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March 3, 2000

Record No. 990818





J. Robert Stump, Judge

Present: Carrico, C.J., Compton,[1] Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.


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

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 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 "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." 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

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 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.
, 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."

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.




[1] Justice Compton participated in
the hearing and decision of this case prior to the effective date
of his retirement on February 2, 2000.