## Facts

- John G. Ghilain, domiciled in Massachusetts, suffered fatal injuries in a fire at a theater in New Hampshire owned and operated by the defendants.
- Mary L. Ghilain was appointed administratrix of the decedent’s estate in Massachusetts.
- The administratrix brought a wrongful-death action in New Hampshire under the state’s death statute, seeking damages for the death allegedly caused by defendants’ negligence.
- No ancillary administration had been opened in New Hampshire.
- A jury returned a verdict for the plaintiff.
- Defendants moved for nonsuit and for a directed verdict, arguing primarily that a foreign administratrix lacked capacity to sue under the New Hampshire wrongful-death statute; the trial court denied the motions and defendants excepted.

## Issues

1. Whether New Hampshire’s wrongful-death statute authorizes a foreign administratrix, not appointed in New Hampshire, to maintain the action as “the administrator of the deceased party” when there is no local administration.
2. Whether wrongful-death damages under New Hampshire law are assets of the decedent’s estate or a statutory fund belonging to designated beneficiaries, and whether distribution must follow New Hampshire law.
3. Whether comity permits recognition of a foreign fiduciary’s authority to sue, and when a New Hampshire court may require appointment and substitution of an ancillary administrator to protect local interests.
4. Whether a New Hampshire wrongful-death judgment bars a later action in another state for damages of the same character arising from the same death when the real parties in interest are the same.

## Decision

- Defendants’ exceptions were overruled and the plaintiff’s verdict was allowed to stand.
- The court held that the Massachusetts administratrix qualified as “administrator” for purposes of the New Hampshire wrongful-death statute and could sue in New Hampshire without ancillary letters, absent local administration.
- The court held that wrongful-death damages were not general estate assets but belonged to the statute’s designated beneficiaries.
- The court stated that, if necessary to protect the interests of parties or beneficiaries, a New Hampshire court could require appointment and substitution of an ancillary administrator; such substitution would not commence a new action.
- The court stated that a wrongful-death judgment in one state bars a later suit in another state seeking damages of the same character for the same death when the real parties in interest are the same, even if nominal plaintiffs differ.

## Legal Principles

- In wrongful-death actions, the law of the place of the tort fixes both the nature of the right and the person in whom the right to sue is vested.
- A domiciliary personal representative appointed in another state may, in the absence of local administration, maintain a New Hampshire wrongful-death action without ancillary appointment when doing so does not conflict with New Hampshire public policy.
- New Hampshire wrongful-death damages are not assets of the decedent’s general estate; the administrator sues in a representative capacity for the benefit of statutorily designated beneficiaries, and the recovery is distributable accordingly.
- Comity toward foreign fiduciaries is accepted for reasons of practice and convenience, but New Hampshire may require ancillary administration to protect resident creditors or beneficiaries where appropriate.
- Substitution of one qualified personal representative for another is a continuation of the same action, not the commencement of a new one.
- A final wrongful-death judgment precludes a subsequent action in another jurisdiction seeking damages of the same character for the same death when the real parties in interest are the same.

## Conclusion

The court permitted a Massachusetts administratrix to prosecute a New Hampshire wrongful-death claim without ancillary appointment, treated the recovery as a statutory fund for designated beneficiaries rather than estate assets, allowed ancillary substitution when needed to protect interests, and recognized that a wrongful-death judgment bars duplicative litigation for the same death across jurisdictions when the true beneficiaries are the same.


Ghilain v. Couture, 84 N.H. 48, 146 A. 395 (N.H. 1929)