McNEILLY et al.
FURMAN et al.
Action for death of plaintiff's husband. The Superior Court, Sussex County, 90 A.2d 670, entered an order denying motion of trustee in bankruptcy for plaintiff to be substituted as party plaintiff and the trustee in bankruptcy appealed. The Supreme Court, Southerland, C. J., held that the action did not vest in trustee in bankruptcy of the original plaintiff.
[47 Del. 566] Appeal from an order of the Superior Court of Sussex County denying the motion of appellant, Trustee in Bankruptcy for Daisey Evans Furman, to be substituted as party plaintiff in an action theretofore brought by the bankrupt to recover damages for the wrongful death of her husband. Affirmed.
Carroll F. Poole, of Wilmington, for appellant.
Daniel J. Layton, Jr., of Georgetown, for Daisey Evans Furman, appellee.
Before SOUTHERLAND, Chief Justice, WOLCOTT, Justice, and SEITZ, Chancellor.
SOUTHERLAND, Chief Justice.
The question presented is whether a right of action for wrongful death belonging to a bankrupt passes to the trustee.
The facts are these:
On July 3, 1950, the husband of Daisey Evans Furman was injured in an automobile accident and died as the result thereof. On January 9, 1951, the widow brought an action in the Superior Court of Sussex County to recover damages for his death. On December 15, 1951, she was adjudicated a bankrupt and appellant McNeilly was appointed trustee.
On March 20, 1952, the trustee filed a motion in the widow's suit to be joined as party plaintiff. (This motion was by consent treated as a motion to substitute the trustee as sole party plaintiff.) It was grounded upon the contention that the widow's right of action formed part of the bankrupt's estate under applicable provisions of the National Bankruptcy Act and that title thereto passed to the trustee upon his appointment. The court below denied the motion. See Del.Super., 90 A.2d 670. The trustee has appealed.
Section 70, sub. a of the National Bankruptcy Act, 11 U.S.C.A. § 110, sub. a, so far as here pertinent, provides as follows:
‘ The trustee of the estate of a bankrupt and his successor or successors, if any, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this title, except insofar as it is to property which is held to be exempt, to all of the following kinds of property wherever located [47 Del. 567] * * * (5) property, including rights of action, which prior to the filing of the petition he could by any means have
transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered: Provided, That rights of action ex delicto for libel, slander, injuries to the person of the bankrupt or of a relative, whether or not resulting in death, seduction, and criminal conversation shall not vest in the trustee unless by the law of the State such rights of action are subject to attachment, execution, garnishment, sequestration, or other judicial process: * * *.’
Thus, in respect of all rights of action except those enumerated in the proviso, either assignability or liability to seizure by judicial process is the general test of the trustee's title; the specific actions named in the proviso, however, do not pass to the trustee unless subject to seizure by judicial process.
The trustee contends that a right of action for wrongful death under the applicable Delaware statute is not an action for injuries to the person and is therefore not one of the actions enumerated in the proviso; and further contends that such an action is assignable by its owner and hence passes to the trustee under the general test of title.
The contention of the appellee (the widow) is twofold: (1) that a right of action for wrongful death is included as one of the actions enumerated in the proviso and that such a right is not subject to seizure by judicial process; and (2) that even if not so included it is, in any event, ...