Present: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
Powell, JJ., and Lacy, S.J.

ROBERT BARTEE, ADMINISTRATOR
OF THE ESTATE OF TONIA BEGLEY,
DECEASED

v.   Record No. 131283                OPINION BY SENIOR JUSTICE
                                          ELIZABETH B. LACY
MARISSA G. VITOCRUZ                         June 5, 2014


                FROM THE CIRCUIT COURT OF WISE COUNTY
                      Chadwick S. Dotson, Judge

      In this appeal we consider whether a sole surviving co-

administrator of an intestate’s estate may maintain a wrongful

death action.

                         FACTS AND PROCEEDINGS

      On January 12, 2010, Tonia Michelle Begley presented to the

Emergency Department of Wellmont Lonesome Pine Hospital

complaining of chest pain, anxiety and elevated blood pressure.

Marissa G. Vitocruz, M.D., evaluated, treated and discharged Ms.

Begley from the Emergency Department.    Ms. Begley died on

January 13, 2010.

      On January 29, 2010, Robert Bartee and Wiley Begley

qualified in the Circuit Court of Wise County, Virginia, as co-

administrators of Ms. Begley’s estate.    On August 31, 2011,

Wiley Begley died.    On December 22, 2011, Robert Bartee, as the

“duly qualified . . . administrator” of Ms. Begley’s estate

filed a wrongful death lawsuit pursuant to Code § 8.01-50

alleging that Vitocruz was negligent in her medical care and
treatment of Ms. Begley and that Vitocruz’ negligence was the

proximate cause of Ms. Begley’s death.

     Vitocruz filed motions to dismiss and abate the wrongful

death action asserting that Bartee lacked standing to file the

action without the co-administrator joining in the case.   The

trial court, citing this Court’s interpretation of the provision

now found in Code § 8.01-50(C) 1 that there must be “a unity of

action whether there is one personal representative or more than

one,” Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d 402,

404 (2011), held that Bartee lacked standing to sue alone.     The

trial court also concluded that Code § 8.01-5(A) permitted the

joinder of Wiley Begley as an additional party plaintiff at any

time the ends of justice may require.

     Bartee filed a motion to reconsider with the trial court

arguing that when there is a joint administration of an estate

and one of the personal representatives dies, or is removed, the

entire authority vests in the surviving administrator.   Vitocruz

opposed the motion arguing that the doctrine of survivorship

applies to executors only and not administrators.

     The trial court denied Bartee’s motion to reconsider, but

granted him leave to amend his complaint.   On March 18, 2013,

Bartee filed an amended complaint that did not add Wiley Begley

     1
      Effective July 1, 2012, Code § 8.01-50 was amended, as
relevant here, to redesignate subsection B to subsection C.
2012 Acts ch. 725.


                                2
or another person as a party plaintiff, but explained that the

Wise County Circuit Court Clerk “refused [Bartee’s] requested

qualification or requalification, asserting that there was no

need for another qualification or requalification in order for

the original qualification to be effective and that the

surviving administrator, Robert Bartee, had the authority to act

alone.”

     Vitocruz filed motions to dismiss and abate Bartee’s

amended complaint again arguing that Bartee lacked standing to

file an action without the other co-administrator joining in the

case and that Bartee failed to correct his lack of standing.

     The trial court granted Vitocruz’ motion to dismiss the

amended complaint, finding that “Bartee lacked standing acting

alone to sue the defendant because the qualification of both

Robert Bartee and Wiley Begley as co-administrators was in full

force and effect when Robert Bartee filed this action.”   The

trial court denied Bartee’s motion for leave to file an

additional amended complaint, dismissed the case and struck it

from the court’s docket.

     Bartee filed a petition for appeal, arguing that the trial

court erred in dismissing the wrongful death action because

under the doctrine of survivorship he, as the sole remaining co-

administrator, had the authority to maintain the wrongful death

action.


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                              DISCUSSION

     In Addison, we held that one of two co-administrators of an

estate had standing to file a wrongful death action pursuant to

Code § 8.01-50 and that such filing was not a nullity.       281 Va.

at 209, 704 S.E.2d at 404-05.    However, because Code § 8.01-50

requires unity of action “whether there is one personal

representative or more than one,” the other co-administrator was

a necessary party plaintiff to the action.        Id. at 208, 704

S.E.2d at 404.    Applying Code § 8.01-5, we concluded that the

second co-administrator could be joined as a party plaintiff and

that the original filing tolled the running of the statute of

limitations.     Id. at 211, 704 S.E.2d at 406.

     In this case, Bartee, as a duly qualified co-administrator,

filed the wrongful death action within the limitations period

and, therefore, under Addison, he had standing to file the suit,

the filing was not a nullity, and the filing tolled the statute

of limitations.

     Bartee argues here, as he did in the trial court, that he

was not required to take any further action because when Wiley

Begley died, Bartee, as remaining co-administrator, had complete

power and authority to maintain the wrongful death action.          This

issue is a question of law that we review de novo.        Antisdel v.

Ashby, 279 Va. 42, 47, 688 S.E.2d 163, 166 (2010).       Bartee also

suggests that this is an issue of first impression and we agree.


                                   4
        Bartee relies on the doctrine of survivorship as the basis

for his position, citing Virginia cases that hold where joint

executors are appointed in a will that does not require joint

exercise of the power, and one executor dies, the power of the

office devolves on the surviving executor to exercise the power

of that office.    Hofheimer v. Seaboard Citizens’ Nat’l Bank, 154

Va. 896, 156 S.E. 581 (1931); Shepherd v. Darling, 120 Va. 586,

91 S.E. 737 (1917); Davis v. Christian, 56 Va. (15 Gratt.) 11

(1859).    Bartee cites to the Uniform Probate Code, § 3-718,

cases from other jurisdictions and secondary sources for the

principle that the doctrine of survivorship applicable to

executors also applies to administrators.     See Smith v. Smith,

173 S.W.2d 813 (Ky. 1943); Beall v. Hilliary, 1 Md. 186 (1851);

Ballard v. Zachry, 187 S.E. 139 (Ga. Ct. App. 1936); 31 Am.

Jur.2d, Executors and Administrators § 949 (2012); Bouvier’s Law

Dictionary 47 (Student ed. 1928); and Bouvier’s Law Dictionary

1144 (8th ed. 1914).    However, he cites no Virginia authority

for that proposition and we find none.    Nevertheless, as

discussed below, our review of the relevant Virginia statutes

and case law addressing the powers of administrators and

substitution of parties is consistent with the application of

the doctrine of survivorship upon which Bartee relies in this

case.




                                   5
     Compliance with the trial court’s requirement that Bartee

add Wiley Begley, the other named co-administrator, or some

other co-administrator as a party plaintiff is not possible

under Virginia statutory and case law.    First, Wiley Begley

could not be added as a necessary party plaintiff because he was

deceased.    Generally, if a person becomes incapable of

prosecuting or defending a case due to death, the action may

proceed on behalf of the decedent’s estate by and through the

substitution of decedent with his personal representative.      Code

§ 8.01-56; Rule 3:17; see also Estate of James v. Peyton, 277

Va. 443, 451, 674 S.E.2d 864, 867 (2009)(holding that personal

representative of estate may be substituted for deceased party

defendant); Seymour v. Richardson, 194 Va. 709, 711, 75 S.E.2d

77, 78 (1953)(reviving action in name of personal representative

when party to litigation died).    However, when an executor or an

administrator of an intestate’s estate dies, the estate of the

deceased executor or administrator, by and through the estate’s

personal representative, does not succeed to the interest of the

executor as executor or administrator as administrator.    Rather,

a new administrator or administrator with the will attached must

be appointed to prosecute an action on behalf of the

estate.     See, e.g., Coleman v. M’Murdo, 26 Va. (5 Rand.) 51, 55,

64, 79, 131-32 (1827)(holding administrator de bonis non,

appointed upon death of intestate’s administrator, could not


                                  6
maintain an action against the initial administrator for wasting

assets); see also Code § 64.2-513 relating to executors.

Therefore, in this case, neither Wiley Begley nor his estate, by

and through its personal representative, could be joined as a

necessary party for the prosecution of this wrongful death

action.

     Second, Virginia jurisprudence provides that once the

administrator or administrators of an intestate’s estate have

been properly qualified and appointed, another administrator may

not be appointed unless there is a vacancy in the

office.   Bolling v. D’Amato, 259 Va. 299, 303-04, 526 S.E.2d

257, 259 (2000)(citing Andrews v. Avory, 55 Va. (14 Gratt.) 229,

236 (1858)).   A vacancy in the office exists only when there is

no existing qualified administrator.     Id.

     If the office of administrator is not vacant, it follows

that the powers of the office have not terminated and therefore

the remaining co-administrator must have the authority to

exercise the powers attached to the office.      We reached this

conclusion long ago in Davis with regard to executors.      56 Va.

(14 Gratt.) at 38.   In Davis, we concluded that, because the

office survives as long as a co-executor survives, “by parity of

reason” the powers of the office survive and can be executed by

the sole surviving executor unless the will specifically

required joint exercise of the powers.     Id.   We see no reason


                                 7
why this same rationale should not be applied to the office of

administrator of an intestate estate.       To do otherwise would

either prevent administration of the estate or require a duly

qualified administrator to submit his resignation to the court

and, upon notice to the parties in interest, the court could

accept the resignation and then allow another person to qualify

as an administrator.    Code § 64.2-610(B). 2   Neither course of

action is acceptable.       Requiring the resignation and

reappointment of a duly qualified administrator elevates form

over substance, is an unnecessary use of judicial resources,

would delay administration of the intestate’s estate - in this

case, the prosecution of the wrongful death action - and

provides no benefit to any party involved.       Alternatively,

applying the survivorship doctrine to administrators allows the

efficient use of judicial resources, continuation of the

estate’s administration, and is not prejudicial to any party.

     Vitocruz argues, however, that the survivorship doctrine

cannot be applied to administrators because in enacting Code §

64.2-517 the General Assembly limited the doctrine of

survivorship to executors and administrators with the will

annexed. 3   We disagree.    We cannot say that the intent of the


     2
      Code § 64.2-1424 also allows a personal representative to
resign, conditioned on the accounts being settled as provided by
law. This provision is not relevant here.
     3
      Code § 64.2-517 provides:


                                     8
General Assembly in enacting Code § 64.2-517 was to limit the

survivorship principle to co-executors.    A long-standing policy

distinction exists between executors and administrators.

Executors are specific individuals chosen by the testator to

administer the testator’s estate.    If co-executors are

appointed, there is a presumption that the testator intended

that the administration be accomplished jointly by the named

individuals.   Therefore, Code § 64.2-517 provides important

notice to the testator that the survivorship principle will be

applied unless the testator provides otherwise in the will.    No

such presumption of joint administration exists in the case of

an intestate’s estate and therefore notice to the testator




     A. When discretionary powers are conferred upon the
     executors under any will and some, but not all, of the
     executors die, resign, or become incapable of acting,
     the executors or executor remaining shall continue to
     exercise the discretionary powers conferred by the
     will, unless the will expressly provides that the
     discretionary powers cannot be exercised by fewer than
     all of the original executors named in the will.

     B. When discretionary powers are conferred upon the
     executors under any will and all of the executors or
     the sole executor if only one is named in the will
     dies, resigns, or becomes incapable of acting, the
     administrator with the will annexed appointed by the
     court shall exercise the discretionary powers
     conferred by the will upon the original executors or
     executor, unless the will expressly provides that the
     discretionary powers can only be exercised by the
     executors or executor named in the will.


                                 9
afforded by Code § 64.2-517 is not relevant in the case of

intestacy.

     In summary, for the reasons stated above, we hold that

Bartee, as a duly appointed co-administrator of the estate of

Tonia Begley at the time he filed the wrongful death action

against Vitocruz, had standing to file the action.   Because the

other co-administrator had died, there was no other necessary

party who could be joined as a party plaintiff.   The office of

administrator of Tonia Begley’s estate was not vacant and no

other appointment could be made until a vacancy existed.

Applying the doctrine of survivorship, the power of appointment

given Bartee and Wiley Begley as co-administrators to prosecute

a wrongful death action pursuant to Code § 8.01-50 could be

exercised by Bartee as the sole remaining administrator.

     Accordingly, we will reverse the judgment of the trial

court and remand the case for further proceedings.



                                           Reversed and remanded.




                               10
