Shields v. . Insurance Co. , 119 N.C. 380 ( 1896 )

The issues and findings were as follows:

"1. Did the plaintiff's intestate die intestate in the city of Selma, in the State of Alabama? Answer: `Yes.'

"2. At the time of his death was the plaintiff's intestate due his creditors for debts contracted in the State of Alabama? Answer: `Yes.'

"3. Have letters of administration been granted on the estate of plaintiff's intestate in the State of Alabama, and if so, when? Answer: `Yes, on 28 October, 1895.'

"4. Has the administrator of said intestate in the State of Alabama made a demand on the defendant company for the amount alleged to be due on the policy of insurance set out in the complaint? Answer: `No.'

"5. Did the plaintiff enter into the contract and agreement with Clement Ritter, and said Ritter have executed and delivered the indemnifying bond, as alleged in the complaint of plaintiff? Answer: `Yes.'

"6. Did Judson Brislin agree in February, 1895, to the arrangement and contract made by the plaintiff with Clement Ritter, as alleged in the complaint? Answer: `Yes.'

"7. Was a part of the burial expenses of Braxton Shields contracted in the county of Moore, State of North Carolina? Answer: `Yes.'

"8. At the time of his death was the domicile of the plaintiff's (383) intestate, Braxton Shields, in the State of Alabama? Answer: `Yes.'

"9. Is there sufficient assets in the State of Alabama belonging to the estate of Braxton Shields to fully pay off and discharge the indebtedness due from said estate in the State of Alabama, outside of the policy of insurance sued on? Answer: `Yes.'"

The defendant admitted issuing the policy, the death of the insured, and its liability to the rightful representative of the deceased, but (among other defenses) averred:

"1. That it is denied that H.B. Shields is the duly appointed administrator of the estate of Braxton Shields, for the reason that the Clerk of the Superior Court of Moore County did not have jurisdiction to appoint the plaintiff such administrator, said appointment having been made on the ground that the plaintiff's intestate was a resident of the State of North Carolina at the date of his death; whereas, in fact, at the date of his death he was a resident of the State of Alabama.

"2. That at the date of his death said Braxton Shields was a resident of the State of Alabama, was engaged in business in said State, and was largely indebted to various residents thereof. The defendant further states that it is ready and willing to pay said policy to any administrator who shall properly and legally be appointed at the place of said Braxton Shield's domicile, but it denies the right of the plaintiff herein to compel the payment of said policy in the State of North Carolina."

As an amendment to its answer the defendant said:

"1. That since the filing of its answer herein letters of administration have been granted upon the estate of Braxton Shields to Judson Brislin, by P. G. Wood, Probate Judge of Dallas County, in the State of Alabama, of which said county and State the said Braxton Shields was a resident at the time of his death, and in which he died. (384) That said administrator has demanded of the said defendant company the amount due the estate of said Braxton Shields by reason of his death and the policy of insurance in this action declared on.

"2. That the defendant is advised and believes that the policy of insurance herein declared on is properly and legally payable (if at all) to the administrator of the estate of said Braxton Shields in the county of Dallas, in the State of Alabama, where the said deceased had his residence, owed debts and died; and that the plaintiff is not entitled to recover in this action for the reasons aforesaid."

The judgment rendered was as follows:

"It being admitted by the plaintiff that defendant company is a nonresident corporation, and a resident of the State of Ohio, and having a branch office in the State of North Carolina, it is adjudged that the plaintiff recover and take nothing by his suit, and that defendant recover from plaintiff and his surety the costs of action."

The plaintiff moved for judgment on the pleadings, findings of the jury and admissions. The Court denied the motion for reasons set forth in the judgment, and the plaintiff appealed. The grant of letters testamentary to H.B. Shields on the estate of Braxton Shields, upon proof that he owned property then in this State, no matter when or how such chattels were brought within his jurisdiction, was valid, although it appeared that the decedent at the time of his death was a resident of the State of Alabama, and left assets there also. Hyman v.Gaskins, 27 N.C. 267; Code, sec. 1374 (3). Being in under a valid appointment, and having in his hands (385) the policy sued on, the law did not allow the debtor to contest his right to collect on behalf of the administrator in Alabama. Whether Brislin, as the administrator appointed in the jurisdiction where his domicile was at the time of death, could in a proper proceeding recover the policy, as an evidence of debt due the estate or the proceeds when collected, is a question that does not arise. The acts of an administrator who is not entitled to the appointment are not invalid. He is clothed with all the power of a properly constituted personal representative, and, though one who has the better right may insist upon his removal, he can not impeach his acts while in office. In so far as he who has been ousted has administered the estate his acts, like those of ade facto officer, are as valid and binding as if he had been the incumbentde jure. Garrison v. Cox, 95 N.C. 353; Springer v. Shavender,116 N.C. 12; Lyle v. Siler, 103 N.C. 261; London v. R. R., 88 N.C. 584. Having been appointed by a court having jurisdiction, and being bound to administer all assets that come into his hands or the hands of any other person for him, the plaintiff, with the policy in his possession, has the right to demand payment and the authority to have his demand, if resisted, enforced through the courts. Indeed, the law devolves upon him the duty of collecting it. Williams v. Williams,79 N.C. 417. The payment of the money in satisfaction of a judgment in this action could not be hereafter drawn in question by Brislin, as administrator of the jurisdiction where he resided, leaving out of view all of the agreements between the heirs at law and distributees and the two administrators. London v. R. R., supra. Whether Brislin in his representative capacity could recover or whether the Alabama (386) creditors could recover against the plaintiff, is a question which in no way affects the rights of the defendant.

It is needless for the reasons given to discuss or pass upon the effect of Brislin's execution of the agreement operating as an assignment. It is sufficient for the maintenance of this suit that the plaintiff is lawful administrator, and has in his hands an unpaid chose in action which the defendant owes to the decedent's estate.

The judge who tried the case below seems to have rendered judgment for the defendant upon a demurrer ore tenus to the jurisdiction on the ground that an action could only be brought against the defendant company, under the provisions of its charter, in the State of Ohio. It is familiar learning that a corporation is permitted to do business outside of the State where it is created, as a matter of comity, but always with the proviso that it is subject to the laws of the forum and has no greater privileges than domestic corporations under its statutes. Barcello v.Hapgood, 118 N.C. 712, at p. 728. The defendant has been brought into court and has answered on the merits. The Code, secs. 194 and 195, confers jurisdiction against all foreign corporations doing business in the State, and provides for removal to the proper county when that named in the summons and complaint is not the proper one. McMinn v. Hamilton,77 N.C. 300.

The Court below erred in refusing the plaintiff's motion for judgment, and the ruling below is reversed. The case must be remanded, to the end that judgment may be entered for the plaintiff in accordance with the verdict.

REVERSED.

Cited: Morefield v. Harris, 126 N.C. 627, 628; Page v. Ins. Co.,131 N.C. 116; Goodwin v. Claytor, 137 N.C. 232; Bank v. Pancake,172 N.C. 515.

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