Gordon v. Shea
| Decision Date | 29 March 1938 |
| Citation | 300 Mass. 95,14 N.E.2d 105 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | KATIE B. GORDON v. ANNE E. SHEA, administratrix,& another. |
January 4, 31 1938.
Present: RUGG, C.
J., DONAHUE, QUA DOLAN, & COX, JJ.
Probate Court Jurisdiction. Executor and Administrator, Appointment, What are assets of estate. Jurisdiction, Estate of decedent. Conflict of Laws. Words, "Creditors."
Upon the death of a nonresident defendant in a pending action of tort for personal injuries, the plaintiff was a "creditor" of the deceased within the meaning of G.L. (Ter. Ed.) c. 193 Section 1, Third.
Upon the death of the defendant in an action pending in this Commonwealth against a nonresident for injuries resulting from his operation of an automobile here, his right as the insured under a policy of motor vehicle liability insurance issued by a foreign company amenable to process here was an asset of his estate warranting the appointment of an administrator under G.L. (Ter. Ed.) c. 215, Section 3.
PETITION, filed in the Probate Court for the county of Middlesex on February 3, 1937.
The petitioner appealed from a decree by Monahan, J., dismissing the petition.
E. J. Flynn, for the petitioner, submitted a brief.
W. F. Howard, (G.
M. French of New Hampshire, with him,) for the respondents.
This is a petition for the revocation of a decree entered on December 15, 1936, by the Probate Court of Middlesex County, whereby Anne E. Shea of Lowell in this Commonwealth was appointed administratrix of the estate of Samuel S. Gordon, late of Cranston, Rhode Island, deceased, intestate. The petitioner is a resident of Providence, Rhode Island, and is the widow of said Samuel S. Gordon. The petition is based on the alleged grounds that said Samuel S. Gordon was domiciled and resident in Rhode Island, that he did not own any real estate, personal property or tangible or intangible interests in any property in this Commonwealth, and that, therefore said Probate Court lacked jurisdiction to make the appointment.
The trial judge, at the request of the appellant, made a report of material facts in substance as follows: On July 9, 1935, an accident occurred in Chelmsford in this Commonwealth between two automobiles, one owned and operated by said Samuel S. Gordon, and the other owned by Charles H. Noyes of Nashua, New Hampshire, and operated by Mabel R. Noyes, also of Nashua. In this accident, Charles H. Noyes, his wife, Caroline B. Noyes, and his daughter, Mabel R. Noyes, all suffered personal injuries and Charles H. Noyes sustained property and consequential damages. Samuel S. Gordon was insured against liability for the payment of compensation for such injuries and damages under the usual form of motor vehicle liability contract of insurance entered into in Rhode Island with the Banker's Indemnity Insurance Company of Newark, New Jersey, an insurance company authorized to do business in this Commonwealth and amenable to process here. In August, 1935, Mabel R. Noyes, Caroline B. Noyes and Charles H. Noyes each brought an action of tort in the District Court of Lowell in this Commonwealth against Samuel S. Gordon. In these three actions, service was made under the statutes of this Commonwealth upon the registrar of motor vehicles. The defence of these actions was prosecuted by attorneys in behalf of the defendant. While these actions were pending, the defendant, still a resident of Rhode Island, died, intestate, leaving his widow, the petitioner, a resident of Rhode Island, as his sole heir and next of kin. The plaintiffs in the three actions of tort were not informed of the death of the defendant Gordon until October, 1936, whereupon they immediately filed suggestion of his death in those actions.
The petitioner Katie B. Gordon neglected and refused for more than thirty days to petition in this Commonwealth for the appointment of an administrator of said estate. On October 21, 1936, Mabel R. Noyes as creditor of said estate filed a petition in the Probate Court for Middlesex County for the appointment of an administrator of said estate, of which due notice was given. Notice was also given to the insurance company, but its attorneys, although afforded reasonable opportunity to object, declined to enter into the proceedings or to make any suggestion of a person to be appointed to settle the estate. The trial judge "found that there were assets in the estate of said Samuel S. Gordon in this Commonwealth and entered a decree allowing the petition for administration appointing the said Anne E. Shea of Lowell" as administratrix. Subsequently to the appointment of the administratrix, each of the plaintiffs in the three tort actions recovered judgment against the defendant. On December 24, 1936, an inventory was filed by the administratrix in which she stated that there were no assets. This was an error. On February 3, 1937, Katie B. Gordon filed the present petition to vacate and revoke the decree appointing the administratrix. The allowance of this petition was contested by Anne E. Shea and by Mabel R. Noyes.
The present petition was heard on June 14, 1937. The petitioner, the respondent, Mabel R. Noyes, the alleged creditor, and the insurance company participated in that hearing. The trial judge found that "the right of exoneration and indemnity under the policy of insurance issued" to said Samuel S. Gordon while driving his automobile in this Commonwealth "against liability for the payment of damages for personal injuries, for property damage, and for consequential damage," was property in this Commonwealth and an asset of the estate of said Samuel S. Gordon. The trial judge found that the court had jurisdiction to appoint the administratrix and dismissed the present petition. The appeal of the petitioner brings the case here.
It is the contention of the petitioner that the Probate Court had no jurisdiction to appoint an administratrix. No one was appointed to take the testimony. There is no report of the evidence. The case must be decided on the facts reported by the trial judge. Unless the decree of appointment was unwarranted on the record, or is inconsistent as matter of law with the facts reported, the decree must stand. Lannin v. Buckley, 256 Mass. 78 , 81. "The only question before us is whether the specific facts stated are necessarily inconsistent with the general conclusion reached." Cleveland v. Hampden Savings Bank, 182 Mass. 110 , 111. Plumer v. Houghton & Dutton Co. 277 Mass. 209, 215.
The petition for the appointment of an administrator of the estate of Samuel S. Gordon was filed by Mabel R. Noyes, who was a plaintiff in one...
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