Riggle's Estate, In re

• Decision Date: 01 March 1962
• Parties: , 181 N.E.2d 436 In the Matter of the ESTATE of Robert A. RIGGLE, Deceased. Mabel K. Wells, Respondent; Mabel Riggle, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 416

226 N.Y.S.2d 416

11 N.Y.2d 73, 181 N.E.2d 436

In the Matter of the ESTATE of Robert A. RIGGLE, Deceased Mabel K. Wells, Respondent; Mabel Riggle, Appellant.

Court of Appeals of New York.

March 1, 1962.

John B. Loughran, Walter G. Evans and William F. Laffan, Jr., New York City, for appellant.

Harold Sylvan and Elliott J. Mermelstein, New York City, for respondent.

VAN VOORHIS, Judge.

Mabel K. Wells, of Nassau County, New York State, has obtained the issuance of ancillary letters with the will annexed in the estate of Robert A. Riggle, deceased, late of the State of Illinois. Her purpose in applying for the issuance of these letters is to continue against the estate an automobile negligence action which she commenced against the decedent during his lifetime by personal service of the summons and complaint upon him in the State of New York.

Riggle was the driver of the automobile in which she was a passenger when injured in the State of Wyoming. Under the Federal Constitution her action cannot be continued generally in personam against the Illinois executor of Riggle (Helme v. Buckelew, 229 N.Y. 363, 128 N.E. 216; McMaster v. Gould, 240 N.Y. 379, 148 N.E. 556, 40 A.L.R. 792). It is necessary to a continuance of the action that an ancillary administrator with the will annexed be appointed and served in New York State, which can only be done if Riggle left real or personal property in New York State (Surrogate's Court Act, § 45, subd. 3) and, if judgment is obtained, it can be executed only against such property. The only property claimed to have been left by Riggle in New York State is the personal obligation of an indemnity insurance carrier to defend him as an additional insured under a liability policy which was issued in Nassau County, New York, upon this automobile to its owner, Walter Wells. It contained a clause covering Riggle, as a person who operated the Wells automobile with the consent of the owner at the time of the accident.

Under section 47 of the Surrogate's Court Act it is provided that, for the purpose of conferring jurisdiction upon a Surrogate's Court, 'a debt owing to a decedent by a resident of the state' is regarded as personal property situated within the county where the debtor resides. This section embodies what has long been case law in this State (Fox v. Carr, 16 Hun 434). An insurance policy is not a specialty, like a bond, promissory note or other negotiable instrument, and it is held that this liability insurance policy, even though no judgment has yet been obtained against Riggle or his estate, constituted Riggle as a creditor and the insurance carrier as a debtor within the broad meaning of this provision for this purpose (Gordon v. Shea, 300 Mass. 95, 99-100, 14 N.E.2d 105, citing Restatement, Conflict of Laws, § 467, comment a). It remains to be considered whether the insurance carrier, incorporated in Illinois but authorized to do business and be sued in New York, is to be deemed a resident of this State in Nassau County where the policy was issued and where the owner of the vehicle and the injured plaintiff reside.

The main reason on account of which the New York law regards the residence of the debtor as the place where the asset is situated, instead of having its situs where the creditor resides, is that otherwise it would be impossible to obtain judgment against the debtor who has to be sued in a jurisdiction where he can be found. Insurance companies are usually authorized to do business in many States, and if this Illinois carrier is held to have had a residence for this purpose in Nassau County, New York, notwithstanding that it has been organized under the laws of another State, it follows that most insurance companies would be construed for this purpose as having a residence in the counties of many States. That circumstance was regarded as sufficient reason to refuse the issuance of ancillary letters under similar circumstances by the courts of Colorado and Kansas (Wheat v. Fidelity & Cas. Co., 128 Colo. 236, 243, 261 P.2d 493; Matter of Rogers, 164 Kan. 492, 500, 190 P.2d 857). Michigan and New Jersey have taken a somewhat similar position (Olson v. Preferred Auto Ins. Co., 259 Mich. 612, 244 N.W. 178; Matter of Roche, 16 N.J. 579, 109 A.2d 655). Some of those cases are distinguishable. Kansas for instance, makes residence of the insured the situs of the chose in action, contrary to our law.

Illinois, Iowa, Massachusetts, New Hampshire, Oregon and Texas adopt or lean toward the view that ancillary letters will issue under the circumstances here presented (Furst v. Brady, 375 Ill. 425, 31 N.E.2d 606, 133 A.L.R. 558; Liberty v. Kinney, 242 Iowa 656, 47 N.W.2d 835; Gordon v. Shea, 300 Mass. 95, 14 N.E.2d 105, supra; Robinson v. Carroll, 87 N.H. 114, 174 A. 772, 94 A.L.R. 1437; Matter of Vilas, 166 Or. 115, 110 P.2d 940; Davis v. Cayton (Tex.Civ.App.), 214 S.W.2d 801).

Regarding life insurance, this court and the United States Supreme Court have taken the view that a policy constitutes 'personal property within the state' where issued in this State by a foreign insurance company authorized to do business in this State (Morgan v. Mutual Benefit Ins. Co., 189 N.Y. 447, 82 N.E. 438; New England Mut. Life Ins. Co. v. Woodworth, 111 U.S. 138, 4 S.Ct. 364, 28 L.Ed. 379). In the Morgan case, service by publication upon nonresidents was held to have been authorized by section 438 of the Code of Civil Procedure, then in force, where the complaint demanded judgment that they be excluded from 'a vested or contingent interest in or lien upon, sepcific real or personal property within the state'. The insurance policy, issued here, was held to constitute such an asset. The court said (189 N.Y. p. 454, 82 N.E. p. 440) concerning this: 'As to such a claim, the insurance company should be treated as a domestic insurance company and as domiciled in this state. The situs of the debt would consequently be here, and the action is one to define and enforce an interest in specific personal property within the state within the meaning of the Code provision quoted. Whenever a question as to the situs of a similar claim against an insurance company doing business in a state pursuant to the statutes thereof has been directly involved in this court or in the federal courts, and it has been sought to uphold the situs of the claim in the state where the contract was made, it has been sustained.'

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