Opinion
No. 3433.
Decided December 7, 1943.
The appointment of an ancillary administrator by the Probate Court is not open to collateral attack in a probate appeal from the disallowance of a claim for negligence by a commissioner of insolvency. The statute (R. L., c. 346, s. 8) relating to jurisdiction of Probate Courts in the appointment of an ancillary administrator contains no requirement as to the amount of the estate which a deceased must have in order to justify the appointment of a personal representative in this State. A policy of liability insurance issued by a company not licensed to do business in this State, but which subsequent to the death of the insured became so licensed, is an asset of the insured's estate within this jurisdiction with which an ancillary administrator is properly charged. The Statute of Limitations (R. L., c. 355, s. 11) is no bar to an action where the plaintiff's claim had been presented to and disallowed by a commissioner of insolvency within the statutory period.
PROBATE APPEALS, from the disallowance of the plaintiff's claims for damages arising out of the deaths of his intestates while they were passengers in an automobile owned and operated by B. Frank Stodd, the defendant's intestate, which was in a collision with a train of the Boston Maine Railroad on September 4, 1938, as a result of which John Thomas Power, Marie Adele Power, Robert John Stodd and Sophie Stodd were killed. Hearing by the Court.
From the agreed statement, the following facts appeared. Frank Stodd was a resident of Plainfield, New Jersey, residing temporarily in the State of New Hampshire during his vacation. The only property of the said B. Frank Stodd in this State at the time of his death on September 4, 1938, was his wrecked automobile, which has ever since been located at Meredith. B. Frank Stodd on the above date owned a policy of liability insurance written by the Manufacturers Casualty Insurance Company of Philadelphia, Pennsylvania, but said company was not, at that time, licensed to do business in the State of New Hampshire. On April 1, 1939, however, said company was registered with the Insurance Commissioner to do business in New Hampshire and is now engaged in business in this State.
The inventory of the estate of B. Frank Stodd, filed by Wayne M. Plummer, ancillary administrator, lists the following assets: "One Nash sedan automobile value $50: chose in action, i.e. liability insurance on the above-mentioned automobile evidenced by insurance policy with the Manufacturers Casualty Insurance Company of Philadelphia, Pennsylvania, which said insurance is available to settle claims of the estates of passengers in said automobile on the fourth day of September, 1938 upon proof of the negligence of B. Frank Stodd, the operator thereof."
On October 30, 1942, Marie Esther Stodd, of Plainfield, New Jersey, as administratrix with will annexed of the estate of B. Frank Stodd, appeared specially and moved that these appeals be dismissed "on the ground that at the date of the death of the said B. Frank Stodd, there were no assets of the said B. Frank Stodd either in the County of Belknap in the State of New Hampshire or anywhere within the State of New Hampshire and therefore there is nothing to administer in the said Estate of B. Frank Stodd and consequently that Wayne M. Plummer who was appointed Ancillary Administrator with will annexed of the Estate of B. Frank Stodd by the Probate Court of Belknap County in said State of New Hampshire was erroneously appointed."
At the hearing in the Superior Court, Marie Esther Stodd, Administratrix, also contended in support of her motion to dismiss these appeals, "that the claims of Thomas W. Power, Administrator, are barred by the Statute of Limitations in that she claims that under the statute the actions were not commenced within two years from the date of the death of the said B. Frank Stodd."
All questions of law raised as above were reserved and transferred by Connor, J.
Harold E. Wescott (by brief and orally), for the plaintiff.
Wayne M. Plummer, pro se, furnished no brief.
Devine Tobin, specially, by brief, for Marie Esther Stodd, Administratrix.
The appointment of the defendant as administrator of the estate of B. Frank Stodd is not open to collateral attack in this proceeding. Ela's Appeal, 68 N.H. 35.
It may be pointed out, however, that the ground upon which it is sought to be attacked is untenable. It is conceded that, upon the date of his death in this state, B. Frank Stodd was the owner of an automobile which has ever since remained in this jurisdiction. This furnished a sufficient basis for the appointment. of the defendant as administrator. The defendant's argument that this automobile "would not seem of sufficient importance to warrant the issuance of administration papers" cannot be accepted. The statute (R. L., c. 346, s. 8) contains no requirement as to the amount of the estate which the deceased must have left in order to justify the appointment of a personal representative in this State.
The subsequent admission of the Manufacturers Casualty Insurance Company to do business in this State brought that company within the jurisdiction of the Probate Court. Its policy issued to B. Frank Stodd thereupon became an asset of his estate within this jurisdiction. Robinson v. Carroll, 87 N.H. 114. Assets of an estate brought here after the death of the owner confer jurisdiction of the subject matter upon the Probate Court and authorize it to charge an administrator with the property "in the exercise of its common law jurisdiction over the assets of deceased persons." Ela's Appeal, supra; Stearns v. Wright, 51 N.H. 600.
The claim of Marie Esther Stodd, Administratrix, that the plaintiffs are barred from recovery because no suit at law was commenced within the statutory period, is equally without merit. The statute in question provides as follows: "If an action [of tort for physical injuries] is not then pending, and has not already become barred by the statute of limitations, one may be brought for such cause at any time within two years after the death of a deceased party, and not afterwards." R.L., c. 355, s. 11. In this case the estate of B. Frank Stodd was decreed to be administered in the insolvent course. A commissioner of insolvency was duly appointed, and upon February 19, 1940, the claims of the plaintiffs were duly presented to him and disallowed. We have no hesitation in holding that the presentation of these claims to the commissioner in accordance with the statute (R. L., c. 356, ss. 7, 12, 17) was the commencement of "an action" within the meaning of the Statute of Limitations above quoted. Coxe v. State, 144 N.Y. 396, 411; Commissioner v. Bristol c. Ins. Co., 279 Mass. 325.
From the foregoing conclusions it follows that the motion of Marie Esther Stodd to dismiss these appeals must be denied.
Motion denied.
All concurred.