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Seay v. Hall — Opinion Summary (Supreme Court of Texas, Oct. 3, 1984)

Factual and Procedural Background

Willie Rhoneta Seay (petitioner) brought survival and wrongful death actions after her husband died from injuries caused when a boiler safety valve released scalding water and steam. She initially sued the defendants in a Dallas County district court under Tex.Rev.Civ.Stat.Ann. art. 4671 (wrongful death) and art. 5525 (survival). Five days later she filed the same causes of action against the same defendants in the Dallas County statutory probate court. The defendants filed motions to dismiss in the probate court asserting lack of jurisdiction, and the probate court ordered dismissal for want of jurisdiction. The court of appeals held the probate court had jurisdiction over the survival action but affirmed dismissal of the wrongful death action (663 S.W.2d 468). The Supreme Court of Texas reviewed the matter and affirmed the appellate court's conclusion that the probate court lacked jurisdiction over the wrongful death action, reversed the appellate court insofar as it held the probate court had jurisdiction over the survival action, and affirmed the probate court's dismissal order in its entirety.

Legal Issues Presented

  1. Whether statutory probate courts have jurisdiction over survival actions arising from a decedent's injuries.
  2. Whether statutory probate courts have jurisdiction over wrongful death actions.
  3. Whether the Probate Code provisions (Tex. Prob. Code Ann. §§ 3, 5, and 5A) — specifically the phrases "appertaining to estates and incident to an estate," "all matters relating to the settlement, partition, and distribution of estates," and the definition of "claims" — are sufficiently broad to confer probate court jurisdiction over such survival and wrongful death causes of action.

Arguments of the Parties

Petitioner's Arguments

  • Mrs. Seay relied on Tex. Prob. Code Ann. §§ 3, 5, and 5A to argue that both the survival and wrongful death causes of action appertained to or were incident to an estate, or were "claims" by an estate, and thus fell within the probate court's jurisdiction.

Respondents' Arguments

  • The defendants moved to dismiss the probate court actions on the ground that the probate court lacked jurisdiction over survival and wrongful death causes of action.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Zamora v. Gonzalez, 128 S.W.2d 166 (Tex.Civ.App.—San Antonio 1939, writ ref'd) Defines "matters incident to an estate" as those in which the controlling issue is settlement, partition, or distribution of an estate. The Court relied on this "controlling issue" test to limit probate jurisdiction and held survival and wrongful death actions do not present such controlling issues.
Wolford v. Wolford, 590 S.W.2d 769 (Tex.Civ.App.-Houston [14th Dist.] 1979, writ ref'd n.r.e.) Held a probate court lacked jurisdiction to try a personal injury case; applied the "controlling issue" limitation. The Court approved this interpretation as consistent with limiting probate jurisdiction to cases where settlement/partition/distribution is the controlling issue.
Bell v. Hinkle, 562 S.W.2d 35 (Tex.Civ.App.-Houston [14th Dist.] 1978, writ ref'd n.r.e.), cert. denied, 454 U.S. 826 (1981) Interpreted "matters incident to an estate" narrowly; accord with Wolford. The Court cited Bell as in accord with the principle that probate court jurisdiction is limited to cases where the controlling issue relates to settlement/partition/distribution of the estate.
Sumaruk v. Todd, 560 S.W.2d 141 (Tex.Civ.App.-Tyler 1977, no writ) Applied limiting construction of probate jurisdiction to matters where controlling issue concerns estate settlement/distribution. Used as supporting authority for limiting probate jurisdiction; consistent with Court's conclusion that survival and wrongful death causes fall outside probate jurisdiction.
English v. Cobb, 593 S.W.2d 674 (Tex. 1979) Held determination of a decedent's right to probate assets falls within actions incident to an estate. The Court distinguished English as involving a probate asset (a savings account with a fixed sum) and as predating the 1979 amendment limiting probate jurisdiction; thus it did not support extending jurisdiction to survival/wrongful death claims.
Lucik v. Taylor, 596 S.W.2d 514 (Tex. 1980) Upheld an injunction incident to an estate (prohibiting will contestants from altering assets) as incident to an estate. The Court distinguished Lucik similarly as involving direct probate-asset issues and as decided prior to the 1979 statutory clarification; it did not support jurisdiction here.
Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66 (1920) Principle that courts must find legislative intent in statutory language and not supply omissions; courts are not law-makers. The Court invoked Simmons to emphasize judicial restraint and to justify refusing to expand probate jurisdiction beyond the statute's language.
General Elec. Credit Corp. v. Smail, 584 S.W.2d 690 (Tex. 1979) Support for judicial deference to legislative language in defining jurisdiction. Used to reinforce the Court's admonition against judicial expansion of statutory jurisdictional grants.
Jefferson County Drainage Dist. No. 6 v. Gary, 362 S.W.2d 305 (Tex. 1962) Principle concerning limits on judicial construction versus legislative function. Cited to support the Court's position that it should not read into statutes jurisdictional grants that the legislature did not provide.
Appeals Court decision in this case, 663 S.W.2d 468 Appellate determination that probate court had jurisdiction over the survival action but not the wrongful death action. The Supreme Court reviewed and reversed the appellate court's holding as to the survival action and affirmed as to the wrongful death action.

Court's Reasoning and Analysis

The Court began by identifying the pivotal question: whether the Probate Code phrases "appertaining to estates and incident to an estate," "all matters relating to the settlement, partition, and distribution of estates," and the definition of "claims" (Tex. Prob. Code Ann. §§ 3, 5, and 5A) are broad enough to confer probate court jurisdiction over survival and wrongful death actions. The Court proceeded through a statutory and historical analysis:

  • Statutory language: The Court examined section 5(d) and the 1979 creation of section 5A(b), which enumerates matters within probate courts' original jurisdiction and includes "claims by or against an estate" and "all matters relating to the settlement, partition, and distribution of estates."
  • Legislative history and intent: The Court reviewed the 1973 constitutional amendment enabling legislative adjustment of probate jurisdiction, subsequent legislative amendments (including the 1973, 1975, 1977, and 1979 changes), and the 1977 House Judiciary Committee reports. The Court determined that those materials and the explicit changes in 1979 were directed to limiting, not expanding, probate jurisdiction to matters where the controlling issue is settlement, partition, or distribution of an estate.
  • "Controlling issue" test: The Court reaffirmed the long-standing test (citing Zamora) that matters incident to an estate are those where the controlling issue concerns settlement/partition/distribution. It approved appellate decisions (Wolford, Bell, Sumaruk) applying that limitation and held that neither survival nor wrongful death actions present such controlling issues.
  • Meaning of "claims": The Court analyzed Tex. Prob. Code Ann. § 3(c)'s definition of "claims," concluding that the term contemplates liquidated liabilities or debts due the estate (e.g., funeral expenses, administration expenses). It reasoned that survival and wrongful death damages are generally unliquidated and do not represent a presently enforceable obligation or a specified sum owing; moreover, statutory structures (§ 322 priorities, § 233 collection responsibilities) reinforce a limited meaning of "claims."
  • Legislative indicators against expansion: The Court cited the Senate amendment to H.B. 329 (extending similar language to county courts), the Legislative Budget Board fiscal note (which did not suggest probate courts would accept wrongful death or survival causes), and the legislature's omission of these causes from subsequent statutory listings as further evidence that the legislature did not intend probate court jurisdiction over these claims.
  • Precedents cited by petitioner: The Court considered English v. Cobb and Lucik v. Taylor, but distinguished them as involving probate assets or injunctions incident to estates and as decided before the 1979 amendment aimed at preventing overbroad construction.
  • Judicial restraint: The Court emphasized that expansion of jurisdiction is a legislative, not judicial, function and invoked precedents requiring courts to find intent in statutory language rather than supply omitted provisions.

Based on this statutory construction, historical review, and application of controlling precedents, the Court concluded survival and wrongful death causes are neither matters "appertaining to" or "incident to" an estate nor "claims by" an estate within the meaning of the Probate Code; therefore, statutory probate courts lack jurisdiction over these causes.

Holding and Implications

The probate court's dismissal for lack of jurisdiction was affirmed as to both the wrongful death and the survival causes of action; the proper forum for such cases is the state district court.

Implications:

  • Direct effect: The probate court's order dismissing the survival and wrongful death actions for lack of jurisdiction is affirmed; these causes must be tried in the state district courts.
  • Scope of precedent: The Court relied on statutory construction and legislative history to narrow probate jurisdiction to matters where the controlling issue is the settlement, partition, or distribution of an estate. The decision declines to expand probate court jurisdiction to survival and wrongful death claims and emphasizes judicial restraint; it does not announce a novel expansion of probate jurisdiction.

Source: Opinion of the Supreme Court of Texas, Kilgarlin, J., Oct. 3, 1984 (Seay v. Hall).

Willie Rhoneta SEAY, Petitioner, v. William K. HALL et al., Respondents.

KILGARLIN, Justice.

The issue in this case is whether statutory probate courts have jurisdiction over survival and wrongful death actions. Because of her husband's death from injuries received when a boiler safety valve released scalding water and steam onto him, Willia Rhoneta Seay sued the various respondents in this case. Suit was initially brought in a Dallas County district court under the provisions of Tex.Rev.Civ.Stat.Ann. art. 4671 (wrongful death action) and Tex.Rev.Civ.Stat.Ann. art. 5525 (survival action). Five days after filing suit in that court, Mrs. Seay brought the same causes of action against the same defendants in the probate court of Dallas County. The various defendants filed motions to dismiss in the probate court, claiming that court lacked jurisdiction over the two causes. Dismissal for want of jurisdiction was ordered. However, the court of appeals held that the probate court did have jurisdiction of the survival action, and reversed that part of the cause. It affirmed the probate court judgment that it had no jurisdiction over the wrongful death cause. 663 S.W.2d 468. We affirm that part of the appellate court's judgment that the probate court had no jurisdiction over the wrongful death action, and reverse that part of the judgment holding that the probate court did have jurisdiction over the survival cause of action. We affirm the dismissal order of the probate court.

William K. Hall, William K. Hall Associates, William K. Hall and Company: engineers and consultants in the design and construction of the boiler and boiler room; Charles R. Freeburg, Charles R. Freeburg and Associates: architects and consultants in the design and construction of the boiler and boiler room; Henry C. Beck Company: general contractor in the construction of the boiler room; Travelers Indemnity Company: boiler inspector; and, Gaston Episcopal Hospital: Seay's employer.

Houston General Insurance Company subsequently intervened seeking recovery of compensation benefits paid Seay.

The basis of Mrs. Seay's argument that the probate court has jurisdiction over both causes of action is found in Tex.Prob Code Ann. §§ 3, 5, and 5A.

Section 5(d) provides that "[a]ll courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate." Section 5A(b) provides that "[i]n situations where the jurisdiction of a statutory probate court is concurrent with that of a district court, any cause of action appertaining to estates or incident to an estate shall be brought in a statutory probate court rather than in the district court." Further, section 5A(b) defines "appertaining to estates and incident to an estate" as including:

[T]he probate of wills, the issuance of letters testamentary and of administration, and the determination of heirship, and also include, but are not limited to, all claims by or against an estate, all actions for trial of title to land and for the enforcement of liens thereon, all actions for trial of the right of property, all actions to construe wills, the interpretation and administration of testamentary trusts and the applying of constructive trusts, and generally all matters relating to the settlement, partition, and distribution of estates of wards and deceased persons.

Section 3(c) provides that "`claims' include liabilities of a decedent which survive, including taxes, whether arising in contract or in tort or otherwise, funeral expenses, the expense of a tombstone, expenses of administration, estate inheritance taxes, liabilities against the estate of a minor or incompetent, and debts due such estates."

The pivotal issue is whether the statutory terms "appertaining to estates and incident to an estate," "all matters relating to the settlement . . . of estates," and "claims" are broad enough to confer upon probate courts jurisdiction over survival or wrongful death actions. This is necessary because the probate code does not expressly name wrongful death or survival causes of action as being claims by an estate or claims appertaining to or incident to an estate. If the statutory language is sufficiently broad, then section 5A(b) makes plain that the statutory probate court will have dominant jurisdiction over the two causes of action.

Understanding the history of the current statutes is necessary in determining if the probate courts have jurisdiction. In 1973, Texas adopted an amendment to article V, section 8, of the Texas Constitution. That amendment empowered the legislature "to increase, diminish or eliminate the jurisdiction of either the district court or the county court in probate matters." It also provided for appeal of probate matters to the court of appeals. Part of the legislature's motivation in submitting the amendment for voter approval was the feeling of many members that probate judges possessed special expertise and were more qualified than district judges in handling estate matters. Hearings on H.B. 1398 Before the House Judiciary Comm., 63 Leg., 1973 (on tape). Moreover, considerable criticism of the "costly and time-consuming requirements of dual trials of the same matters in the county and district courts" led to the provision for direct appeal to the court of appeals instead of another trial in district court. 17 M. Woodward E. Smith, Probate and Decedents' Estates § 119 (Texas Practice 1971). Anticipating voter approval of the constitutional amendment, the legislature also enacted an amendment to section 5 of the probate code. This amendment provided that in counties having statutory probate courts, "all applications, petitions and motions regarding probate, administrations, guardianships, and mental illness matters" should be filed and heard in such courts. The 1973 Probate Code § 5 amendment further provided:

All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate, including but not limited to, all claims by or against an estate, all actions for trial of title to land incident to an estate and for the enforcement of liens thereon incident to an estate and of all actions for trial of the right of property incident to an estate.

In 1975, Senate Bill 534, 64th Leg., was enacted, which added actions to construe wills to the probate court's section 5 jurisdiction. Although section 5 was again amended in 1977, that amendment was limited to the right of a surety called upon to perform in place of an administrator or guardian to sue an estate's personal representative.

Realizing that there was uncertainty among the bench and bar as to what were matters incident to probate, the Speaker of the Texas House, in 1977, charged the House Judiciary Committee to return to the 66th Legislature recommendations for changes in the probate code. That committee did report and made as its third recommendation that there be "clarification of the phrases 'appertaining to estates' and 'incident to an estate' in Probate Code Sections 4 and 5(d)." Interim Report, Tex. House Judiciary Comm.: Proposed Revision of the Texas Probate Code 13, 66th Leg. (1978). The committee report observed "the question of jurisdiction 'incident to probate' is still an unsettled one in the Texas legal community." Id. at 15. In making its recommendation the committee relied almost exclusively on two law review comments, written by the same authors, B. Schwartzel D. Wilshusen. Comment, Texas Probate Jurisdiction — There's a Will, Where's the Way, 53 Texas L.Rev. 323 (1975) and Comment, Texas Probate Jurisdiction: New Patches for the Texas Probate Code, 54 Texas L.Rev. 372 (1976). These authors advocated that probate jurisdiction be limited to actions in which the principal issue concerns validation of the testator's will and the assimilation, management, and distribution of his property in accordance with his will. They further stated that issues not falling within this definition of probate jurisdiction should be determined independent of probate jurisdiction. 53 Texas L.Rev. at 336. This language was set out verbatim in the committee report. In their second law review comment, Schwartzel and Wilshusen stated that while the statutory list of probate court powers was increased, the general scope of probate jurisdiction had not changed. They also observed that matters incident to an estate had been held to be those in which the "controlling issue" was the settlement, partition, or distribution of an estate. 54 Texas L.Rev. at 383. This observation, likewise, was incorporated in the judiciary committee interim report. Indeed, the "controlling issue" definition has long been approved by this court. See Zamora v. Gonzalez, 128 S.W.2d 166, 168 (Tex.Civ.App. — San Antonio 1939, writ ref'd).

Following the committee report, the legislature, in 1979, adopted H.B. 329, which struck part of the language of Texas Probate Code section 5(d) and created a new section 5A. In addition to the old section 5(d) provisions of (1) claims by or against an estate; (2) actions for trial of title to land incident to an estate; (3) enforcement of liens thereon incident to an estate; (4) all actions for trial of the right of property incident to an estate; and (5) actions to construe wills, new section 5A added to the probate court's original jurisdiction the following: (1) probate of wills, (2) issuance of letters testamentary and of administration, (3) determination of heirship, (4) the interpretation and administration of testamentary trusts and applying of constructive trusts, and (5) generally, all matters relating to the settlement, partition, and distribution of estates of wards and deceased persons. The bill as it passed the House contained no authorization for constitutional county courts and statutory county courts at law to probate wills, issue letters testamentary and administration, determine heirship, or have jurisdiction of all matters relating to the settlement, partition, and distribution of estates of wards and deceased persons. The Senate, however, added in committee an amendment, which ultimately became law, bestowing upon constitutional county courts and statutory county courts at law under section 5A(a) much of the same authority given statutory probate courts in section 5A(b).

If there is any legislative intent to be gleaned from the 1979 proceedings as to what appertains to an estate, it would seemingly be that the legislature did not intend to expand probate court jurisdiction to matters other than those in which the controlling issue was the settlement, partition, or distribution of an estate. It is of significance that the language "appertaining to estates" appeared previous to 1979 in only section 4, having to do with jurisdiction of county courts to hear probate matters. Previously, section 5 language granted authority to probate courts "to hear all matters incident to an estate . . ." The Judiciary Committee recommended the "appertaining to estates" language be added to section 5. This recommendation comes directly from Schwartzel and Wilshusen, who urged the "appertaining to an estate" language so that the phrase would be construed "as limiting probate jurisdiction to the probate of the will, the issuance of letters testamentary, and the settlement, partition, and distribution of estate assets." 53 Texas L.Rev. at 358.

Further, in ascertaining legislative intent, one must look to the stated purpose of the committee report: "minimizing the possibility of overboard [sic] construction of the phrases 'appertaining to an estate' and 'incident to an estate'. . . ." Interim Report at 15. The "appertaining to" and "incident to" language recommended and subsequently enacted was unquestionably designed to limit probate court jurisdiction to matters in which the controlling issue (emphasis added) was the settlement, partition, or distribution of an estate. Thus, we conclude that neither wrongful death nor survival actions are, or were intended to be, matters appertaining to or incident to estates.

Next, we consider whether Texas Prob Code Ann. § 5A language "Claims by or Against an Estate" can be construed so as to confer probate court jurisdiction over survival and wrongful death causes. Texas Prob Code Ann. § 3(c) defines "claims" in terms of certain enumerated liabilities of a decedent and debts due the estate. Obviously, the deceased's liabilities language would not confer jurisdiction. Therefore, we must determine if wrongful death or survival actions constitute debts due the estate. A debt is a "specified sum of money owing to one person from another, including not only [an] obligation of [a] debtor to pay but [the] right of [a] creditor to receive and enforce payment." Black's Law Dictionary 363 (5th ed. 1979). In survival and wrongful death actions we have no specified sums of money owed, because the damages are for the most part unliquidated. Moreover, at this time no one is obligated to pay anything.

Further justification for holding that "claims" are limited to those of a liquidated nature can be found throughout the probate code. Tex.Prob Code Ann. § 322 classifies and sets priorities for claims against a decedent's estate. Claims specified include funeral expenses, expenses of administration and other claims significantly different from the unliquidated expectancy contemplated by wrongful death and survival personal injury claims. Although section 322 only addresses claims against an estate, there is no reason to believe that the legislature intended one definition for "claims by an estate" and a different definition for "claims against an estate." A limited definition of the word "claims" is also suggested by the language in Tex.Prob Code Ann. § 233 which addresses responsibilities for collecting claims and recovering property on behalf of the estate. Therefore, we conclude these two causes of action do not constitute a claim by an estate.

The third statutory term in the trinity upon which Ms. Seay relies is the section 5A(b) language "and generally all matters relating to the settlement, partition, and distribution of estates of wards and deceased persons." As noted, however, Zamora v. Gonzalez restricted these types of cases to those in which the controlling issue is the settlement, partition or distribution of an estate. More recently, when called upon to interpret similar language in a predecessor statute to section 5A, the court in Wolford v. Wolford, 590 S.W.2d 769, 771 (Tex.Civ.App.-Houston [14th Dist.] 1979, writ ref'd n.r.e.), held that a probate court lacked jurisdiction to try a personal injury case. The appeals court said that while it was apparent that the legislature intended to broaden the jurisdiction of probate courts, the phrase "`all matters incident to an estate' applies only to those matters in which the controlling issue is the settlement, partition, or distribution of an estate . . . ." Accord Bell v. Hinkle, 562 S.W.2d 35 (Tex.Civ.App.-Houston [14th Dist.] 1978, writ ref'd n.r.e.), cert. denied, 454 U.S. 826 (1981); Sumaruk v. Todd, 560 S.W.2d 141 (Tex.Civ.App.-Tyler 1977, no writ). We approve interpretations that allow a probate court to exercise jurisdiction only if the controlling issue of the case is the settlement, partition or distribution of an estate. It is hornbook law that neither in a survival cause of action nor a wrongful death cause of action are the controlling issues, even arguably the settlement, partition, or distribution of an estate.

The Senate amendment to H.B. 329 also reveals the legislative intent. By adding to the definition of "matters appertaining and incident to an estate" for constitutional county courts and statutory county courts at law the legislature conferred on those courts the same authority which Mrs. Seay says is the basis of probate court jurisdiction over her two causes of action. It cannot be argued seriously that the legislature intended to confer upon county courts at law dominant jurisdiction over wrongful death and survival causes of action. Yet, the same statutory language which serves as a basis of Mrs. Seay's argument, would support the other proposition equally well.

The Legislative Budget Board fiscal note to H.B. 329, supplying information as to financial implications for the state, is also important. The Legislative Budget Board, citing the probate clerk of Harris County as one of the sources for its information, stated, "the removal of the monetary limitation on trust funds handled by county courts would cause a shift in cases from district courts to county court." Significantly, there was no suggestion that probate courts would entertain wrongful death and survival causes of action.

In addition, we must look to the intent of the original constitutional amendment in 1973 and the legislation which has followed. That intent was to utilize the special expertise of statutory probate court judges in handling matters appertaining to an estate. Certainly the construing of wills, providing administrations and guardianships, and handling mental illness dockets all utilize that expertise. However, personal injury litigation is not within the special domain of a probate court.

Finally, in determining legislative intent, it must be noted that H.B. 329 added four specific types of action to the jurisdiction of probate courts. None of these were wrongful death or survival actions. If the legislature had concluded there was any ambiguity as to jurisdiction of these causes, then it is reasonable to assume these actions would have been added to the list of causes over which the probate court was given jurisdiction.

Two cases from this court are cited as authority that probate courts do have jurisdiction over these two causes of action. The first of these, English v. Cobb, 593 S.W.2d 674 (Tex. 1979), held that a county court at law, handling probate matters, had jurisdiction to adjudicate an estate's rights to money in a savings account jointly in the name of the deceased and her sister. The holding states that the "determination of a decedent's right to probate assets necessarily falls within the scope of being an action 'incident to an estate'." We observe that our present case lacks any probate asset such as a savings account containing a fixed sum of money. The second case is Lucik v. Taylor, 596 S.W.2d 514 (Tex. 1980). There, an injunction which prohibited will contestants from changing the form or location of a decedent's assets was upheld as being incident to an estate. That case is also easily distinguishable for similar reasons. Moreover, we note that both these cases interpreted probate law prior to the 1979 amendment which was designed to prevent overbroad construction of probate court jurisdiction.

The legislature has thrice amended Probate Code § 5 since its original enactment. In none of the bill analyses, reports, recorded committee or floor debates, or law review articles has there been a hint that the legislature intended probate court jurisdiction over survival or wrongful death actions. Further, the legislature has thrice broadened probate court jurisdiction in specifically named areas, but has not chosen to single out the two causes under consideration.

The legislature's failure to discuss wrongful death and survival causes of action clearly illustrates that the legislature never contemplated or intended the jurisdictional step which Mrs. Seay proposes. While this court may properly write in areas traditionally reserved to the judicial branch of government, it would be a usurpation of our powers to add language to a law where the legislature has refrained. Intrusion into the legislative arena without regard for traditional constitutional and legal safeguards of legislative power would violate a fundamental judicial rule. Courts should carefully search out a statute's intent, giving full effect to all of its terms. "But they must find its intent in its language and not elsewhere. They are not the law-making body. They are not responsible for omissions in legislation." Simmons v. Arnim, 110 Tex. 309, 324, 220 S.W. 66, 70 (1920). See also General Elec. Credit Corp. v. Smail, 584 S.W.2d 690 (Tex. 1979); Jefferson County Drainage Dist. No. 6 v. Gary, 362 S.W.2d 305 (Tex. 1962).

The wisdom in following legislative intent is reinforced by those problems that would be created by a judicial expansion of probate jurisdiction. Multiple plaintiffs, some injured and some killed in the same accident, would necessarily be forced into different courts. This would create needless litigation, potential appeal and res judicata problems and could conceivably frustrate a litigant's ability to protect his interest. These problems underscore this court's justification for remaining outside the legislative realm.

Absent the legislature's express mandate that these two causes of action appertain to an estate and are within the jurisdiction of the statutory probate courts, we conclude that the proper forum for the trial of such cases is in the state district courts. Accordingly, the judgment of the court of appeals affirming the probate court's dismissal of the wrongful death action is affirmed; the judgment of the court of appeals reversing the probate court's dismissal of the survival action is reversed; and, the order of dismissal of the probate court is affirmed.

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SEAY v. HALL
(Oct 3, 1984)