Milmoe v. Toomey

• Decision Date: 13 January 1966
• Docket Number: No. 19485.,19485.
• Citation: 356 F.2d 793,123 US App. DC 40
• Parties: Cornelius M. MILMOE, Administrator of the Estate of Margaret M. Milmoe, Deceased, Appellant, v. John J. TOOMEY, Ancillary Administrator, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

123 US App. DC 40, 356 F.2d 793 (1966)

Cornelius M. MILMOE, Administrator of the Estate of Margaret M. Milmoe, Deceased, Appellant, v. John J. TOOMEY, Ancillary Administrator, Appellee.

No. 19485.

United States Court of Appeals District of Columbia Circuit.

Argued December 10, 1965.

Decided January 13, 1966.

Mr. James F. Bromley, Washington, D. C., for appellant. Mr. Hugh Lynch, Jr., Washington, D. C., was on the brief.

Mr. Robert E. Simpson, Washington, D. C., for appellee. Mr. Gerald J. O'Rourke, Jr., Washington, D. C., was on the brief.

Before WRIGHT, McGOWAN and LEVENTHAL, Circuit Judges.

McGOWAN, Circuit Judge.

This appeal challenges the jurisdiction of the District Court, sitting in probate, to appoint an ancillary administrator by reason of an asset in the District of Columbia consisting solely of the protection against liability afforded by an automobile insurance policy. The precise nature of the contention made here can be understood only against the somewhat unusual factual background, which is reviewed immediately hereinafter. We conclude that jurisdiction did exist, and we leave the appointment undisturbed.

I

The decedent was a girl who, for some time prior to June 6, 1964, had been residing in Washington while working for the Peace Corps. On the morning of that day, in company with a fellow employe, she rented a Hertz car and set out for her family home in New York State. In Lebanon County, Pennsylvania, during the early afternoon, the rented car was in a collision, and both of its occupants were killed. Also dying in the crash were a married couple from Illinois who were in the other car; and a minor child with them was seriously injured.

The rental agreement executed by the decedent with Hertz recites her "local address" in Washington to be 3336 P Street. An affidavit submitted in the District Court by her father asserts, however, that before leaving Washington the decedent had resigned from the Peace Corps and given up her P Street apartment; and that her purpose was to return to the family home in New York to live. Execution of the rental agreement with Hertz operated to bring the decedent directly within the coverage of a liability policy issued to Hertz by Royal Indemnity Company. Although not District of Columbia corporations, both Hertz and Royal Indemnity are doing business in the District so as to be subject to suit here.

Appellee O'Keefe is the Illinois administrator of the estate of the deceased Illinois couple. He filed a petition in the District Court reciting the rental agreement and the accompanying insurance coverage, and asked that letters of administration issue to a disinterested attorney in order that suit might be brought against such appointee in the District on behalf of the deceased Illinois couple and their surviving minor child. Appellee Toomey is the ancillary administrator appointed in response to this petition.

Appellant, the decedent's father, appeared in the District Court to oppose the appointment. It was urged by him that the decedent was, at the time of her death, domiciled in New York, and that any relationship of significance between her and the District of Columbia had ended before her death. As the administrator of his daughter's estate duly appointed in New York, appellant represented that he could be sued in New York or in Pennsylvania, as could Hertz and the estate of the decedent's companion on the fatal journey. He further asserted that the insurance policy running to Hertz and its customers was nation-wide in character, and that its benefits could be claimed in both New York and Pennsylvania.

At the hearing before the District Court it appeared that a suit had in fact been filed in Pennsylvania; and, promptly after the appointment of the ancillary administrator in the District of Columbia, suit was brought against him in the District Court. So far as we are aware, these actions remain pending before trial.

II

The immediately relevant statute is Title 20 D.C.Code § 201, which provides as follows:

"On the death of any person leaving real or personal estate in the District, letters of administration on his estate may be granted, on the application of any person interested, on proof satisfactory to the probate court, that the decedent died intestate."

The District Judge conceived that the controversy before him was to be resolved by a scrupulous attention to the terms of this statute; and that,...