Robinson v. Dana's Estate

• Decision Date: 17 September 1934
• Citation: 174 A. 772
• Parties: ROBINSON v. DANA'S ESTATE.
• Court: New Hampshire Supreme Court

174 A. 772

ROBINSON

v. DANA'S ESTATE.

Supreme Court of New Hampshire. Belknap.

Sept. 17, 1934.

Transferred from Superior Court, Belknap County; Young, Judge.

Petition by Richard W. Robinson, administrator, for the the appointment of an administrator of the estate of John Dana. From an order of the Superior Court dismissing petitioner's appeal from an order of the probate court dismissing the petition, the petitioner appeals. Case transferred.

Appointment ordered.

Probate appeal. The appellant claims that his intestate's death was caused by the negligence of the driver of an automobile, of whose estate he seeks the appointment of an administrator, so that he may bring action upon his claim of liability. The car belonged to the driver's adoptive mother and was in use at the time of accident with her consent She held a policy insuring the liability. The insurer is doing business in the state and is subject to service of local process.

Upon the trial of the appeal from the probate court's dismissal of the petition that an appointment be made, the superior court found that the decedent driver was not at any time a resident of the county where administration is sought and left no estate there "unless as a matter of law the protection afforded by said insurance policy is such a property right or interest as will warrant the appointment of an administrator here, and as to that the Court rules that it is not." The appellant excepted to the findings and ruling, and to the ensuing dismissal of the appeal.

Wayne Plummer, of Laconia, and John Sanders and Robert W. Upton, both of Concord, for appellant.

Tilton & Tilton, of Laconia, for Lillian Dana Carroll, the decedent's adoptive mother.

ALLEN, Justice.

Assuming that the evidence has no tendency to show that the decedent left any general estate, the case presents the inquiry whether an alleged liability of a decedent is sufficient to entitle the claimant to require the probate court to appoint an administrator of the decedent's estate when satisfaction, in whole or in part, of the liability upon its determination has been promised under certain conditions to or in behalf of the decedent by a third party, without showing estate of a general character, and when the promisor is within the jurisdiction.

The statute (P. L, c. 293, § 8) to be construed reads as follows: "Probate of the will and granting administration on the estate of a person deceased shall belong to the judge [of probate] for the county in which such person was last an inhabitant; but if such person was not an inhabitant of this state the same shall belong to the judge for any county in which such person had estate, or in which the personal representative or kin of such person has a cause of action."

Administration is thus to be granted "on the estate" of a decedent resident, and, as to a decedent nonresident, in any county where he "had estate." Death alone is not enough to justify the exercise of the appointive authority nor is it permitted by any reason or occasion other than estate. For both resident and nonresident decedents, there must be estate within the legislative meaning of the word. By the Constitution (Const, pt. 2, art, 80), probate courts have jurisdiction in granting administration, to be exercised in such manner as the Legislature may direct. Their jurisdiction is exclusive (Glover v. Baker, 76 N. H. 393, 398, 399, 83 A. 916; Barrett v. Cady, 78 N. H. 60, 64, 96 A. 325), but they "have such powers and only such as the Legislature gives them" (Woodbury's Appeal, 78 N. H. 50, 52, 96 A. 299, 301).

Confirmation of the need of estate is found in the amendatory act (Laws 1905, c. 8), by which the authority to appoint was extended to cases where the administrator or kin have a cause of action. Since the proceeds of actions surviving by statute but not by common law are not assets of the estate (Davis v. Herbert, 78 N. H. 179, 97 A. 879), the amendment implies its need to give authority to appoint in cases where no estate is left but a cause of action with a statutory survival in favor of certain designated beneficiaries exists.

But the prequisite of proof of estate in an appointment is often satisfied by a claim of estate. This follows from the nature of things. When the decedent's title to his only property is in dispute, the probate court does not try the issue as determinative whether an administrator shall be appointed, but appoints one so that the rights of the decedent's estate may not be lost through non-assertion. Appointment or refusal to appoint does not depend upon the probable merits of the decedent's title or claim. It may be thought too doubtful to have appraisal value, but if any one having a proper interest deems it worth while to be asserted, an appointment should be made. The right to prosecute a claim having value if finally proved meritorious is in itself sufficient to meet the statutory test of estate.

By a statute (P. L. c. 301, § 1), any person "suspected of having concealed, embezzled or conveyed away any of the personal estate of a deceased person may, upon complaint of the administrator, * * * be examined, under oath, for the discovery of the same." If there were no other estate, it would hardly be contended that no appointment should be made because it was only suspected there was some. The probate court has no power to find what the examination shows (Dodge v. McNeil, 62 N. H. 168), and the purpose of the statute is only to facilitate reaching possible assets. Providing a method of search, it implies authority to appoint so that the method may be employed.

An administrator may by bill seek discovery of assets and cancellation of fraudulent conveyances by a decedent, so far as necessary to satisfy the claims of the hitter's creditors. Matthews v. Hutchins, 68 N. H. 412, 40 A. 1063; Preston v. Cutter, 64 N. H. 461, 468, 13 A. 874; Janvrin v. Curtis, 63 N. H. 312; Abbott v. Tenney, 18 N. H. 109. These cases hold that the administrator represents the creditors and stands in their right, the decedent having no right to undo the fraud. Since the debtor's death does not defeat the creditors' rights to reach the assets, their right to have an administrator appointed is a necessary incident of their right to reach the assets. The assets are not estate belonging to the decedent at his death and the heir may claim no part of them. But so far as needed to pay debts, they are assets of the estate. It has never been suggested that, if there were no other assets, appointment would not be within the court's power or that proof of the fraud would be essential to the exercise of the power.

If one or more of a number of claimants to property die, the right of a stakeholder that there should be administrators for the estates of the decedent claimants would not be defeated by lack of proof of property belonging to them.

The statute is to be examined in the light of the respective jurisdictions of the probate and other courts. The limitations of probate jurisdiction which bar its courts from passing on claims...