Present: Carrico, C.J., Compton, ∗ Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.
TEDDY WAYNE BOLLING, CO-ADMINISTRATOR OF
THE ESTATE OF TED GUY BOLLING, DECEASED
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 990818 March 3, 2000
LUCIANO D'AMATO, M.D.
FROM THE CIRCUIT COURT OF WISE COUNTY
J. Robert Stump, Judge
In this civil action brought under the Death by Wrongful
Act statutes for alleged medical malpractice, the dispositive
question is whether the appointment of a so-called "co-
administrator," for purpose of bringing the action on behalf of
the decedent's estate, was void.
On August 26, 1993, Ted Guy Bolling came under the care of
appellee, Luciano D'Amato, M.D., in Wise County as the result of
injuries allegedly received in a logging accident. Bolling died
later that day.
On September 2, 1993, the clerk of the court below
appointed Betty Chloe Bolling, the decedent's widow, as
administrator of the intestate's estate. She duly qualified as
the personal representative, giving bond in the penalty of
$50,000.
∗
Justice Compton participated in the hearing and decision of
this case prior to the effective date of his retirement on
February 2, 2000.
On August 21, 1995, a judge of the trial court (not the
judge who ultimately presided over the dispute that is the
subject of this appeal) entered the order that is the focus of
this controversy. The order, entered under the style "Teddy
Wayne Bolling, Petitioner, vs: In re: The Estate of Ted Guy
Bolling, Deceased," provided:
"This action came upon motion of Teddy Wayne
Bolling to be appointed co-administrator for the
exclusive purpose of bringing a legal action for the
benefit of the estate.
"By agreement of the parties, the Court does
ORDER that Teddy Wayne Bolling is appointed co-
administrator of the estate of Ted Guy Bolling for the
exclusive purpose of bringing legal action on behalf
of the estate.
"In that this appointment is for an exclusive
purpose, it is ORDERED that Betty Chloe Bolling
retains the exclusive authority to administer the
estate of Ted Guy Bolling, and that this Order confers
no power upon Teddy Wayne Bolling for the
administration of the estate.
"Should there be any administrator's fee
associated with the prosecution of the anticipated
legal action on behalf of the estate, said fee shall
be divided equally between the co-administrators."
The order was endorsed "Requested" by an attorney for Teddy
Wayne Bolling, the decedent's son, and "Seen" by an attorney for
Betty Chloe Bolling.
On August 23, 1995, the present action was filed by
appellant "Teddy Wayne Bolling, Co-Administrator of the Estate
of Ted Guy Bolling" as plaintiff. The motion for judgment
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alleged the defendant breached the applicable standard in caring
for the decedent and caused his death.
Responding, the defendant filed a motion to abate. See
Code § 8.01-276 (abolishing pleas in abatement but allowing any
defense heretofore permitted to be made by such plea, including
lack of subject matter jurisdiction, to be made by written
motion).
The motion assigned two grounds: (1) that plaintiff had
"no right or standing to bring this action" because the order
appointing the "co-administrator" was "contrary to Virginia law,
null and void"; and (2) that, even if plaintiff was properly
appointed as administrator of the estate, "plaintiff has no
right or standing to bring this action without the other co-
administrator joining in the action."
On March 6, 1996, the same judge who entered the August 21,
1995 order entered an order under the style "Betty Chloe
Bolling, Plaintiff, vs. Teddy Wayne Bolling, Defendant." The
order recited that Betty Chloe Bolling requested she be allowed
to withdraw as administrator of the estate "in favor of
appointing an independent administrator, namely Walter Rivers,
as to fulfill the duties as the Administrator of the Estate of
Ted Guy Bolling."
The order allowed the withdrawal and appointed Rivers "as
the acting Administrator" of the estate. The order was endorsed
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"I ask for this" by Betty Bolling's attorney and as "Seen" by
the attorney for Teddy Wayne Bolling and by Rivers individually.
On July 15, 1998, under the style of the wrongful death
action, the plaintiff filed a motion "for leave to amend the
pleadings to add as a party plaintiff Walter Rivers, co-
administrator of the estate of Ted Guy Bolling."
Following a hearing and argument of counsel on the motion
to abate, the trial court granted the motion, abated the action,
and dismissed it from the docket. The court did not rule on the
motion to amend the pleadings. We awarded the plaintiff this
appeal from the December 1998 final order.
On appeal, the plaintiff assigns two errors. He contends
the trial court erred (1) by granting the motion to abate and by
finding that he lacked standing to bring this action, and (2) by
refusing to substitute Rivers as a party plaintiff. We do not
reach the second contention because the trial court did not rule
on that issue, and the plaintiff has not assigned error to the
court's alleged inaction. Rule 5:17(c).
Regarding the first contention, we do not agree with the
plaintiff that the trial court erred. The case turns upon the
validity of the August 21, 1995 order, purportedly appointing
the decedent's son "co-administrator" for a limited purpose to
serve with the decedent's widow, who, according to the order,
retained "the exclusive authority to administer the estate."
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This was the state of the record when this action was filed on
August 23, 1995, although the widow later withdrew and Rivers
was appointed "an independent administrator."
In other words, whether Teddy Wayne Bolling, as "co-
administrator," had the authority and standing to prosecute the
action on August 23 depends upon whether the order of August 21
was valid. We hold that it was void.
An order is void when it has been entered by a court that
did not have jurisdiction over the subject matter. Evans v.
Smyth-Wythe Airport Comm'n, 255 Va. 69, 73, 495 S.E.2d 825, 828
(1998).
A circuit court is a court of general jurisdiction
regarding probate and the grant of administration of estates.
See, e.g., Code §§ 64.1-75, -116, and -118. Such a court has
jurisdiction regarding the whole subject matter and, even if it
errs in taking jurisdiction in a particular case, the order
generally is not void, but only voidable and cannot be
questioned in any collateral proceeding. Andrews v. Avory, 55
Va. (14 Gratt.) 229, 236 (1858).
The foregoing rule has two exceptions, one of which
controls this case. If an intestate already has "a personal
representative in being" when the order appointing another
administrator is entered, such order is void. Id. This is
because "[t]here must be an office, and that office must be
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vacant, in order to [have] a valid appointment of a personal
representative." Until the office is vacant, "there is in fact
no 'subject matter,' to be within the jurisdiction of the court.
That subject matter is[] the appointment of a personal
representative to a decedent who has none, and whose personal
estate is therefore without an owner." Id. at 236-37.
This ancient and settled rule has been followed
consistently in our case law. For example, in Beavers v.
Beavers, 185 Va. 418, 423, 39 S.E.2d 288, 290 (1946), this Court
held that when an administrator had been appointed and
qualified, "the power of the court or clerk is exhausted, and no
further appointment can be made until a vacancy occurs in the
office in some way recognized by law." See Rockwell v. Allman,
211 Va. 560, 561, 179 S.E.2d 471, 472 (1971) (citing Andrews).
The Andrews rule has not been altered by statute. We have
found no statutory authority for the procedure employed in this
case with regard to the August 21 order, and the plaintiff has
referred us to none. Indeed, the rule is consistent with the
provisions of Code § 64.1-131, which enumerates the
circumstances when the court may allow another to qualify on an
estate and plainly requires an incumbent administrator to resign
before allowing "any other person to qualify as executor or
administrator."
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Consequently, under the Andrews rule, the August 21 order
is void because, at the time the order was entered, the decedent
already had a properly qualified administrator in Virginia,
Betty Chloe Bolling. Certainly, as the plaintiff argues,
Virginia law allows joint administration of an estate. But that
argument is irrelevant here. To obtain joint administration in
this case, Betty Chloe Bolling's appointment should first have
been revoked and then the son and widow could have been
appointed as joint administrators. See Lingle v. Cook's Adm'rs,
73 Va. (32 Gratt.) 262, 265, 268 (1879).
Therefore, because the August 21 order is void, the
plaintiff lacked standing to bring this wrongful death action
for the reason that he was not the personal representative of
the decedent's estate. Code § 8.01-50(B) (every wrongful death
action "shall be brought by and in the name of the personal
representative" of the deceased person). This means, of course,
that the trial court properly granted the motion to abate, and
the order dismissing the action will be affirmed.
Our decision today, however, shall be limited to the
present case and shall operate prospectively only; this decision
will not affect the validity of any orders entered in the past
under circumstances similar to those underlying the order in
issue here.
Affirmed.
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