Gardinier's Estate, In re, A--115

• Decision Date: 11 May 1962
• Docket Number: No. A--115,A--115
• Citation: 74 N.J.Super. 217,181 A.2d 35
• Parties: In the Matter of the ESTATE of Norman Henry GARDINIER, Deceased.
• Court: New Jersey Superior Court — Appellate Division

Page 217

74 N.J.Super. 217

181 A.2d 35

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

No. A--115.

Superior Court of New Jersey Appellate Division.

Argued April 9, 1962.

Decided May 11, 1962.

Donald L. Berlin, East Orange, for appellant (Stevenson & Willette, East Orange, attorneys; Donald L. Berlin, East Orange, of counsel).

No brief was filed or appearance made by respondent.

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

FREUND, J.A.D.

This appeal is by Clyde Gardinier, son and sole heir of the decedent Norman Henry Gardinier, from an order of the Essex County Court, Probate Division denying his application for an order setting aside a judgment of the Essex County Surrogate's Court granting administration upon the estate of his father to Philip Lindeman II.

The underlying facts may briefly be stated as follows. On September 10, 1957 Norman Henry Gardinier, while driving an automobile in Belleville, N.J., was involved in an accident with another automobile being operated by Nicholas Torsiello, a resident of New Jersey. On that date Gardinier resided at 67 Rossmore Place, Belleville, and was insured for liability by the St. Paul Fire and Marine Insurance Company, a Minnesota corporation authorized to do business in New Jersey.

On November 18, 1957 Michael Cafone and Lucille, his wife, purchased from Gardinier his property on Rossmore Place. Gardinier, soon after the conveyance of his property, moved to reside with his son, Clyde, at Mount Pleasant, Pleasantville, N.Y. These facts were corroborated by affidavits of Michael Cafone and Clyde Gardinier. Norman Henry Gardinier continued to reside at Mount Pleasant until his death on November 21, 1958. The decedent had no assets in New Jersey at the time he died.

On July 29, 1959 Torsiello filed a complaint against Norman Henry Gardinier in the Superior Court, Law Division, for personal injuries allegedly resulting from the 1957 automobile accident. The sheriff of Essex County was unable to effect service of the complaint since the return made by the deputy disclosed that the defendant had died. An attempt was then made to effect service of the summons and complaint on the decedent's insuror, but it refused because it had no authority to accept service. Torsiello offered to stipulate that the Ad dammum clause of his complaint would be reduced to coincide with the limits of the policy if service of process would be accepted by the carrier, but this offer was rejected.

On September 14, 1960 Torsiello filed a complaint for the administration of Gardinier's estate with the Essex County Surrogate, alleging that the decedent was domiciled at the Belleville address at the time of his death. On October 13, 1960 the surrogate granted letters of administration to Philip Lindeman II. This judgment recited, Inter alia, that Torsiello was a creditor of Gardinier, 'late of the County of Essex and State of New Jersey * * * (who) died possessed of goods, chattels, rights and credits' of the value of $1,000, and that all other parties entitled to administration 'have been duly noticed and have not appeared.' On October 26, 1960 Torsiello filed an amended complaint in the personal injury action naming Lindeman, the administrator, a party defendant. The following day this complaint was served.

Upon motion by Clyde Gardinier on behalf of his father's estate, an order was entered on March 20, 1961 to show cause why the judgment granting letters of administration to Lindeman should not be set aside. The affidavits of Cafone and Gardinier were received and considered at the argument on the return of the order to show cause. In addition, there was received an affidavit of Lindeman who stated that 'to my knowledge there are no assets of the said estate in the State of New Jersey.' An affidavit of Torsiello's attorney was also received at the oral argument. It stated:

'Upon information and belief, I was further informed that said NORMAN HENRY GARDENIER (sic) was physically and mentally ill by reason of the frailties of human nature due to his age. As a result thereof he was taken to Mount Pleasant, Pleasantville, New York to stay with his relatives.

The said NORMAN HENRY GARDENIER (sic) at that time and place could not manifest any intention to change his domicile from New Jersey by reason of his physical and mental condition which shortly thereafter, some 7 months later, terminated his death.

At the time he left the Town of Belleville, Essex County, New Jersey, he was neither physically or mentally well and could not and did not manifest any intention to change his domicile.'

The affidavit further stated that administration was being sought 'so that service of the summons and complaint (in the personal injury action) could be effected upon decedent's representatives.'

The trial judge denied the application to set aside the surrogate's judgment. In so deciding he relied upon N.J.S. 3A:6--10, N.J.S.A., which provides in pertinent part:

'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.' (Emphasis added)

The trial judge found that the jurisdictional requirements of the statute were satisfied for the reason that the tort claim of Torsiello, a creditor, was an 'evidence of choses in actions in the hands of a resident of this State.' He ruled, apparently as an alternative reason for affirming the Surrogate's judgment, that Gardinier's insurance policy was personal property, on the theory it had its situs in this State at the time of the accident.

Our examination of the issues convinces us that the present appeal is controlled principally by In re Roche, 16 N.J. 579, 109 A.2d 655 (1954), which interpreted N.J.S. 3A:6--10, N.J.S.A. under somewhat similar circumstances. The facts of In re Roche disclose that Roche, who was driving an automobile in New Jersey, and Keefe, his passenger, both suffered fatal injuries as the result of a collision with a truck. Both men were residents of New York. Roche's automobile liability insurance policy was issued in New York by a foreign corporate insuror, also authorized to do business in New Jersey, both at the time of the accident and during the subsequent litigation. The widows were appointed as administratrices of their respective husbands' estates in New York. Mrs. Keefe was then appointed administratrix Ad prosequendum in New Jersey to prosecute an action here against the Roche estate. She then claimed that Roche's liability insurance policy was an asset of his estate in New Jersey within the meaning of N.J.S. 3A:6--10, N.J.S.A. The Superior Court, Chancery Division, refused, however, to appoint an ancillary administrator of the Roche estate to administer the insurance policy in the interest of creditors of the Roche estate. The trial judge held that the policy of insurance was an asset of that estate which was located in the State of New York, rather than in the State of New Jersey. 30 N.J.Super. 572, 105 A.2d 452 (Ch.Div.1954). The obvious purpose of that application was, as here, to secure service of process in New Jersey against the decedent's estate in a personal injury action.

On appeal our Supreme Court affirmed the Chancery Division judgment, holding that:

'* * * there was no 'chose in action' or 'personal property' of the deceased Roche within New Jersey, nor 'the evidence of choses in action in the hands of a resident' of New Jersey within the intendment of the statute, considering its manifest reason and spirit.

It is a jurisdictional Sine qua non of the statutory ancillary administrative function that there be a chose in action or other property of the deceased nonresident 'within' New Jersey, or 'the evidence' of a chose in action 'in the hands of a resident' of New Jersey.

Here, in all seeming the situs of the insurance policy is the domicil of the nonresident decedent at the time of his death. Personal property ordinarily has its situs at the domicil of the owner. Certainly, the situs of this intangible is not in New Jersey; and the insurer is plainly not a 'resident' of New Jersey in the statutory sense.' 16 N.J., at pp. 584--586, 109 A.2d at p. 658.

Preliminarily, we observe that if there can be administration of Gardinier's estate in New Jersey, Torsiello, a New Jersey resident, was a proper party to institute the administration proceedings. N.J.S. 3A:6--10, N.J.S.A., permits a resident who alleges he has a debt or legal claim against a decedent, 'which by the law of this state survives against his representatives,' to request that letters of administration be issued 'to some fit person to be designated by the court.' N.J.S. 2A:15--4, N.J.S.A., provides that if a testator or intestate, during his lifetime, shall have committed any torts in the nature of personal injury or property damage, the person injured thereby may maintain the same action and recover damages against the executors or administrators of the testator or intestate as he might have against the testator or intestate himself. This statute eliminates the now discredited common law rule against Post mortem suits. Long v. Landy, 35 N.J. 44, 53, 171 A.2d 1 (1961). Accordingly,...