(dissenting) :
I respectfully dissent. With all deference to the majority, I believe its opinion flows, albeit charitably, from a misapplication of the facts and law involved in the instant case.
The facts as set out by the majority opinion are largely undisputed. We have here a simple case of a beneficiary’s lack of satisfaction with a settlement and stipulations entered into by deceased’s personal representative. Deceased’s wife and legitimate children complain of their inability to intervene in this Jones Act case in order to protect their interests.
The majority first reverses the district court’s holding, “based on unopposed affidavits in the record,” that Cheryl Ann Smith was the child of the deceased. This is premised on the conclusion that Irene Smith in her deposition disputed Cheryl Ann’s status as the child of deceased and was thus entitled to have the disputed fact issue fully adjudicated in open court rather than disposed of summarily by the district judge.
The majority quotes from Irene Smith’s deposition to support its allegation of a factual dispute. In my opinion the quoted language on its face shows no fact on which we can base an assumption that Cheryl Ann was not the child of deceased. The only reason given for Mrs. Smith’s belief that Cheryl Ann was not her husband’s child was the fact that she and deceased had not had any children during the past few years, two of which years deceased had spent with his mistress. We are invited to infer from this phenomenon that deceased was incapable of having children at the time of Cheryl Ann’s birth. Any such inference, in light of the infinite number of possible explanations for deceased’s lack of productivity during these years, can only be classified as self-serving, idle speculation supported by less than a scintilla of evidence.
Aside from my factual dispute with the majority, I question what difference it makes. The district court’s judgment was not premised on undisputed facts; rather, it was based on facts stipulated by the personal representative of deceased, the party to this suit specifically empowered under the Jones Act to bring suit, to stipulate to facts, to enter into settlements, and to accomplish all other acts necessary to protect the interests of the beneficiaries.
If this Court is to reverse this case, it must do so on the sole basis that Rodney Smith, as deceased’s personal representative, could not adequately represent the interests of all the beneficiaries under the circumstances of the instant case. Only if Irene Smith is deemed to have the right to intervene is there any factual dispute to be resolved. Only then is the standard of review on motion for summary judgment applicable.
The majority next fully and adequately sets forth the applicable principles defining the sole power of the deceased’s personal representative to litigate, settle, and compromise the claims of Jones Act beneficiaries. I fully agree with the majority position that were there a conflict of interests among the beneficiaries sufficient to defeat the statutory purpose of the Jones Act in granting an action for the benefit of the surviving widow and children, the district court would have no discretion to deny the right of intervention to the unprotected beneficiary. This right to intervene, however, does not flow from the refused of the personal representative to represent adequately all interests; it must be the result of his inability to do so.
I fail to find a single irreconcilable, relevant conflict present in the instant *1347case sufficient to make the representative incapable of representing all interests. Irene Smith in her brief complains of the following stipulations, which allegedly indicate the conflict facing the personal representative:
(1) Irene Smith and her four children lived separate and apart from deceased for two years prior to his death, during which time deceased lived with his mistress several hundred miles away.
(2) Deceased’s legitimate family received no support from deceased during this period of time.
(3) Deceased never saw his family during this period.
(4) Out of the unholy alliance of John Smith and his mistress was born Cheryl Ann Smith.
(5) Cheryl Ann Smith lived with and was dependent on deceased from the time of her birth until deceased’s death.
(6) The total pecuniary damage to the beneficiaries was found to be only $50,000.
Not a single fact found in the record contradicts the stipulation that deceased chose to live with his mistress, in lieu of his wife, during the last two years of his life. This is so despite the fact that Mrs. Smith participated in all stages of the district court proceedings prior to the settlement agreement. Likewise, there are no facts which tend to question deceased’s failure to support his “legitimate” family in any meaningful way during this period. There is no conflict among the beneficiaries as to the veracity of these stipulations. They are objectively proven facts which fully support the equity of the settlement agreement and the district court’s acceptance thereof. It is thus difficult to see any prejudice to Mrs. Smith from her inability to intervene on these points.
Irene Smith does dispute the stipulation that deceased had no contact with his family during the two-year period prior to his death. She testified in her deposition that she and her children visited with the deceased one week prior to his death and that at time deceased purchased clothes and toys for the children and gave the family what money he could afford. Assuming the truth of this self-serving statement, which is supported by no other evidence in the record, it indicates at best only a bare possibility that the wandering deceased would have ever returned to his family or have fully supported them in the future. Moreover, there is ample indication that this bare possibility of future benefit to Mrs. Smith and her children was more than adequately considered by both the personal representative and the district court in apportioning the recoveries. If this had not been the case, Mrs. Smith and her children would have recovered absolutely nothing, as their pecuniary loss would then have been zero. Instead, they received a total of $29,000 — well over half the total award. This indicates that the so-called “competing” claims of the beneficiaries not only could be, but were, adequately represented by the deceased’s duly-appointed representative. Mrs. Smith and her children are entitled to no more.
There is a clear, factual conflict between the beneficiaries as to the status of deceased as Cheryl Ann’s father, although, as previously stated, the factual basis for this conflict is questionable at best. As between the beneficiaries in the instant case, however, there is no conflict of interests involved. Whether Cheryl Ann is the child of deceased might present an interesting factual controversy, but the outcome of such an adjudication should make no difference to deceased’s family save in their natural desire to protect his reputation. Proof that Cheryl Ann was not deceased’s child would in no way rebut the only relevant fact stipulated — that for her entire life Cheryl Ann had been supported by de*1348ceased. This latter fact is not disputed by Mrs. Smith, and it is clear to me that its contradiction is the only method by which Mrs. Smith can increase her recovery.
There is no doubt that establishing that Cheryl Ann was not the child of deceased would prevent her recovery and diminish the total damages due from the defendants below. The fact remains, however, that these defendants are not complaining of the stipulation. Proof of deceased’s lack of paternal connection to Cheryl Ann would not alter his apparent intent to support her — whether she was his child or the child of still another. Only if preventing Cheryl Ann’s recovery indicated in some way that Mrs. Smith and her children could expect more future support from her husband could there be any merit to the contention that an irreconcilable conflict has been presented. It is enough to say that Cheryl Ann’s failure to recover on the basis of her not being the child of deceased in no way indicates any such probability of increased future support to deceased’s wife and natural children. The relevant criteria for damages in this case is not “legitimacy versus illegitimacy”; rather, it is “support versus non-support.”
Finally, Mrs. Smith argues that the total recovery is inequitably low. This in no way indicates a contention that the personal representative could not represent all beneficiaries adequately; it is instead an allegation that he did not represent all of them adequately. No conflict of interests is shown here — all beneficiaries are interested in the total recovery which, assuming the same rate of distribution, would enrich them all. The total recovery relates to the issue of damages between the personal representative and the defendant below, an issue in which Mrs. Smith has no stake vis-a-vis the other beneficiaries. There is no doubt that the personal representative could have represented all interests adequately by insisting on the maximum possible total recovery. The possibility that he did not do so, for whatever reason, is an issue to be raised in a suit against him for breach of fiduciary duty, not by a motion to intervene on the basis of conflicting interests of the beneficiaries.
Because I see no conflict between the interests of the beneficiaries in the instant case and recognize only a possibility that the personal representative in the instant case did not, rather than could not, adequately represent all such interests, I would affirm the judgment of the district court, leaving to Mrs. Smith the decision of whether she should bring a suit for breach of the representative’s fiduciary duty.