11 N.Y.2d 73 | NY | 1962
Lead Opinion
Mabel K. Wells, of Nassau County, New York State, has obtained the issuance of ancillary letters with the Avill 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.
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 Biggie or his estate, constituted Biggie 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, 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 judg
Illinois, Iowa, Massachusetts, New Hampshire, Oregon and Texas adopt.or loan toward the view that ancillary letters will issue under the circumstances here presented (Furst v. Brady, 375 Ill. 425; Liberty v. Kinney, 242 Iowa 656; Gordon v. Shea, 300 Mass. 95, supra; Robinson v. Carroll, 87 N. H. 114; Matter of Vilas, 166 Ore. 115; 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; New England Mut. Life Ins. Co. v. Woodworth, 111 U. S. 138). 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, specific real or personal property within the state ”. The insurance policy, issued here, was held to contitute such an asset. The court said (p. 454) 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
In the New England Mut. Life Ins. Co. case (supra), the United States Supreme Court held that a policy issued by a company incorporated in another State, payable to the insured, her executors or administrators, is an asset for the purpose of founding administration upon her estate in another State in which the corporation has done business, at and since the time of her death, and, as required by the statutes of that State, has had an agent on whom process against it might be served. In that decision letters of administration were granted in Illinois to a surviving husband domiciled in Illinois where the only asset in Illinois was an insurance policy on the life of his deceased wife who died a resident of New York State, on the basis that the obligation of the policy had a situs in Illinois.
From language in section 47 of the Surrogate’s Court Act that a debt owing by a domestic corporation is regarded as personal property situated within the county where the principal office of the corporation is situated, appellant argues that a foreign corporation must necessarily have its residence exclusively in its State of incorporation. This would be true in the instance of most corporations, but an exception appears to have been recognized for the purpose of issuing letters on estates of deceased persons in the case of insurance companies authorized to do business in this State even though incorporated elsewhere, at least where the policies have been issued in this State.
It may well be, as intimated in Fox v. Carr (16 Hun 434, supra), that an insolvent insurance company would be held to have only one place of residence for the parpóse of dissolution and winding up of its affairs. Concerning that we express no opinion. Neither should New York State be allowed to become an asylum in which to bring actions in which our citizens are not interested, merely for the reason that our statute authorizing actions for causing the death of another may be more
The order appealed from should be affirmed, with costs.
Dissenting Opinion
I dissent. The jurisdiction of the Surrogate’s Court is purely statutory (Matter of Runk, 200 N. Y. 447, 456). Section 47 of the Surrogate’s Court Act provides, so far as here relevant: “ 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; and a debt owing to him by a domestic corporation * * * is regarded as personal property situated within the county where the principal office of the corporation is situated.” (Emphasis supplied.) Assuming the obligation of the insurance company to defend and contingently indemnify is a debt owing to decedent, it is not owing “ by a resident of the state ” nor “ by a domestic corporation”. The (American) Lumbermen’s Mutual Casualty Company of Illinois is concededly a foreign corporation, with its principal place of business in Illinois. In a kindred situation Surrogate Foley held that a foreign corporation, though authorized to do business in this State, cannot be deemed a resident under section 47 of the Surrogate’s Court Act, and that a claim against such foreign corporation ‘ ‘ furnishes no basis for the exercise of jurisdiction.” (Matter of Cooper, 32 Misc 2d 117.) Nor is the insurance policy an instrument for the payment of money only, as defined in section 47 of the Surrogate’s Court Act. The courts have no right to decree jurisdiction where it has not been granted by the Legislature.
Accordingly, I would reverse and dismiss the petition for ancillary administration.
Chief Judge Desmond and Judges Dye, Fuld, Bubke and Fosteb concur with Judge Van Voobhis; Judge Fbobssel dissents in an opinion.
Order affirmed.