Administrator Ad Colligendum Lacks Capacity to Prosecute Wrongful Death Action


Ex parte 2215 Northport OpCo LLC and 2215 Northport PropCo LLC, [Ms. SC-2023-0635, Mar. 8, 2024] ___ So. 3d ___ (Ala. 2024). The Court (Mitchell, J.; Parker, C.J., and Wise, Bryan, Mendheim, Stewart, and Cook, JJ., concur; Shaw, J., concurs in the result; Sellers, J., concurs in the result, with opinion) issues a writ of mandamus to the Tuscaloosa Circuit Court directing the court to dismiss an action filed by Eric J. Anders for the wrongful death of Charlie G. Sansing. Anders had been appointed administrator ad colligendum of Sansing’s estate. The appointment allowed “Anders to collect and manage Sansing’s assets while they awaited distribution to his beneficiaries.” Ms. *2.

The Court reiterates that “‘[o]ne who sues under [the Wrongful Death Act] without having been appointed executor or administrator does not qualify … as a personal representative’” under § 6-5-410, Ala. Code 1975. Ms. *15, quoting Waters v. Hipp, 600 So. 2d 981, 982 (1992) (plurality opinion). Because the probate court did not appoint him as executor or administrator of Sansing’s estate, “Anders could not bring a wrongful-death action. And because Anders lacked authority to sue under § 6-5-410, his suit is a nullity.” Ms. **15-16.

Anders argued that § 43-2-831, Ala. Code 1975 saved the wrongful death action. That section provides that “[t]he powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter.” The Court holds “the plain language of § 43-2-831 limits the application of the rule to ‘acts by the person appointed which are beneficial to the estate.’” Ms. *16. A wrongful-death action, however, is not ‘beneficial to the estate,’ because it is not brought on behalf of the estate and the damages awarded are not part of the estate. Ms. **16-17.

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