In re Estate of Bedard

ENTRY_ORDER.93-212; 161 Vt. 587; 657 A.2d 167

[Filed 30-Nov-1993]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 93-212

                             NOVEMBER TERM, 1993


 In re Estate of J. Pierre Bedard  }          APPEALED FROM:
                                   }
                                   }
                                   }          Windsor Superior Court
                                   }
                                   }
                                   }
                                   }          DOCKET NO. S0277-92WrCa


              In the above entitled cause the Clerk will enter:

      Appellee, who was injured in an accident allegedly caused by the
 negligence of the decedent insured, filed a petition in probate court to
 open administration of an intestate estate for the insured after the probate
 court in the insured's resident state declined to do so based on its con-
 clusion that he did not own real or personal property there.  Appellant
 insurer intervened to challenge the probate court's jurisdiction to
 administer an estate for a nonresident who owned no property in Vermont
 other than the right to exoneration under its liability insurance policy.
 Appellant appeals from the superior court's conclusion that the probate
 court had jurisdiction to administer the estate.

      At issue is whether the right of exoneration under a liability
 insurance policy owned by a nonresident decedent who allegedly incurred
 liability under the policy in Vermont is a sufficient asset to permit the
 administration of the decedent's estate here.  We conclude that it is, and
 affirm the superior court's decision.  Although this Court has not addressed
 this issue, the generally accepted rule is that the right of exoneration
 under an insurance policy constitutes sufficient assets, property, or estate
 of a nonresident decedent to justify the administration of the decedent's
 estate in the state where the alleged liability was incurred, as long as the
 carrier is authorized to do business in that state.  See Campbell v. Davis,
 145 So. 2d 725, 727 (Ala. 1962); Estate of Van Trump v. National Ins. Under-
 writers, 517 P.2d 856, 857 (Colo. Ct. App. 1973); In re Estate of Gardner,
 191 A.2d 294, 296 (N.J. 1963); In re Edmundson, 159 S.E.2d 509, 512 (N.C.
 1968); Annotation, Liability Insurer's Potential Liability to Estate
 Dependent upon Establishment of Claim against Estate, as Justifying Grant of
 Administration under Statutes Making Existence of Assets or Property a
 Condition of Grant, 67 A.L.R.2d 936, 938 (1959).  Appellant does not cite
 to, and we have not found, any relevant and significant case law that
 contradicts this general rule.

      More importantly, the rule is completely consistent with our statutory
 law.  Administration of the estate of a nonresident decedent shall be

 

 allowed "in the probate court of any district in which he had estate." 4
 V.S.A. { 313.  Similarly, venue for administration of the estate of a non-
 resident decedent shall lie "in any district where estate of the decedent
 is situated."  4 V.S.A. { 311a(2).  Personal estate is defined broadly as
 "all property other than real estate."  1 V.S.A. { 129.  This broad
 definition includes a potential right of exoneration, despite the fact that
 the value of the right is conditioned upon proof of the insured decedent's
 liability.  See Robinson v. Dana's Estate, 174 A. 772, 775 (N.H. 1934)
 (although right of exoneration is conditional, "it is estate, in the
 statutory meaning, owned by the decedent when he died").  Administration of
 the estate is particularly appropriate here because Vermont is the situs of
 the accident that allegedly incurred liability under appellant's policy and
 because there is no undue burden on the domiciliary state.  See Estate of
 Van Trump, 517 P.2d  at 859.  Indeed, there is no domiciliary estate or
 jurisdiction in this case, and thus no alternative forum.   Public policy
 and equity favor administration of the estate in Vermont.

      Affirmed.






                                    BY THE COURT:



                                    Frederic W. Allen, Chief Justice


                                    Ernest W. Gibson III, Associate Justice

 [ ]  Publish
                                    James L. Morse, Associate Justice
 [ ]  Do Not Publish

                                    Denise R. Johnson, Associate Justice