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Matter of Estate of Frank T. Roche

Decided: November 22, 1954.


On certified appeal from the Chancery Division of the Superior Court to the Appellate Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant and Brennan. For reversal -- Justices Wachenfeld, Burling and Jacobs. The opinion of the court was delivered by Heher, J. Burling, J. (dissenting). Mr. Justice Wachenfeld and Mr. Justice Jacobs authorize me to state that they join in the views expressed in this opinion.


The widow of Lawrence V. Keefe and his general administratrix under letters issued in New York, the place of his domicil, and also his administratrix ad prosequendum by appointment of the Surrogate of Passaic County, New Jersey, was denied ancillary administration in New Jersey of the estate of Frank T. Roche, deceased, whose widow is his domiciliary administratrix by designation of a New York tribunal; and she appeals from the judgment of dismissal entered in the Chancery Division of the Superior Court. 30 N.J. Super. 572.

Ancillary administration in New Jersey is sought for the prosecution here of an action in tort for negligence attributed to Roche in the operation of his automobile on a public highway in Clifton, New Jersey, on June 27, 1951, in consequence of which Roche and Keefe suffered fatal injuries. By this means, it is designed to secure service of process on the Roche estate in an in personam proceeding in New Jersey. The denial of ancillary administration was predicated upon the failure of proof of the statutory prerequisite of property of the deceased within our jurisdiction requiring administration.

The case is here by certification on our own motion of the appeal to the Appellate Division.

All the parties to the action are and have been at all times material to the inquiry domiciliaries and residents of the State of New York. This was so of both Keefe and Roche, the victims of the fatal collision; and the same is true of their respective personal representatives and their next of kin as well. Keefe resided at Briarcliff Manor, New York, and Roche at Pelham, New York; and their surviving kin have continued their several residences in New York. New Jersey has no relation to the ensuing litigious controversy save that the fatalities were the consequence of a motor vehicular collision on one of its highways and the deceased Roche held a policy of public liability insurance issued in New York by a foreign corporate insurer then and now authorized to pursue its business in New Jersey. Keefe and Roche were in an

automobile owned and driven by the latter which came into collision with a truck of The Port Murray Dairy Co., Inc., a New Jersey corporation, operated by one Alfred Taylor, a New Jersey resident.

For reasons of her own, Keefe's widow and domiciliary general administratrix of his estate, by appointment of the New York tribunal, as just said, determined to invoke New Jersey's jurisdiction to enforce by a proceeding in New Jersey the right of action for the alleged delictum given by its Death Act, R.S. 2:47-1 et seq., now N.J.S. 2 A:31-1 et seq. Respondents suggest that Keefe's administratrix and next of kin fear that under the law of New York the "claim by a co-employee against his co-employee" is "doubtful." Vide Stacy v. Greenberg, 14 N.J. 262 (1954). But no matter! In personam jurisdiction could not be had in New Jersey against Roche's nonresident administratrix, through service of process upon the State Director of the Division of Motor Vehicles, as the nonresident highway user's agent, for R.S. 39:7-2, as amended by L. 1950, c. 251, is not embracive of the user's personal representative after death, assuming that a legislative regulation to this end would have constitutional validity. Such is not within the statutory agency of service. Young v. Potter Title & Trust Co., 114 N.J.L. 561 (Sup. Ct. 1935), affirmed 115 N.J.L. 518 (E. & A. 1935). An in personam judgment entered against the nonresident domiciliary administrator on the basis of such service would be utterly void for want of jurisdiction. Whalen v. Young, 15 N.J. 321 (1954). So much is conceded.

But, in an endeavor to acquire in personam jurisdiction by other means, Keefe's widow on June 20, 1952, on her own individual petition, was appointed administratrix ad prosequendum of her deceased husband by the Surrogate of Passaic County, New Jersey, to prosecute an action ex delicto in New Jersey against the Roche estate and the Dairy Company for the benefit of his surviving next of kin. She then applied to the same New Jersey tribunal for ancillary administration in New Jersey of the estate of the deceased

Roche, and in this wise, so it was conceived, to provide the means of service of process in the ex delicto action upon the estate of Roche, whose domiciliary administratrix is his widow under letters granted in New York.

This on the hypothesis that Keefe's widow, as general administratrix and administratrix ad prosequendum, was a "creditor" of the Roche estate within the intendment of N.J.S. 3 A:6-10. But the provision is for ancillary administration in New Jersey of "real property, choses in action or other personal property" of the deceased "within this state," or the "evidence of choses in action in the hands of a resident of this state," at the instance of a resident or nonresident creditor, if the executor or administrator of the nonresident decedent has not applied for administration within 60 days after the decedent's death, obviously a measure designed to protect and subject to administration tangible and intangible property of the deceased then within New Jersey. And there was no "chose in action" or "personal property" of the deceased Roche within New Jersey, nor "the evidence of choses in action in the hands of a resident" of New Jersey within the intendment of the statute, considering its manifest reason and spirit.

Certainly, this is so as to the asserted claim of Roche's administratrix against the Dairy Company for property damage, for if the claim made here by the deceased Keefe's next of kin against the Roche estate be well founded, then it follows as the night the day that the Roche estate has no cause of action in New Jersey for negligence against the Dairy Company.

And the public liability insurance issued in New York to the deceased Roche by the foreign indemnity company also authorized to issue such policies in New Jersey is plainly not a chose in action for the protection of which ancillary administration in New Jersey is needed, in the interest of either a resident or a nonresident creditor. It is to be borne in mind that by force of an express provision, ancillary administration is permissible only when the executor

or administrator of the nonresident decedent fails, for 60 days after the death of his decedent, to apply in New Jersey for "letters testamentary or of administration." We have here a protective mechanism. The liability insurance policy, in its very nature, provided no reason for ancillary administration in New Jersey. There was no judgment to be satisfied under its terms; indeed, action had not been commenced. The policy does not have a situs in New Jersey. It was issued by a foreign corporation in New York to a resident of New York; and, while the indemnity company was and is authorized to transact its business in New Jersey, the policy was not delivered in the exercise of that power, and New Jersey has no interest in its enforcement which confers jurisdiction through ancillary administration to determine the underlying issue of liability in tort as between the nonresident insured and the nonresident injured third persons. This is axiomatic.

Mr. Justice Reed, in the Standard Oil escheat case, infra, cited by appellant, said that whether property such as choses in action, stock certificates and dividends held by the subject corporation "has its situs with the obligor or the obligee or for some purposes with both has given rise to diverse views" in the Federal Supreme Court, but there is no reason to doubt that "where the debtor and creditor are within the jurisdiction of a court, that court has constitutional power to deal with the debt"; situs of an intangible is fictional, but "control over parties whose judicially coerced action can make effective rights created by the chose in action enables the court with such control to dispose of the rights of the parties to the intangible," and since "such power exists through the state's jurisdiction of the parties whose dealings have created the chose in action," there is no need to "rely on the concept that the asset represented by the certificate or dividend is where the obligor is found"; the "rights of the owners of the stock and dividends come within the reach of the court by the notice, i.e. service by publication; the rights" of the New Jersey created corporation "by personal

service," and that power "enables the escheating state to compel the issue of the certificates or payment of the dividends," and this "gives New Jersey jurisdiction to act." Standard Oil Co. v. State of New Jersey, 341 U.S. 428, 71 S. Ct. 822, 95 L. Ed. 1078 (1951).

It is a jurisdictional sine qua non of the statutory ancillary administrative function that there be a chose in action or other property of the deceased nonresident "within" New Jersey, or "the evidence" of a chose in action "in the hands of a resident" of New Jersey.

Here, in all seeming the situs of the insurance policy is the domicil of the nonresident decedent at the time of his death. Personal property ordinarily has its situs at the domicil of the owner. Certainly, the situs of this intangible is not in New Jersey; and the insurer is plainly not a "resident" of New Jersey in the statutory sense.

A corporation is "domiciled and resident in the state of its creation"; it lives and dwells in the jurisdiction whence it derives its existence, although it engages in business elsewhere under local authority; it can have its "legal home" only at the place where it is located by or under the authority of its charter, but it may by its agents transact business anywhere, unless prohibited by its charter or excluded by local law. A corporation, by doing business away from its "legal residence," simply enlarges the field of its operations. It resides at home, but does business abroad. A natural person resident in New Jersey does not become a "nonresident" by merely engaging in business in another jurisdiction; a fortiori, a domestic corporation whose domicil and residence in the state of its creation are inseparable incidents of the charter which gives it being, does not become a "nonresident" by transacting business in another sovereignty, although it may have a residence there for the purposes ordained by the foreign jurisdiction. State v. Garford Trucking, Inc., 4 N.J. 346 (1950).

Personal property within the State belonging to the estate of the decedent is the factum of jurisdiction to provide

ancillary administration. By ancient fiction accorded recognition by comity, personal property was deemed adherent to the person of the owner, so much so as to have no situs other than his domicil, a principle embodied in the maxim of the Roman law, mobilia sequuntur personam. Lamar v. Micou, 112 U.S. 452, 5 S. Ct. 221, 28 L. Ed. 751 (1884). And though in our complex society this doctrine has come to have a limited application, ancillary administration is a mode of procedure designed only to protect property of the deceased nonresident situate within the jurisdiction, at the outset for the benefit of resident creditors through local administration, but later, by a revision of the enabling act adverted to, adopted January 1, 1952, N.J.S. 3 A:6-10, for the protection also of nonresident creditors. Such is an attribute of sovereignty in relation to property within its control.

An arbitrary construction is not true exegesis. The meaning of a statute is not ruled by the strict letter, but rather by the sense and meaning fairly deducible from the context. The reason of the provision prevails over the literal sense of the words; the obvious policy is an implied limitation on the sense of general terms, and a touchstone for the expansion of narrower terms. The spirit gives character and meaning to the particular symbols of ...

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