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Matter of Estate of Norman Henry Gardinier

Decided: June 3, 1963.

IN THE MATTER OF THE ESTATE OF NORMAN HENRY GARDINIER, DECEASED


For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.

Weintraub

On September 10, 1957 an automobile driven by Nicholas Torsiello collided with an automobile driven by Norman Henry Gardinier. The accident occurred in Belleville, New Jersey, where both Torsiello and Gardinier lived. In November 1957 Gardinier moved to New York where he died in November 1958. Torsiello as a creditor applied in our State for the issuance of letters of administration, and after the letters were granted, he had process in his suit for damages served upon the administrator. The administrator sent the papers to Gardinier's insurance carrier, which thereupon had Gardinier's son move to vacate the grant of the letters. The county court denied the motion. However, the Appellate Division reversed, 74 N.J. Super. 217 (1962), and we granted certification, 38 N.J. 317 (1962).

The complaint for the issuance of the letters alleged that Gardinier died a resident of New Jersey. Torsiello insists

the showing he made raised a triable issue as to whether the deceased in fact had accomplished a change of domicile. We need not consider that question since, if deceased died a nonresident, still there was property here which supported letters under N.J.S. 3A:6-10 upon the application of a creditor or claimant:

"If an executor or administrator of a nonresident decedent fails to apply in this state for letters testamentary or of administration within 60 days next after the death of the decedent and there is, real property, choses in action or other personal property of the decedent within this state, or the evidence of choses in action in the hands of a resident of this state, the surrogate's court of a county wherein any such real property, choses in action or evidences thereof or other personal property, is situate, or the superior court, may, in an action by any person resident or non resident, alleging himself to have a debt or legal claim against the decedent which by the law of this state survives against his representatives, issue letters of administration, with the will annexed or otherwise as the case may require, to some fit person to be designated by the court.

Prior to an appointment pursuant to this section such notice shall be given the foreign executor or administrator as the court shall prescribe." (Emphasis added)

"Personal property" is defined in N.J.S.A. 1:1-2:

"'Personal property' includes goods and chattels, rights and credits, moneys and effects, evidences of debt, choses in action and all written instruments by which any right to, interest in, or lien or encumbrances upon, property or any debt or financial obligation is created, acknowledged, evidenced, transferred, discharged or defeated, in whole or in part, and everything except real property as herein defined which may be the subject of ownership."

The property to which we refer is the policy of automobile liability insurance, and more specifically, the right thereunder of the deceased and his estate to have the insurer defend and pay within the policy limits any judgment in a suit by Torsiello.

The Appellate Division deemed the case to be controlled by In re Roche, 16 N.J. 579 (1954). There both the deceased and the injured claimant who sought administration were

residents of New York. The policy of insurance was issued in that state. The accident, however, occurred in New Jersey and the carrier was authorized to do business in New Jersey. In these circumstances it was held by a vote of 4 to 3 that the statute quoted ...


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