In Re Estate of Johnson

HILL, Justice,

dissenting, with whom GOLDEN, Justice, joins.

[128] I respectfully dissent. For so long as the wrongful death statute has existed in this state, there can be no legitimate doubt or ambiguity, whatsoever, that by its use of the phrase "personal representative," the legislature intended that it have the same meaning as that expressed in Wyo. Stat. Ann. § 2-4-201:

§ 2-4-201. Persons entitled to administer.
(a) Administration of the estate of a person dying intestate shall be granted to one (1) or more of the persons mentioned in this section. The relatives of the deceased are entitled to administer only when they are entitled to succeed to his personal estate or some portion thereof. They are entitled to administer in the following order:
(1) The surviving husband or wife, or some competent person whom he or she may request to have appointed;
(i) The children;
(ii) The father or mother;
(iv) The brothers or sisters;
(v) Repealed by Laws 1987, ch. 129, §§ 1, 2.
(vi) The grandchildren;
(vii) The next of kin entitled to share in the distribution of the estate;
(viii) The creditors;
(ix) Any person legally competent.
[Emphasis added.]

[124] For the first 100 years of its life in the Wyoming Statutes, the wrongful death statute used this language:

Every such wrongful death action shall be brought by and in the name of the personal representative of the deceased person; and the amount recovered shall be distributed to the parties in the proportions provided by law, in relation to the distribution of personal estates left by persons dying intestate.

Compiled Laws of Wyoming 1876, ch. 39, § 2; Rev. Statutes 1887, § 2364; Rev. Statutes 1899, § 3449; 1909 Wyo. Sess. Laws, ch. 3, § 1; Wyoming Compiled Statutes 1910, § 4292; Wyoming Compiled Statutes 1920, § 5561; Rev. Statutes 1981, § 89-404; 1989 Wyo. Sess. Laws, ch. 104, § 1; Wyoming Compiled Statutes 1945, § 3-404; 1947 Wyo. Sess. Laws, ch. 182 § 1, Wyo. Stat.1957, § 1-1066; 1973 Wyo. Sess. Laws, ch. 189, § 1.

[125] The statutes as they now appear first show up in 1977. 1977 Wyo. Sess. Laws, ch. 188, § 1 at 916. In 1980 those statutes were moved to Title 2 (Probate Code). Wyo. Stat. §§ 2-14-201 and 202%, 1980 Wyo. Sess. Laws, ch. 54, sub-chapter 14, Article 1 at 370-71. In 1982, they were removed from the Probate Code and put back into the place where they are found today. 1982 Wyo. Sess. Laws, ch. 54, § 7. The apparent reason for that quick about, face is the presence of the statutory provision making the award of damages in a wrongful death suit immune from claims of creditors under the Probate Code. Perhaps, the above history serves to explain some of the problems and unnecessary complexities that have arisen over the years. Grant Harvey Lawson, Reconciling the Wyoming Wrongful Death Act with the Wyoming Probate Code: The Legislature's Wake-up Call for Clarification, 7T Wyo. L.Rev. 409 (2007).

[126] However, the mere fact that confusion in this regard has been created, where none rightfully exists, does not justify applying rules of statutory construction to dilute what the legislature clearly intended by "personal representative:"

Each word of a statute is to be afforded meaning, with none rendered superfluous. Jessen v. Burry, 13 P.3d 1118, 1120 (Wyo.2000). Further, the meaning afforded to a word should be that word's standard popular meaning unless another meaning is clearly intended. Soles v. State, 809 P.2d 772, 773 (Wyo.1991). If the meaning of a word is unclear, it should be afforded the meaning that best accomplishes the statute's purpose. Radalj v. Union Savings & *883Loan Ass'n, 59 Wyo. 140, 138 P.2d 984, 996 (1943).

In re MN, 2007 WY 189, ¶ 4, 171 P.3d 1077, 1080 (Wyo.2007). The phrase "personal representative" is used several times in Title 1 of Wyoming Statutes Annotated and elsewhere throughout the statutes, as well. In all instances, except a limited few, its meaning can be readily traced to § 2-4-201(a) (see Wyo. Stat. Ann. §§ 9-1-108, 9-1-207(b), and 17-16-850 for the exceptions).

[127] Instead of accepting the meaning that is clearly intended by the governing statute, the majority would turn the appointment of the "personal representative," in a wrongful death case, over to the broad discretion of the district court, which essentially means that the statutory priority generally accorded to a spouse (or spouse's designee) disappears. The rule that I espouse in this dissent is the most reasonable and rational resolution available to this Court. In support of that proposition, I refer the Court to 22A Am.Jur.2d Death § 81 (2008):

According to the provisions of many wrongful-death statutes, the persons for whose benefit the action may be maintained are divided into classes based on their natural dependency on the deceased. The right of action inures for the benefit of the first preferred class, if there are in existence any beneficiaries belonging to that class, and, if there are none, then for the benefit of the class next in line of preference....
Generally, the surviving spouse and children are the first preferred, then follow the parents and siblings....
The laws of intestacy, as set forth in a probate act, may be the means for identifying the class of eligible beneficiaries to wrongful-death awards.

[128] The majority opinion misuses the applicable rules of statutory construction so as to perpetuate irrational "complexities" and to create new "ambiguities" where none exist. Of greater significance to the instant facts, it deprives the surviving spouse of her "entitlement" to serve as the personal representative in this wrongful death action. I recognize that there may be cireumstances where the surviving spouse should be disen-titled from serving as personal representative (e.g., is not mentally competent), but that is a matter to be called to the attention of the district court in a timely and appropriate manner. In this case, Father has had three opportunities to raise any issues with respect to Wife's "entitlement" to serve. In his initial petition he makes no mention of Wife, other than to include her name as fifth in line as an heir. In that same petition, Father made no mention of his relationship to the deceased, but apparently that was "divined" from sources extraneous to the court record. In his reply to Wife's petition to be substituted for Father as personal representative, Father makes no mention of, nor does he state a basis for, Wife's disqualification. In addition, no ground for disqualifying Wife was urged at the hearing into Wife's petition and Father's objections thereto. I can see no reason why this Court should allow Father a fourth opportunity to attempt to deprive Wife of her statutory entitlement.

[429] I would remand this matter to the district court, with directions that Wife be substituted for Father as the personal representative in the wrongful death action. Such a substitution would have no effect on the applicable statute of limitations. See generally Chaves v. Regents of the University of New Mexico, 103 N.M. 606, 711 P.2d 883 (1985) (where wrongful death action is filed by a person other than the personal representative within the statute of limitations, the failure to appoint a personal representative prior to the running of the limitations period does not bar the suit); Nickay Bouchard, Necessity of the Personal Representative Status in Wrongful Death Actions: Fact or Fiction?, 17 NM. L.Rev. 377 (1987) (better practice is to obtain personal representative's appointment before limitations period expires).