In re Rogers' Estate

• Decision Date: 06 March 1948
• Docket Number: 37039.
• Citation: 190 P.2d 857,164 Kan. 492
• Parties: In re ROGERS' ESTATE. v. EDWARDS. ROGERS
• Court: Kansas Supreme Court

190 P.2d 857

164 Kan. 492

In re ROGERS' ESTATE.

ROGERS v. EDWARDS.

No. 37039.

Supreme Court of Kansas

March 6, 1948

Appeal from District Court, Marshall County; Edgar C. Bennett Judge.

Proceeding in the matter of the estate of Ernest T. Rogers, deceased, on petition of Harve S. Edwards, administrator of the estate of Herbert S. Edwards deceased, for the appointment of an administrator of the estate of nonresident decedent which was opposed by Luna B. Rogers, executrix of the estate of Ernest T. Rogers, deceased, on appointment by the Superior Court of Durham County, North Carolina. From an order appointing administrator, Luna B. Rogers, executrix, etc., appeals.

Judgment reversed with directions.

HARVEY C. J., dissenting.

Syllabus by the Court.

1. For the purpose of administering the estate of a nonresident in Kansas it is necessary that he shall have left estate in some county of this state to be administered. (G.S.1947 Supp 59-2203.)

2. Under the established doctrine of this state the situs of personal property is transitory and follows its owner wherever he may be but on his death the situs ceases to be transitory and becomes fixed at the domicile of the owner at the time of his death.

3. An ordinary indemnity automobile policy, such as described in the opinion, creates no liability of the insurer to the insured until the liability of the insured is established by one of the methods stated in the policy. The rights of third parties against the insurer are no greater than the rights of the insured or than those of the insured's personal representative.

4. If the rights of the insured against the insurer, under an ordinary indemnity policy, constitute assets of the nonresident insured's estate, prior to the establishment of liability of such estate to third persons, the situs of such assets is at the domicile of the nonresident.

5. The mere fact a foreign insurance company which issued the policy is also authorized to transact business in Kansas does not change the situs of such asset, if it be an asset prior to the establishment of the insured's liability, from the domicile of the nonresident to the state of Kansas.

6. A proceeding to appoint an administrator in Marshall county of a deceased nonresident's estate on the ground such decedent had an automobile indemnity policy which was in force at a time when he is alleged to have wrongfully caused the death of a resident of Marshall county in the operation of his automobile on a public highway in Saline county and that such policy constitutes estate of the nonresident in Marshall county, examined and held, if the policy constitutes estate it was not left in Marshall county to be administered but that the title thereto is in the domiciliary executrix of the nonresident's estate.

W. S. Norris, of Salina (G. A. Spencer, of Salina, and Robert E. Ferguson, of Marysville, on the brief), for appellant.

Walter T. Griffin, of Marysville (L. L. McLaughlin, of Marysville, on the brief), for appellee.

WEDELL Justice.

This was a proceeding in the probate court of Marshall county by the administrator of a decedent's estate in that county for the appointment of an administrator for the estate of a nonresident decedent. The petitioner prevailed in both the probate and district courts and the executrix of the estate of the nonresident, appointed in North Carolina, has appealed to this court. The primary question is whether an administrator was properly appointed.

The action in the district court was tried on stipulated facts which, in substance, and insofar as material, are: Ernest T. Rogers during his lifetime was at all times domiciled in Durham county, North Carolina, and had never been a resident of Kansas; he had never been within the confines of Marshall county; he was temporarily absent from North Carolina as a member of the United States Army; in the latter capacity he was temporarily stationed at the Smoky Hill Army Air Field in Saline county, Kansas; Herbert S. Edwards was a resident of Marshall county, Kansas; he died as a result of injuries sustained in a motor vehicle collision on U.S. highway 81 in Saline county on November 30, 1944; three vehicles were involved in the collision, one driven by Rogers, the other by Edwards and a third by an employee of certain residents of Nebraska; Edwards died six days after the collision; Rogers, while a resident of and domiciled in Durham county, North Carolina, was killed in the Pacific war theater on October 27, 1945; in April, 1946, Rogers' will was duly probated and Luna B. Rogers was appointed executrix of his estate by the superior court of Durham county, North Carolina; on the date of the collision Rogers had a written contract of indemnity insurance with the American Indemnity Company which covered liability for personal injuries and damage to property resulting to others from the operation of the automobile he operated; on the date of the accident the policy was in full force and effect but was later cancelled by the insurer with Rogers' acquiescence as of March 13, 1945; the policy was one of ordinary automobile indemnity form and provided: '6. Action against Company--Coverages A and B. No action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all the terms of this policy, nor until the amount of the Insured's obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company.'

Other stipulated facts, in substance, are: There has been no determination of any obligation or liability of Rogers, or of his estate, for injuries sustained in the automobile collision; the insurer is a Texas company duly organized and admitted to transact insurance business in Kansas; the commissioner of insurance of the state of Kansas is the designated process agent of the insurer; Rogers at no time had any tangible assets or estate of any kind or character in Kansas unless the indemnity policy could be said to be within this state and to constitute an asset of the estate; Rogers had never been liable in Kansas for any debts, liabilities or obligations unless the claim against Rogers' estate for the wrongful death of Edwards constitutes a claim and makes the Edwards' estate a creditor of Rogers' estate; no one other than the petitioner has applied for administration of Rogers' estate in Kansas; all of Rogers' heirs are nonresidents of Kansas; the probate court of Marshall county appointed R. O. Crouse as administrator c. t. a. of the Kansas estate of Rogers, deceased.

Was an administrator for the nonresident decedent's estate properly appointed? The pertinent portion of G.S.1947 Supp. 59-2203 provides: 'Proceedings for the probate of a will or for administration shall be had in the county of the residence of the decedent at the time of his death; if the decedent was not a resident of this state, proceedings may be had in any county wherein he left any estate to be administered. (Our italics.)

The precise question presented is whether this indemnity policy, under the stipulated facts, constitutes 'estate' which the insured left in Kansas to be administered. It is not contended the policy itself was on deposit anywhere in this state at the time of the insured's death or at any other time.

The answer depends upon whether (1) the indemnity policy, prior to the establishment of the insured's liability for damages, by judgment or agreement, constitutes an asset of the insured's estate; and (2) if it does, is the situs of that asset in Kansas after the death of the insured or does its situs, upon his death, become fixed in the state of his domicile? Mamfestly, if its situs is not in Kansas the insured left no 'estate' in any county in Kansas to be administered. Appellant asserts both questions must be answered adversely to the appellee. She contends the second question, if not both, has been definitely settled by our own decisions. Appellee contends the policy is an asset and that its situs should be declared to be in Kansas for the purpose of having an administrator of the nonresident's estate appointed here. His object, of course, is to bring an action for damages in this state instead of suing the executrix of Rogers' estate in North Carolina. To do this he would be required to obtain valid service on a proper person in this state and therefore sought the appointment of an administrator. In support of his contentions appellee leans heavily on decisions from other jurisdictions.

Touching the first question appellant contends that in order to justify the appointment of an administrator in this state the estate left here by the nonresident for administration must be something of a tangible nature, citing Perry, Adm'r, v. St. Joseph & W. R. Co., 29 Kan. 420, 423. The nonresident had no assets in this state and we held a recovery, if any, in a wrongful death case would not inure to his estate but only to the benefit of his widow and children or next of kin and, therefore, such cause of action did not constitute estate and the appointment of an administrator for such estate was invalid. No insurance policy was involved.

Appellant however, further asserts the policy, under the admitted facts, cannot constitute a present asset of the insured's estate anywhere. In support she cites our decisions holding an insurer, under the terms of this policy, is merely an indemnitor and as such can only be subjected to judgment on the policy after liability of the insured for damages has been finally determined. We have so held. A few of the cases are Schoonover v. Clark, 155 Kan. 835, 837, 130 P.2d 619; Lang v. Underwriters at Lloyd's, 157 Kan. 314, 319,...