The opinion of the court was delivered by: RAYFIEL
These actions were brought under the Death on the High Seas Act (46 U.S. Code, Section 761) by the personal representatives of the above-named decedents, whose death is claimed to have been caused by the wrongful acts of the respondents. The libels allege that on February 8, 1965 Hoskins and Cook, while passengers on an airliner of the respondent, Eastern Air Lines, Inc., (Eastern) known as Flight 663, died when the said plane crashed into the sea as a result of the negligence of the respondents. None of the 84 passengers and crew survived.
Prior to the commencement of the actions Letters Testamentary and Letters of Administration were issued to the libelants respectively by the Surrogates of New York and Tompkins Counties, which facts were duly pleaded in the libels which were served on Eastern on September 2, 1965 and November 10, 1965 respectively. Eastern, in its answer, admitted that the said decedents were passengers aboard said aircraft and met their death as a result of the crash. The other respondents, Pan American World Airways, (Pan American) and United States of America, (United States) denied knowledge or information sufficient to form a belief that the libelants were appointed as personal representatives of the decedents, that the latter were passengers on the said airlines, and that while in flight the plane crashed into the sea with the loss of all its passengers and crew, including the decedents herein.
Pan American's answers to the Hoskins and Cook libels were served on October 14, 1965 and December 2, 1965 respectively, and those of United States on September 21, 1965 and December 29, 1965 respectively.
Now, some 15 or more months after the service of its answers, Pan American moves pursuant to Rule 15(a) of the Federal Rules of Civil Procedure for leave to amend the same by adding the defense that the libelants lack the capacity to sue. Eastern and the United States have made applications herein for similar relief, and like applications have been made by Pan American in several other actions arising from said crash. The respondent bases its claim on the fact that the surrogate in each case failed to comply with Sections 119(2) and 144 (3) of the Surrogate's Court Act of the State of New York, and that such failure makes the decrees granting such letters void as a matter of law. The libelants oppose the application on the grounds that (1) it is frivolous and the defense sought to be interposed is insufficient in law, and (2) it is untimely, dilatory and prejudicial to the libelants.
The respondent denies that it has acted dilatorily, claiming that it did not learn until December, 1966, when it received libelants' answers to its interrogatories, that the decedents' bodies had not been recovered and that certificates of their death had not been issued. It contends that immediately after obtaining such information it caused an investigation to be made of the records of the surrogates courts involved, and found that in issuing said Letters the surrogates had failed to comply with Sections 119(2) and 144(3), supra.
The applicable provisions of Sections 119 and 144 follow:
"§ 119. Application for letters
1. * * * [A] person interested in the estate of an intestate, or interested in an action brought or about to be brought in which the intestate, if living, would be a proper party, * * * may present to the surrogate's court having jurisdiction, a petition, praying for a decree awarding letters of administration, either to him, or to another person. * * *
"2. Where a person of whose estate the surrogate would have jurisdiction if he were shown to be dead, disappears under such circumstances as to afford reasonable ground to believe that he is dead, a creditor or a person who would be interested in the estate if he were dead may present to the surrogate's court a petition praying for a decree awarding letters of administration either to him or to another person.
"(a) If the surrogate entertains the petition, he shall issue a citation to all of the parties who would be interested in the estate, if the alleged decedent were dead, and to the alleged decedent. Such citation shall be served upon the alleged decedent by publication * * *.
"(b) Upon the return of the citation, the surrogate must inquire into the facts and circumstances and take the proof thereof, before the court, and if it appears that said alleged decedent be dead and that he left no will, the surrogate may make a decree determining such fact and granting administration upon the estate.
"§ 144. Probate not allowed, unless surrogate satisfied
3. If the will be of a person of whose estate the surrogate would have jurisdiction if he were shown to be dead, and who has disappeared under such circumstances as to afford reasonable ground to believe that he is dead, upon the return of the citation, the surrogate must inquire into the facts and circumstances and take the proof thereof, before the court, and if it appears that said alleged decedent be dead, the surrogate ...