Gardinier's Estate, In re

• Decision Date: 03 June 1963
• Docket Number: No. A--102,A--102
• Citation: 191 A.2d 294,40 N.J. 261
• Parties: In the Matter of the ESTATE of Norman Henry GARDINIER, Deceased.
• Court: New Jersey Supreme Court

Page 261

40 N.J. 261

191 A.2d 294

In the Matter of the ESTATE of Norman Henry GARDINIER, Deceased.

No. A--102.

Supreme Court of New Jersey.

Argued March 19, 1963.

Decided June 3, 1963.

Robert C. Gruhin, Belleville, for appellant Nicholas torsiello.

Donald L. Berlin, East Orange, for respondent Clyde Gardinier (Stevenson & Willette, East Orange, attorneys).

The opinion of the court was delivered by

WEINTRAUB, C.J.

On September 10, 1957 an automobile driven by Nicholas Torsiello collided with an automobile driven by Norman Henry Gardinier. The accident occurred in Belleville, New Jersey, where both Torsiello and Gardinier lived. In November 1957 Gardinier moved to New York where he died in November 1958. Torsiello as a creditor applied in our State for the issuance of letters of administration, and after the letters were granted, he had process in his suit for damages served upon the administrator. The administrator sent the papers to Gardinier's insurance carrier, which thereupon had Gardinier's son move to vacate the grant of the letters. The county court denied the motion. However, the Appellate Division reversed, 74 N.J.Super. 217, 181 A.2d 35 (1962), and we granted certification, 38 N.J. 317, 184 A.2d 425 (1962).

The complaint for the issuance of the letters alleged that Gardinier died a resident of New Jersey. Torsiello insists the showing he made raised a triable issue as to whether the deceased in fact had accomplished a change of domicile. We need not consider that question since, if deceased died a nonresident, still there was property here which supported letters under N.J.S. 3A:6--10, N.J.S.A. upon the application of a creditor or claimant:

'If an executor or administrator of a nonresident decedent fails to apply in this state for letters testamentary or of administration within 60 days next after the death of the decedent and there is, real property, Choses in action or other personal property of the decedent within this state, or the evidence of choses in action in the hands of a resident of this state, the surrogate's court of a county wherein any such real property, choses in action or evidences thereof or other personal property, is situate, or the superior court, may, in an action by any person resident or nonresident, alleging himself to have a debt or legal claim against the decedent which by the law of this state survives against his representatives, issue letters of administration, with the will annexed or otherwise as the case may require, to some fit person to be designated by the court.

Prior to an appointment pursuant to this section such notice shall be given the foreign executor or administrator as the court shall prescribe.' (Emphasis added)

'Personal property' is defined in N.J.S.A. 1:1--2:

"Personal property' includes goods and chattels, rights and credits, moneys and effects, evidences of debt, choses in action and all written instruments by which any right to, interest in, or lien or encumbrances upon, property or any debt or financial obligation is created, acknowledged, evidenced, transferred, discharged or defeated, in whole or in part, and everything except real property as herein defined which may be the subject of ownership.'

The property to which we refer is the policy of automobile liability insurance, and more specifically, the right thereunder of the deceased and his estate to have the insurer defend and pay within the policy limits any judgment in a suit by Torsiello.

The Appellate Division deemed the case to be controlled by In re Roche, 16 N.J. 579, 109 A.2d 655 (1954). There both the deceased and the injured claimant who sought administration were residents of New York. The policy of insurance was issued in that state. The accident, however, occurred in New Jersey and the carrier was authorized to do business in New Jersey. In these circumstances it was held by a vote of 4 to 3 that the statute quoted above did not authorize the issuance of letters of administration.

The precise basis for the majority holding in Roche seems not too clear. We assume there was no disagreement with the generally accepted proposition that the deceased insured's right of exoneration under the policy constitutes an asset sufficient to support administration somewhere. Annot., 67 A.L.R.2d 936 (1959). Rather we read the majority opinion to find that that asset did not warrant administration in New Jersey, and apparently for three reasons to which we will now refer.

One reason was that 'in all seeming the situs of the insurance policy is the domicil of the nonresident decedent at the time of his death' (16 N.J. at p. 586, 109 A.2d at p. 659). With that proposition we must disagree. Situs, which of course is fictional in the case of ordinary intangibles, depends upon what is involved. For the purpose of administration, a sufficient situs must be found at a place where the debtor or obligor can be reached to the end that the asset may be gathered and administered. Thus the Restatement, Conflict of Laws (1934), in dealing with administration of the estate of a decedent, states in comment 'e' to section 467, that 'A claim is an asset within a state if there is jurisdiction over the person or property of the one against whom the claim is asserted.' See 6 N.J. Practice (Clapp, Wills and Administration) § 719, p. 301 (3d ed. 1962).

The majority opinion in Roche sums up another reason in the following words (16 N.J., at p. 585, 109 A.2d at p. 658):

'* * * The liability insurance policy, in its very nature, provided no reason for ancillary administration in New Jersey. There was no judgment to be satisfied under its terms; indeed, action had not been commenced. The policy does not have a situs in New Jersey. It was issued by a foreign corporation in New York to a resident of New York; and, while the indemnity company was and is authorized to transact its business in New Jersey, the policy was not delivered in the exercise of that power, and New Jersey has no interest in its enforcement which confers jurisdiction through ancillary administration to determine the underlying issue of liability in tort as between the nonresident insured and the nonresident injured third persons.'

The thought is that New Jersey did not have sufficient interest to entertain the quarrel. If that were the sole basis of decision, the present case would plainly be different. Here the State of New Jersey is the State with the greatest concern, since the accident occurred here, both of the motorists lived here, and the policy of insurance was sold here with the expectation that it would be performed here. Moreover the issuance of the policy was not a wholly private matter between the insurer and the deceased, for our Legislature almost 40 years ago expressed its interest in the subject by providing for an action by the victim upon the policy after judgment against the insured. R.S. 17:28--2, N.J.S.A. Accordingly, upon the happening of an accident the injured third party acquires an interest in the policy that cannot be foreclosed by litigation or agreement between insurer and insured alone. Dransfield v. Citizens Casualty Co., 5 N.J. 190, 74 A.2d 304, 18 A.L.R.2d 887 (1950); Century Indemnity Co. v. Norbut, 117 N.J.Eq. 584, 177 A. 248 (Ch. 1935), affirmed o.b., 120 N.J.Eq. 337, 184 A. 822 (E. & A. 1936). These circumstances suggest that New Jersey is an appropriate forum in which to litigate the deceased's liability.

Finally the majority in Roche said the quest for letters of administration was in reality but a device to obtain service of process in the negligence case 'in utter disregard of the statutory policy excluding nonresident estates from liability to substituted service in such circumstances' (16 N.J., at p. 588, 109 A.2d at p. 659). The majority there referred to the circumstance that under N.J.S.A. 39:7--2, as it then read, process could not be served upon the personal representative of a nonresident motorist by service upon the Director of Motor Vehicles albeit service could thus have been made upon the motorist had he lived. In the present case the Appellate Division recurred to that thought when it stressed that the Legislature, although it authorized such substituted service upon a motorist who ceased to be resident after the accident, N.J.S.A. 39:7--2.1, did not authorize such service upon his personal representative.

The difficulty with that argument lies in the unwarranted assumption that in failing to provide for substituted service the Legislature affirmatively decided that the negligence case should not be tried here and hence, to satisfy that legislative decision, a statute relating to the administration of estates must be curtailed accordingly. It is dangerous business to find legislative intent in legislative silence. The Legislature may fail to speak for many reasons, of which one may be that the particular problem was not in mind.

Here the statute providing for substituted service first dealt only with the nonresident motorist. N.J.S.A. 39:7--2. In 1954 the Legislature, taking cognizance of the situation in which the motorist was resident at the time of the accident but moved from the State before process was served, authorized substituted service in...