159 S.E.2d 509 | N.C. | 1968
In the Matter of Paul B. EDMUNDSON, Jr., Administrator of the Estate of Sandra Lou Walz, Deceased.
Supreme Court of North Carolina.
*511 W. Powell Bland, Goldsboro, for petitioner appellant Grange Mutual Casualty Company.
Taylor, Allen, Warren & Kerr, Goldsboro, for respondent appellee Elizabeth G. Kirchner.
BOBBITT, Justice.
The petition for appointment filed by Mr. Kerr must be considered the petition of Kirchner, his client; and the petition for removal filed by Mr. Bland must be considered the petition of Casualty Company, his client.
The domicile and residence of Sandra were in Ohio. The domiciliary administration there, in which the 1963 Corvair "was duly disposed of," was completed April 21, 1964. The petition for appointment in Wayne County, North Carolina, of an ancillary administrator was filed June 15, 1966.
G.S. § 28-1 provides that the clerk of the superior court of each county has jurisdiction, within his county, to grant letters of administration, in cases of intestacy, "(4) Where the decedent, not being domiciled in this State, died in the county of such clerk, leaving assets in the State, or assets of such decedent thereafter come into the State." (Our italics.)
The term "assets," as used in G.S. § 1-28(3) and in G.S. § 1-28(4), includes intangibles. Cannon v. Cannon, 228 N.C. 211, 45 S.E.2d 34; In re Will of Brauff, 247 N.C. 92, 100 S.E.2d 254; In re Scarborough, 261 N.C. 565, 135 S.E.2d 529.
The policy issued by the Casualty Company to Sandra contains provisions requiring the Casualty Company to discharge, within the limits specified therein, Sandra's legal liability for personal injuries and property damages caused by the negligent operation of her car. Nothing else appearing, we must assume the policy required the Casualty Company to defend at its own expense suits instituted against Sandra to determine and enforce any alleged legal liability growing out of the operation of her car, and that the benefits of the policy accompanied Sandra wherever the car was operated, including her operation thereof in Wayne County, North Carolina. Unquestionably, this policy was an asset of Sandra during her lifetime and an asset of her estate upon her death. First Union Nat. Bank of North Carolina v. Hackney, 266 N.C. 17, 22, 145 S.E.2d 352, 357.
The personal injury action Kirchner asserts is transitory. Alberts v. Alberts, 217 N.C. 443, 8 S.E.2d 523; Bogen v. Bogen, 219 N.C. 51, 12 S.E.2d 649. The appointment in Wayne County of an ancillary administrator of Sandra's estate was a prerequisite to the institution and maintenance thereof. If Edmundson's appointment is valid, the Casualty Company, upon the facts stipulated and nothing else appearing, would be obligated to defend the pending suit and, within the limits specified by its policy, to discharge any legal liability of Sandra established therein. The question is whether, upon Sandra's death, the policy is an asset in North Carolina within the meaning of G.S. § 28-1(4).
*512 The potential right of an administrator of Sandra's estate against the Casualty Company is a chose in action, an intangible asset. As stated by Denny, J. (later C. J.), in Cannon v. Cannon, supra: "(A) simple debt due a decedent's estate, which is being administered in a foreign jurisdiction, constitutes a sufficient asset upon which to base a proceeding for the appointment of an ancillary administrator. (Citations) The debt is an asset where the debtor resides, even though a note has been given therefor, without regard to the place where the note is held or where it is payable. (Citation)"
The Casualty Company, the debtor, is an Ohio corporation. However, according to the great weight of authority, the deceased insured's potential right of exoneration constitutes a sufficient asset to support the appointment of an (ancillary) administrator in the state where the alleged liability of the insured was incurred and where such administrator can obtain service of process on the insurer and thereby enforce the insurer's liability to the estate of the deceased. Robinson v. Dana's Estate, 87 N.H. 114, 174 A. 772, 94 A.L.R. 1437; Gordon v. Shea, 300 Mass. 95, 14 N.E.2d 105; In re Vilas' Estate, 166 Or. 115, 110 P.2d 940; Furst v. Brady, 375 Ill. 425, 31 N.E.2d 606, 133 A.L. R. 558; In re Breese's Estate, 51 Wash.2d 302, 317 P.2d 1055; Miller v. Stiff, 62 N.M. 383, 310 P.2d 1039; Kimbell v. Smith, 64 N.M. 374, 328 P.2d 942; Campbell v. Davis, 274 Ala. 187, 145 So. 2d 725 (1962); In re Riggle's Will, 18 Misc. 2d 988, 188 N.Y.S.2d 622; In re Kresovich's Estate, 168 Neb. 673, 97 N.W.2d 239; Tweed v. Houghton, 103 Ga.App. 57, 118 S.E.2d 496; In re Preston's Estate, 193 Kan. 145, 392 P.2d 922, overruling In re Estate of Rogers, 164 Kan. 492, 190 P.2d 857; In re Estate of Gardinier, 40 N.J. 261, 191 A.2d 294, overruling In re Roche, 16 N.J. 579, 109 A.2d 655. See Annotation, 67 A.L.R. 2d 936, et seq., superseding 94 A.L.R. 1441, supplemented in 133 A. L.R. 565.
The factual situation in In re Breese's Estate, supra, is similar to that now under consideration with one exception. There it appeared affirmatively that the insurer had been licensed to do business in the State of Washington and had appointed the Commissioner of Insurance to accept service of process. Rosellini, J., speaking for the Supreme Court of Washington, said: "Justice and convenience are served by the conclusion we reach that a liability, such as the one involved in this case, exists wherever it can be enforced and is therefore an `asset' sufficient to support the appointment of an administrator, even though it is the only asset subject to his administration." (Our italics.)
In In re Scarborough, supra, a resident of Michigan, en route to Florida, died from asphyxiation in a motel room in South Carolina. Domiciliary administration was in Michigan. The question was whether the Clerk of the Superior Court of Mecklenburg County, North Carolina, had authority to appoint an ancillary administrator. As asserted cause of action for wrongful death against a defendant upon whom service of process could be had in Mecklenburg County was the only asset of decedent's estate alleged to have a situs in North Carolina. The appointment was held valid. This Court, in opinion by Rodman, J., said: "The fact that a personal representative could obtain a judgment in personam on the cause of action which arose in South Carolina was sufficient to authorize the Clerk of the Superior Court of Mecklenburg County to appoint an ancillary administrator."
Appellee directs our attention to In re Leigh's Estate, 6 Utah 2d 299, 313 P.2d 455. A collision in Utah resulted in injuries to a Utah resident and death to a resident of Minnesota. The Utah resident, seeking to assert a personal injury action, obtained the appointment of an administrator of the estate of the Minnesota resident in the Utah county where the collision had occurred. A Wisconsin insurance company had issued a liability policy to the deceased Minnesota resident. The Wisconsin insurer had never qualified to do business and was not doing business in Utah. Notwithstanding, the Supreme Court of Utah upheld the appointment. *513 It was stated that, under the Utah statute, "no property within this State is necessary for the appointment and functioning of an administrator within this State." In this respect, G.S. § 28-1(4) is quite different from the Utah statutes.
In our opinion, and we so hold, the liability insurance policy was an asset in North Carolina within the meaning of G.S. § 28-1(4) if, but only if, the Casualty Company was qualified to do business in this State or otherwise subject to service of process herein. The "Agreed Statement of Facts" is silent as to this essential and determinative fact.
Paragraph 13 of the "Agreed Statement of Facts" reads as follows: "That the agreed statement of facts stipulated herein are all of the facts necessary for the court to make its decision upon the petition of Grange Mutual Casualty Company to remove the said Administrator." We do not agree. "An agreed statement must contain every essential element without any omission, * * *." 83 C.J.S. Stipulations § 10f(9), p. 22. Whether the facts stipulated include all facts necessary to decision is a question of law. "(W)hile the parties to an action or proceeding may admit or agree upon facts they cannot make admissions of law which will be binding upon the courts." Moore v. State, 200 N.C. 300, 156 S.E. 806; U Drive It Auto Co. v. Atlantic Fire Insurance Co., 239 N.C. 416, 419, 80 S.E.2d 35, 38; 83 C.J.S. Stipulations § 10e, p. 14; 50 Am.Jur., Stipulations § 5.
The applicable rule is as follows: "When a case is submitted for decision on stipulated facts, and no evidence is offered, the court should not proceed to determine the cause unless all facts essential to a determination of the crucial issues raised by the pleadings are included in the stipulations. Rather, in such case, the court should proceed to trial to determine upon evidence the crucial factual issues not covered by the stipulations. In the instant case, the court erred in failing to follow this procedure." Swartzberg v. Reserve Life Insurance Co., 252 N.C. 150, 157, 113 S.E.2d 270, 277. See also City of New Bern v. White, 251 N.C. 65, 110 S.E.2d 446, and cases cited.
For the reasons stated, the judgment of the court below is vacated and the cause remanded to the end that there may be a determination as to whether the Casualty Company was qualified to do business in this State or otherwise subject to service of process herein; and, after such factual determination has been made, for further hearing and decision in the light of the principles of law stated herein.
Judgment vacated and cause remanded.
HUSKINS, J., took no part in the consideration or decision of this case.
