright, Henson & Nichols for defendant appellee.

Sharp, J.

The right of action for wrongful death is purely statutory. It may be brought only “by the executor, .administrator, or collector of the decedent.” G.S. 28-173. A widow, -a© such, -has no right of action for the death of -her husband. Howell v. Comrs., 121 N.C. 362, 28 S.E. 362. If .an action for wrongful death is instituted by one other than the personal representative of -a decedent, -duly -appointed in this State, it should be dismissed, Carr v. Lee, 249 N.C. 712, 107 S.E. 2d 544; Journigan v. Ice Co., 233 N.C. 180, 63 S.E. 2d 183; Monfils v. *691 Hazlewood, 218 N.C. 215, 10 S.E. 2d 673, and' a separate and independent action instituted .by sucih representative. Hall v. R. R., 149 N.C. 108, 62 S.E. 899. The court has no authority, over objection, to convert a pending action iwhioh cannot be maintained amito a new and independent action by admitting a party who is solely interested as plaintiff. Exterminating Co. v. O’Hanlon, 243 N.C. 457, 91 S.E. 2d 222. However, should the personal representative be permitted toi become a party to an unauthorized action for wrongful death, the action is deemed to have been commenced only from the time he became a party. Hall v. R. R., supra; Reynolds v. Cotton Mills, 177 N.C. 412, 99 S.E. 240; Insurance Co. v. Locker, 214 N.C. 1, 197 S.E. 555.

Prior to the enactment of Chapter 246, Sess. Laws of 1951 (now codified as G.S. 1-53(4)) which amended G.S. 28-173, the institution of an action for wrongful death within one year after such death was a condition precedent to maintaining the action. All other requirements of the section were .also strictly construed. See annotation to G.S. 28-173. The amendment removed the time limitation as a condition annexed to the cause of action and made it a two-year statute of limitations. McCrater v. Engineering Corp., 248 N.C. 707, 104 S.E. 2d 858.

The ma.j ority rule is that an amendment which changes the capacity in Which a plaintiff sues does not change the cause of action so as to let in the defense of the statute of limitations. Annot., 74 A.L.R. 1269; Lopez v. United States, 82 F. 2d 982, 987. That rule has not been followed in North, Carolina. Bennett v. R. R., 159 N.C. 345, 74 S.E. 883. However, plaintiff did not purport to institute the instant ease in her individual capacity. In the first paragraph of the complaint she alleged that Ae was the duly appointed and acting administratrix of Graves. “An allegation iby one describing himself as .administrator of a designated estate is sufficient to show .that he sues as such.” 21 Am. Jur., Executors and Administrators § 947.

It is true that in the caption of the complaint 'and summons plaintiff did not designate herself as administratrix. When a suit is brought ■by a fiduciary he should indicate his representative capacity in the caption off the pleadings, but the .character in which a party sues must be determined from the complaint and not from the caption. Refining Co. v. Bottling Co., 259 N.C. 103, 130 S.E. 2d 33; 39 Am. Jur., Parties § 6.

Bennett v. R. R., supra, involved an action for .wrongful death commenced by the widow of the decedent-on July 4, 1910. An examination of -the record of that case reveals (,as the reported case doeis- not) that she alleged in her 'complaint that ishe had been 'duly appointed as ad-ministratrix. The complaint itself had no caption but in the caption of *692the summons the plaintiff’s name appeared only as .an individual. On Maircih 11, 1912, the defendant moved to dismiss 'because plaintiff “failed to file a 'complaint in .this action as required by statute.” The plaintiff then -moved to amend the summons by adding the word “ad-ministratrix” after her name. The judge allowed this motion. The Supreme Court reversed mud dismissed the action saying that the effect of the amendment was “to- change the entire character of the action and to convert that which iwa;s the individual action of Mary E. Bennett into one by ¡her in her representative capacity as administratrix.” The 'court held this could not be done more than a year after the death. On the record the Bennett case appears -to have been wrongly decided.

-Ordinarily an -amendment of -process and pleadings may be allowed in the discretion of the court to correct a misnomer or mistake in ¡the name of a party where the amendment does not amount to a substitution or entire change -of parties.. Bailey v. McPherson, 233 N.C. 231, 63 S.E. 2d 559. In the instant case had plaintiff in fact been the duly appointed 'administratrix at -the time the complaint was filed, there is no question but that the court would have had plenary power under G.S. 1-163 to permit the plaintiff to- .amend the caption in order to designate herself as administratrix in conformity with the all-legation in the -complaint.

However, the right to amend i-s not the primary question 'here. The difficulty in this case As that at the time plaintiff filed her complaint alleging that she was the -duly -appointed administratrix of Graves, that allegation was denied and it was not true. At that time the cause of -action for wrongful death was not barred -by the- applicable two-year -statute of limitations. When -her letters were actually issued, however, her intestate had -been dead more than- five year's. It -is obvious, therefore, that unless -the plaintiff’s appointment as administratrix related back to the institution of this action, -or to the time the order adjudicating her right to letters w.as -signed, it cannot survive defendant’s denial oif the -allegations in paragraph one of the complaint.

In ¡order to .protect property rights and to protect one Who, prior to Ibis appointment, has acted to preserve -the estate, .it is the universal rule that all previous acts o-f the personal representative prior to his appointment Which were beneficial -in nature to the estate and which would h-a-ve been within the scope of his -authority had he been duly -qualified, me validated up-o-n- his appointment which relates -back to -the death -of the -intestate for this purpose. Jones v. Jones, 118 N.C. 440, 24 S.E. 774; 21 Am. Jur., Executors and Administrators § 211; see Annot., 26 A.L.R. 1359.

Althongjh the appointment o-f an ladmin-istrator relates back to- the date o-f the death of decedent for many purposes, the courts are not *693in -accord -as -to -whether it will relate back iso- as to- validate an action brought prior to- the appointment.

In Gatfield agt. Hanson, et al, 57 How. Pr. (N.Y.) 331, the heirs, mot purporting to -act for the estate, instituted the action to collect a mortgage which decedent owned at the -time of her death. Thereafter one of them was appointed administrator. In -dismissing the action, the court-said: “As John H. Gatfield had no- legal title or right to the mortgage when the action was -commenced, his subsequent -appointment cannot uphold the suit. The question- is, what -right had he when he instituted the suit? His -subsequent appointment as administrator de bonis non cannot give validity to -an- action commenced before the -appointment.

In Pearson v. Anthony, Iowa, 254 N.W. 10, decedent died November 20,1931. On February 9, 1932, his wife, alleging that she was the duly appointed administratrix, instituted an action to- recover dam-ages for his wrongful death. The truth was that she expected to- be -appointed sometime in the future b-ut, because of a lack of funds- she had not secured her appointment. She was -actually appointed on February 17, 1933 — after the statute of limitations had barred the -action. The cou-rt said the question was whether the -action of -an individual pretending to -act -as administratrix were effective to commence the action and thereby -avoid the bar of the statute -of limitation®. It answered the question in the negative and -dismissed the suit.

In Clinchfield Coal Corporation v. Osborne’s Adm’r., 114 Va. 13, 75 S.E. 750, (1912) -suit was brought in the name of K as administrator of the estate of 0 to recover -damages for the wrongful death of 0 from the defendant Coal Corporation. No question -of the -statute of limitations was involved. After verdict it was discovered that by some mistake or inadvertence no order had ¡been- entered appointing K 'administrator. The order of appointment was then signed and judgment entered upon the verdict. Upon 'appeal, the case was sent back for a new trial on other -grounds, but the -court held that the appointment after verdict was valid and related back to the 'institution of the action. Among other authorities, it relied upon Doolittle v. Lewis, 7 Johns. Ch. (N.Y.) 49, 11 Am. Dec. 389, in- which Chancellor Kent was quoted as follows: “If a party ¡sues as executor-or administrator, without -probate or taking -out letters of administration, the taking -them out at any time before the hearing will cure the defeat and -relate -back so as to make the bill good from the beginning. In a light -so merely formal is that omission viewed.”

In Griffin v. Workman, Fla., 73 So. 2d 844, G died on November 28, 1950. On November 26, 1952 -plaintiff, the father of the decedent, in*694stituted .am action for hi® wrongful death ais adviinistrator of his estate. At that time the father was mot (the administrator. Two. days later he petitioned for appointment amid am order was entered reciting that upon taking the oarth and filing (title specified bond, letters would be granted. Letters were .actually issued on January 31, 1953. On January 9, 1953 defendant moved to- dismiss the action and the trial 'court allowed the motion. In reversing the dismissal, the Supreme Count reasoned: The death action was the only asset of the estate; the .suit was brought by the .person entitled to1 administer; mo fraud or inequity was involved .and no¡ new cause of action was presented by allowing the father to prosecute the action to a conclusion. “We think, therefore,” said the court, “that the issue is ruled by the amcdemt doctrine ‘that whenever letters of administration .or testamentary are granted they relate back to the intestate's or testator’s death. . . .’ ” No. plea of the statute of limitation was there involved, but the court said that such a plea would not necessarily have changed its conclusions.

In Anderson v. Union Pac. R. Co., Utah, 289 P. 146, plaintiff, alleging that he was the administrator of G’s estate, instituted an action to recover for the .wrongful death oif Inis intestate. Although tine district court had entered an order for plaintiff's .appointment and he had filed his bond as 'directed in the order, on the trial it w.a,s discovered that he had failed- to- take the oath of office. Consequently, his letters had not been issued. During the trial plaintiff took the oath and letters were issued. The court held that the letters related bach to the time of the order validating the institution of the action which was for the benefit of the estate.

It is a long established rule in the Federal courts that a lack of letters of administration may be cured, and an objection to. want of capacity to sue, may be avoided by amendment or by substitution of the proper party at any time before hearing. Later appointments of this mature will relate back and validate the proceedings from the beginning regardless of the statute of limitations. Lopez v. United States, supra; Deupree v. Levinson, 186 F. 2d 297 and cases therein cited.

A case on all fours with the instant case is Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641, 22 N.E. 2d 195, 123 A.L.R. 761. There, decedent died 0.ctoiber 28, 1935. His wife, as administratrix, instituted an action for his wrongful death on October 27, 1937 — one day befoi'e the statute of limitations would have 'barred the action. Prior to that date, after 'having presented 'herself to the probate court asking to be appointed, she had received forms from the court which she erroneously believed to be letters of .administration. Thereafter She informed her counsel that she 'had been appointed, .and the error was not discovered *695until preparations were being made for .the trial. She was actually appointed on November 27, 1937, more than, two. yeans after the date of death. Thereafter she filed an amended .complaint in which she alleged the above facts and -attempted to ratify her act in commencing the action. Inter alia, defendant interposed these defenses: (1) Plaintiff did not have legal capacity to sue at the time she instituted the action, and (2) at the time of filing the amended petition the action was barred by the two year statute of limitations for wrongful death actions. The trial court sustained these defenses and directed a verdict for the defendant. The Court of Appeals reversed, quoting from the earlier case of Archdeacon v. Cincinnati Gas & Electric Co., 76 Ohio St. 97, 81 N.E. 152 as follows:

> . (T)he motion -to dismiss, was based upon a mere technicality. The plaintiff having fully qualified as administrator, before the case was reached for trial, every right of the defendants upon the merits of the case was fully preserved, and in no possible aspect could the delay in perfecting the bond and receiving the letters of administration prejudice the defense of the defendants ■upon the real meritorious question involved in the controversy, which -was whether or not the defendants’ negligence was the cause of the death.” Douglas v. Daniels, 62 Ohio App. 1, 22 N.E. 2d 1003.

On appeal, the Supreme Court of Ohio sustained the Court of Appeals, saying:

> “The amendment corrects the allegations of the petition with ■respect to plaintiff’s capacity to sue and relates to the right of action as contradistinguished from the cause of action. A night of action is remedial, while a cause of action is substantive, and an amendment of the former does not affect the substance of the latter. See 1 Bouv. Law Dict., Rawles Third Revision, page 295; Pomeroy’s Code Remedies, 5th Ed., 526 et seq., Section 346 et seq.; 1 Cyc., 642. An amendment which does not substantially change the cause of action may be made even after the statute of limitations has run.

> “We hold that where a widow -institutes an action as administra-trix, for damages for the wrongful death of her husband, under the mistaken belief that «he had been duly appointed and had qualified as such, thereafter discovers her error and amends her petition so as to- show that she was appointed administratrix after *696 the expiration of tike 'Statute of limitation applicable to such action, the amended petition will relate tack to the date of the ■filing -of it)he petition, and) the action will be deemed commenced within the time limited by statute.”

This case was the subject of an annotation in 123 A.L.R. 768 (1939) in which the commentator stated that mo other case had been found which involved the question of an amendment to a complaint after Imitation had run-, so as to allege the subsequent valid 'appointment of a plaintiff who. had professed to bring the action initially in his representative capacity as executor or administrator..

The Ohio Court has since made it 'dear that the doctrine of relation back validates only those actions of .a personal -representative which ■are for tire benefit of the estate. Where it was discovered that letters -otf .administration had been applied for but not issued to -the defendant administrator until after the expiration of the statute of limitations m to a tart -action against the estate, the -court held there was no relation back. Wrinkle v. Trabert, 174 Ohio St. 233, 188 N.E. 2d 587.

We think that the reasoning of the Ohio Court in Douglas v. Daniels Bros. Coal Co., supra, is sound -and -applicable to -the facts of the instant oas-e. Unlike Pearson v. Anthony, supra, our case -was not instituted by one pretending to be -the administrator. Plaintiff, in good faith, and with some reason, -albeit mistakenly, believed herself to- be the duly appointed administratrix of the estate of Paul Junior Graves -at the time she instituted the suit. Prior to the filing of the complaint plaintiff had -applied- for appointment; the Clerk 'had entered an order adjudging that she was entitled to letters of administration upon taking (the oath and giving the -bond. She had taken the oath, signed the bond as principal, and left it with the Clerk pending the signature o-f the surety. The bond recites that it was signed, sealed, and delivered in the presence of Madge C. Parker, Assistant Clerk of -the Superior Court of Guilford County on August 7, 1958. The signature of the surety w-as the -only remaining requirement for the issuance of letters. It is noted that .the claim for wrongful death was -the only ¡asset of the estate and at that stage of the proceedings -a nominal bond would have sufficed.

The basis of defendant’s motion to dismiss the action is wholly technical. He ih-ais in nowise been prejudiced iby the course of events. We 'therefore hold -that, when issued, plaintiff’© letters related back to the commencement of the action which was brought for the benefit of the estate prior to the bar of the statute of limitations, and- that the complaint may properly be amended to allege ¡the true facts. However, we must not be understood as holding that -one who has never applied for letters or Who, having applied, had no reasonable grounds for be*697lieving •that be bad been duly appointed, nan institute an action for wrongful death, or any other ■cause, upon a false allegation of appointment .and thereafter validate that allegation by a subsequent appointment. We think that the Iowa Court 'correctly dealt .with a pretender.

For the reasons stated, the order of the court below dismissing the action is

Reversed.