Breese's Estate, In re

• Decision Date: 21 November 1957
• Docket Number: No. 34195,34195
• Citation: 317 P.2d 1055,51 Wn.2d 302
• Parties: ESTATE of Edward M. BREESE, Deceased. Abner E. BREESE, father of the decedent and general administrator, and Nationwide Mutual Insurance Company of Columbus, Ohio, Appellants, v. Jack L. BURTCH, Administrator, et al., Respondents.
• Court: Washington Supreme Court

Page 302

51 Wn.2d 302

317 P.2d 1055

ESTATE of Edward M. BREESE, Deceased.

Abner E. BREESE, father of the decedent and general

administrator, and Nationwide Mutual Insurance

Company of Columbus, Ohio, Appellants, v. Jack L. BURTCH, Administrator, et al., Respondents.

No. 34195.

Supreme Court of Washington, Department 2.

Nov. 21, 1957.

Rehearing Denied Feb. 28, 1958.

Burkey, Burkey & Marsico, Tacoma, for appellants.

Omar S. Parker, Hoquiam, Donn F. Lawwill, John W. Schumacher, Aberdeen, for respondents.

ROSELLINI, Justice.

Edward M. Breese, a resident of Ohio temporarily stationed at Fort Lewis, Washington, as a private first class in the United States army, was killed in an automobile collision in Grays Harbor county on June 3, 1956. The driver and passengers in the other automobile involved in the collision were injured, and Breese's automobile was demolished. The injured parties joined in petitioning the probate court of Grays Harbor county for the appointment of an administrator for the estate of Edward M. Breese, alleging that they had a cause of action against him for their injuries and that he died leaving estate within the county. There had been a prior petition by another claimant, who had rendered towing service, but that petition is not involved in this appeal.

The alleged estate consisted of the 1953 Ford automobile, which the decedent was driving at the time of the accident, and a right of indemnity under a liability policy issued by the Nationwide Mutual Insurance Company of Columbus, Ohio. However, prior to the filing of this petition, the insurer acquired title to the 1953 Ford when the Ohio administrator (the decedent's father) was paid his claim for damages under the collision coverage afforded by that company. The insurer and the Ohio administrator, who are appellants herein, objecting to the petition for appointment of an administrator in Grays Harbor county, alleged that there was no property of the decedent in Grays Harbor county, upon which administration could be had.

A hearing was held on the petition, and the court concluded that the Ford automobile was no longer property of the decedent within the county but that the protection afforded him against liability, under the terms of his insurance policy, was property within the county sufficient to give the court jurisdiction to appoint an administrator, against whom suit could be brought by the petitioners. The conclusion that the insurer's liability was property in the county of Grays Harbor was based upon a finding that the insurer was subject to suit in that county (under RCW 48.05.220), having been licensed to do business in the state of Washington, and having appointed the commissioner of insurance to accept service of process.

On appeal, it is urged that the conclusion that the decedent's contingent claim under the policy was an asset in Grays Harbor county was erroneous.

This court has held that, before an administrator may be oppointed for a deceased person who was not a resident of this state at the time of his death, it must be shown that he left property within the jurisdiction of the court upon which administration may be had. State ex rel. Brisbin v. Frater, 1 Wash.2d 13, 95 P.2d 27. A cause of action is an asset sufficient to give the court jurisdiction. Lund v. Seattle, 163 Wash. 254, 1 P.2d 301; In re Rowley's Estate, 178 Wash. 460, 35 P.2d 34. While the right of the decedent's personal representative to the benefits of the indemnity clause contained in the policy of insurance will not mature until suit is brought against him, nevertheless, it has a present value to the estate. Property 'worthy of notice' is sufficient to give the court jurisdiction in probate. In re Rowley's Estate, supra.

The next question is whether this right to indemnity is an asset which exists in Grays Harbor county. The trial court held that it is, because the insurer is subject to suit in that county if the liability matures there.

The insurer admits that it has consented to the service of process on the insurance commissioner in compliance with RCW 48.05.200, which provides in part:

'Each authorized foreign or alien insurer shall appoint the commissioner as its attorney to receive service of, and upon whom shall be served, all legal process issued against it in this state upon causes of action arising within this state.

Service upon the commissioner as attorney shall constitute service upon the insurer. Service of legal process against such insurer can be had only by service upon the commissioner.'

But it contends that a suit against it under this policy would not be a suit upon a cause of action 'arising in this state.' The reasoning which it advances in support of this argument is that a recovery against it by the insured, in the event of a judgment against him, would be a suit upon a contract entered into in another state. It is true that the law of the state in which the contract was formed would govern its enforcement if properly pleaded, but the fact that the contract was formed in another state does not mean that a cause of action for its breach would necessarily arise in that state. If the insurer is obliged to defend suits brought against the insured, and an action is brought against him in this state, a refusal to defend such action would constitute a breach within this jurisdiction. There is no question but that, had the insured lived, the injured parties would have been entitled to sue him in Grays Harbor county, where the accident occurred. Furthermore, if their suit were successful, they would have a right to garnish the insurer. Finkelberg v. Continental Cas. Co., 126 Wash. 543, 219 P. 12; Johnson v. McGilchrist, 174 Wash. 178, 24 P.2d 607; Holthe v. Iskowitz, 31 Wash.2d 533, 197 P.2d 999. The garnishment action, being ancillary to the main action, would be properly laid in Grays Harbor county....