Elliott v. D'India

Anita Elliott, the mother of Patricia D’India, deceased, appeals from a judgment of the probate court under which she takes nothing upon her petition for an apportionment of damages collected by Patricia’s estate in settlement of an action for her (Patricia’s) wrongful death.

Patricia died intestate on November 20, 1972, at the age of 26 years. Her only heirs at law were appellant and John D’lndia, her (Patricia’s) husband and the respondent herein. Respondent was duly appointed administrator of Patricia’s estate. In March 1973, acting as administrator and on behalf of Patricia’s “heirs” pursuant to Code of Civil Procedure section 377, he commenced an action for damages for her wrongful death against certain defendants allegedly responsible therefor.

By order entered in the estate proceedings in July 1974, upon respondent’s petition, the probate court approved his execution of a negotiated settlement of the wrongful death action whereby he would receive the gross sum of $25,000 as administrator. The settlement having been executed, appellant filed in the probate court her petition for an “apportionment” to her, as an “heir” of Patricia’s and pursuant to section 377 (see…