Goldmann, Freund and Foley. The opinion of the court was delivered by Freund, J.A.D.
[74 NJSuper Page 219] This appeal is by Clyde Gardinier, son and sole heir of the decedent Norman Henry Gardinier, from an order of the Essex County Court, Probate Division,
denying his application for an order setting aside a judgment of the Essex County Surrogate's Court granting administration upon the estate of his father to Philip Lindeman II.
The underlying facts may briefly be stated as follows. On September 10, 1957 Norman Henry Gardinier, while driving an automobile in Belleville, N.J., was involved in an accident with another automobile being operated by Nicholas Torsiello, a resident of New Jersey. On that date Gardinier resided at 67 Rossmore Place, Belleville, and was insured for liability by the St. Paul Fire and Marine Insurance Company, a Minnesota corporation authorized to do business in New Jersey.
On November 18, 1957 Michael Cafone and Lucille, his wife, purchased from Gardinier his property on Rossmore Place. Gardinier, soon after the conveyance of his property, moved to reside with his son, Clyde, at Mount Pleasant, Pleasantville, N.Y. These facts were corroborated by affidavits of Michael Cafone and Clyde Gardinier. Norman Henry Gardinier continued to reside at Mount Pleasant until his death on November 21, 1958. The decedent had no assets in New Jersey at the time he died.
On July 29, 1959 Torsiello filed a complaint against Norman Henry Gardinier in the Superior Court, Law Division, for personal injuries allegedly resulting from the 1957 automobile accident. The sheriff of Essex County was unable to effect service of the complaint since the return made by the deputy disclosed that the defendant had died. An attempt was then made to effect service of the summons and complaint on the decedent's insuror, but it refused because it had no authority to accept service. Torsiello offered to stipulate that the ad damnum clause of his complaint would be reduced to coincide with the limits of the policy if service of process would be accepted by the carrier, but this offer was rejected.
On September 14, 1960 Torsiello filed a complaint for the administration of Gardinier's estate with the Essex
County Surrogate, alleging that the decedent was domiciled at the Belleville address at the time of his death. On October 13, 1960 the surrogate granted letters of administration to Philip Lindeman II. This judgment recited, inter alia , that Torsiello was a creditor of Gardinier, "late of the County of Essex and State of New Jersey * * * [who] died possessed of goods, chattels, rights and credits" of the value of $1,000, and that all other parties entitled to administration "have been duly noticed and have not appeared." On October 26, 1960 Torsiello filed an amended complaint in the personal injury action naming Lindeman, the administrator, a party defendant. The following day this complaint was served.
Upon motion by Clyde Gardinier on behalf of his father's estate, an order was entered on March 20, 1961 to show cause why the judgment granting letters of administration to Lindeman should not be set aside. The affidavits of Cafone and Gardinier were received and considered at the argument on the return of the order to show cause. In addition, there was received an affidavit of Lindeman who stated that "to my knowledge there are no assets of the said estate in the State of New Jersey." An affidavit of Torsiello's attorney was also received at the oral argument. It stated:
"Upon information and belief, I was further informed that said NORMAN HENRY GARDENIER [ sic ] was physically and mentally ill by reason of the frailties of human nature due to his age. As a result thereof he was taken to Mount Pleasant, Pleasantville, New York to stay with his relatives.
The said NORMAN HENRY GARDENIER [ sic ] at that time and place could not manifest any intention to change his domicile from New Jersey by reason of his physical and mental condition which shortly thereafter, some 7 months later, terminated his death.
At the time he left the Town of Belleville, Essex County, New Jersey, he was neither physically or mentally well and could not and did not manifest any intention to change his domicile."
The affidavit further stated that administration was being sought "so that service of the ...