Collins v. Northwest Cas. Co., 25039.

• Decision Date: 11 January 1935
• Docket Number: 25039.
• Citation: 180 Wash. 347,39 P.2d 986
• Court: Washington Supreme Court
• Parties: COLLINS v. NORTHWEST CASUALTY CO.

39 P.2d 986

180 Wash. 347

COLLINS v. NORTHWEST CASUALTY CO.

No. 25039.

Supreme Court of Washington

January 11, 1935

Department 2.

Appeal from Superior Court, King County; George A. Joiner, Judge.

Action by Frederick B. Collins against the Northwest Casualty Company. From the judgment, the plaintiff appeals.

Affirmed.

Todd Holman & Sprague and Clarence Innis, all of Seattle (De Forest Perkins, of Seattle, of counsel), for appellant.

Shank Belt & Rode, of Seattle, for respondent.

GERAGHTY Justice.

This case arises out of a liability policy of insurance issued by the respondent to the late Mrs. Wallace G. Collins, covering Buick automobile owned by her. Mrs. Collins maintained a home in Seattle, in which her adult son, Frederick B. Collins, the appellant, and a housekeeper, lived with her. She had another son, Wallace G. Collins, who was married and maintained his own home in that city. The appellant, while living with his mother, maintained a car of his own, which he permitted her to use, and she in turn had given him permission to use her car. He and his mother used one or other of the cars as suited their convenience.

The insurance policy here in question was written on October 3, 1931. It insured Mrs. Collins against loss from liability imposed by law upon her for damages on account of bodily injuries or death accidentally suffered by any person as a result of the ownership, maintenance, or use of the car described in the policy. The policy contained an extended coverage clause, as follows:

'A. Extended Coverage: The terms and conditions of this policy are so extended as to be available, in the same manner and under the same conditions as they are available to the named Insured, to any person or persons while riding in or legally operating any of the automobiles described in this policy, and to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named Insured, or, if the named Insured is an individual, with the permission of an adult member of the named Insured's household other than a chauffeur or a domestic servant; except that this extended coverage shall not be available to the owner or operator of a public automobile garage, automobile repair shop, automobile sales agency, automobile service station, or an agent or employee thereof. Provided further, however, that the limits named in the schedule shall first apply in payment of any loss or damage for which the named Insured is liable.

'The term 'Named Insured' as used in this paragraph shall mean the party named in Item I. of the Declarations on the face of this policy.' Another clause of the policy read:

'H. Ownership: Unless otherwise provided by agreement in writing added hereto, this entire policy shall be void in case of transfer or termination of the interest of the Insured other than by death of the Insured; or in case of any change in the nature of the insurable interest of the Insured in the property described herein either by sale or otherwise.'

Mrs. Collins died May 12, 1932, leaving a nonintervention will, in which J. T. McVay was named as executor, with a proviso that, if he should die or otherwise fail to act, her sons, Wallace G. and appellant, were to act as joint executors. In the will, she bequeathed the automobile to her son Wallace. McVay was in California at the time of Mrs. Collins' death, and the will was not admitted to probate until May 24th. McVay qualified as executor May 26th. On May 17th, and prior to the probate of the will, appellant, while driving his mother's car, accompanied by his brother, Wallace, accidentally injured one Shirley Gordon, a minor. She sued appellant for damages. The appellant, claiming protection under the extended coverage clause of his mother's policy, tendered defense of the suit to respondent. Respondent denied liability, and declined to assume the defense. Thereafter appellant effected a compromise of the suit, and brought this action against respondent to recover the amount paid in settlement of the claim. No issue is made upon the amount paid by appellant in settlement. The appellant bases his right to recover upon the extended coverage clause quoted above, contending that he is entitled to protection under it upon several grounds.

First. It will be noted that clause H of the policy quoted above reads: 'Unless otherwise provided by agreement in writing added hereto, this entire policy shall be void in case of transfer or termination of the interest of the Insured, other than by death of the Insured.' This implies that the obligation of the respondent was not necessarily to cease with the death of Mrs. Collins, the named insured. The appellant argues from this that the benefits of the policy were available, first, to McVay, the named executor; secondly, to the possible executors, himself and his brother, Wallace, in the event of McVay's failure to qualify; and, thirdly, to Wallace, who was to receive the car under his mother's will. The appellant's argument is that in some way one or other of these parties would immediately, upon Mrs. Collins' death be entitled to the benefits of the policy as named insured in her stead.

We are not able to follow the appellant's argument under this head. At the time of the accident, the will had not been probated, nor any personal representative of the decedent appointed. Until the probate of the will and his acceptance of the trust, McVay had no status entitling him to any control over the car. The same is true as to appellant and his brother, Wallace, the alternate executors. As to the right of Wallace, the specific bequest of the car would not be effective to confer upon him any control pending probate of the will. After probate, title vested in the executor, subject to the claims of creditors of the deceased. Title to the car could come to Wallace only through the executor at the close of administration.

'The personalty of the deceased goes primarily to the executor or administrator as assets and not to the heir, and this has been held to be true even though there are no debts, and one claiming the personalty is the sole distributee. The title of an executor or administrator with the will annexed to particular personal property is not affected by the fact that it was specifically bequeathed or has been set aside for the payment of a particular legacy.' 23 C.J. p. 1127.

'It is the settled law of this state that executors and administrators are entitled to the possession and control of the property both real and personal of estates while being administered by them, as against heirs and devisees as well as all other persons. Rem. & Bal. Code, §§ 1366, 1449, 1534; Gibson v. Slater, 42 Wash. 347, 84 P. 648; Griffith v. James , 158 P. 251.' Bishop v. Locke, 92 Wash. 90, 158 P. 997, 998.

Second. Appellant next contends that, even though the permission for the use of the car given by his mother was terminated by her death, as an adult member of her household the protection of respondent's policy was available...