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Berry v. Smith

Court of Appeals of Georgia
Feb 28, 1952
70 S.E.2d 62 (Ga. Ct. App. 1952)

Summary

In Berry v. Smith, 85 Ga. App. 710 (70 S.E.2d 62), a petition was filed in a court of jurisdiction for an appointment of an administrator of the estate of Berry, the petitioner claiming a cause of action against Berry for damages because of personal injuries resulting from a traffic accident.

Summary of this case from In re Critchell Estate

Opinion

33698, 33701.

DECIDED FEBRUARY 28, 1952. REHEARING DENIED MARCH 19, 1952.

Appeal; from Chatham Superior Court — Judge D. S. Atkinson. May 11, 1951.

Marina Capitan, Gilbert E. Johnson, for plaintiff in error.

Irving Stanley Nathan, A. R. Meiman, Morris Smith, contra.


1. Where two parties file separate caveats to an application for the appointment of an administrator, their rights are distinct and independent, and each party has the right to except to the judgment overruling the caveats, and to file a separate bill of exceptions.

2. Upon the hearing of an application for the appointment of an administrator on the estate of one who held in his lifetime an automobile liability insurance policy, the insurer is not entitled to contest the appointment, but is a mere interloper, since it has no interest in the estate. Accordingly, the court did not err in sustaining the plaintiff's demurrer to its caveat.

3. Since a cause of action for damages to person or property does not abate by the death of the tort-feasor, but survives against his personal representative, one who has a cause of action against the deceased for personal injuries has an interest which may be enforced by a suit against an administrator, and is thus entitled to be heard on the appointment of an administrator.

4. A policy of automobile liability insurance owned by the deceased is an an asset of the estate, justifying the appointment of an administrator.

5. Such a policy, in the absence of consent by the insurer, is not assignable and, hence, may not become the subject matter of an award under a year's support, but the right to the policy inheres only in such personal representative of the deceased as may be appointed.

DECIDED FEBRUARY 28, 1952 — REHEARING DENIED MARCH 19, 1952.


Mannie Smith petitioned the Ordinary of Chatham County for the appointment of the county administrator as the administrator of the estate of Ben L. Berry, and alleged substantially as follows: Ben L. Berry died in April of 1950, leaving an estate of the value of $7000, to wit: (1) 1942 Chevrolet automobile; (2) 1941 Buick automobile; (3) one-half interest in lots 134, 135, 136, 137; (4) stock, supplies, equipment, and all other personal property or rights growing out of the operation of the business known as Ben L. Berry, Gunsmith; together with all furniture, household goods, and all other property, real and personal, and all obligations of every kind, nature, or description of which the said Ben L. Berry was entitled to possession. Both automobiles, the one-half interest in the realty, and one-half interest in the business, a total valuation of $5000, were set aside to Eloise Berry, widow of the deceased for a year's support. [The order of June 12, 1950, ordered that the following property set aside by the appraisers vest in the widow and her minor child: (1) one 1942 Chevrolet, valued at $400; (2) one 1941 Buick, valued at $400; (3) one-half interest in lots Nos. 134, 135, 136, and 137, valued at $2000; and (4) one-half interest in the stock, supplies, equipment, and all other personal property or rights growing out of the business known as Ben L. Berry, Gunsmith, valued at $2000; together with all furniture, household goods, and all other property, real or personal, and all obligations of every kind, nature or description to which the said Ben L. Berry was entitled or possessed.] The business was owned and operated by Ben L. Berry as sole proprietor. The petitioner has a cause of action against the deceased "for personal injuries sustained by petitioner as a result of being run into negligently by the deceased while the latter was driving his automobile (the 1941 Buick club coupe), on November 5, 1949, in Savannah, Ga." By the terms of an automobile liability insurance policy, issued by Trinity Universal Insurance Company, it undertook to pay, up to the limits of the policy, all sums which the deceased might become obligated to pay because of bodily injury sustained by any person, caused by accident and arising out of the use of the automobile by the deceased. This contractual right is an asset of the estate of Ben L. Berry. The portion of the estate consisting of the remaining one-half interest in the business and the insurance contract are not represented and not likely to be represented.

Trinity Universal Insurance Company filed a caveat, contending that the petition fails to show that the applicant is either a creditor of or kin to Ben L. Berry, or otherwise interested in the grant of administration, and that the insurance contract is not, under Georgia law, an asset of the estate. The caveat denied that Ben L. Berry had died and also denied that the petitioner had a cause of action against him. The petitioner filed a general demurrer to this caveat, stating that the caveat shows on its face that the insurance company is neither a creditor nor heir of the estate, and that the caveat ought to be dismissed.

Mrs. Eloise Berry, in behalf of herself and her minor child, filed a caveat, saying that the petitioner is not a creditor of the estate, that all the property of the deceased had been set apart to the caveator as a year's support, that there is no property upon which administration can be had, that the deceased owned only one-half interest in the business but, if he had been sole owner, all his interest passed to caveator under the year's support, and that the insurance policy is not an asset of the estate. Eloise Berry moved the court to strike and dismiss the application on the ground that it shows that there is no estate upon which administration can be had.

The ordinary sustained the motion of Eloise Berry and dismissed the application for the appointment of an administrator. The petitioner appealed to the Superior Court of Chatham County. The court sustained the petitioner's demurrer to the company's caveat and overruled the motion to dismiss and the material portions of the caveat of Eloise Berry. The case is here on exceptions to such ruling, each caveator having filed a separate bill of exceptions.


1. The defendant in error has filed motions to dismiss the writs of error, on the ground that the bills of exceptions should have been presented as one bill of exceptions with Trinity Universal Insurance Company and Mrs. Eloise Berry as joint plaintiffs in error, and Mannie Smith as defendant in error, instead of as separate bills naming each other as defendant in error together with Mannie Smith as the other defendant in error. This motion is without merit. The insurance company's caveat contained, in addition to the points in Mrs. Berry's caveat, the contention that Ben L. Berry is not dead. Mrs. Berry assigns error on the overruling of a motion to dismiss, in addition to her assignment of error on the overruling of her caveat. The caveats were disposed of in different ways. The court sustained a demurrer to the insurance company's caveat, ruling that the company had no right to be heard in the case, and thus did not consider the objections offered by the company, whereas Mrs. Berry's caveat and motion to dismiss were considered on their merits, and overruled. Though the separate caveats contain some identical questions, the rights of the two caveators are distinct and independent, and each party has the right to except to the ruling and to file a separate bill of exceptions. Otherwise, since the company filed its bill of exceptions first, and since there is no method known to the law by which Mrs. Berry could have compelled it to include an assignment of error on the overruling of her caveat and motion to dismiss, the judgment would stand as final against her, because no exception was taken to it, unless she were allowed to except and test the question by a separate bill of exceptions. See East Atlanta Land Co. v. Mower, 138 Ga. 380 ( 75 S.E. 418).

2. Trinity Insurance Company assigns error on the ruling that its caveat is insufficient in law, in failing to show that the caveator is either an heir or creditor, and that its only interest is to defend any suit which may be brought against the estate. The company contends that it has a substantial interest to protect, and that the court erred because the caveat challenges the ordinary's jurisdiction on the ground that Ben L. Berry is not dead. Since mere apprehension of suit by an administrator, when appointed, will not authorize a person to appear as a party in the court of ordinary ( Augusta Summerville R. Co. v. Peacock, 56 Ga. 146), it follows that a company which will be bound to defend a suit, if filed, against an administrator, when appointed, just as it would have been bound to defend a suit for the same cause of action against deceased had he lived, does not have any interest in the estate, but is a mere interloper; and the trial court properly sustained the petitioner's demurrer to the company's caveat, since it has no right to be heard on any contention.

3. Ground 2 of Mrs. Berry's caveat contends that the petitioner is not a creditor of the estate within the provisions of the law, so that he can apply for the appointment of an administrator. This ground is without merit. Ordinarily a person who petitions for the appointment of an administrator or who caveats to such a petition must be either an heir at law or a creditor of the deceased. Augusta Summerville R. Co. v. Peacock, supra; Williams v. Williams, 113 Ga. 1006 ( 39 S.E. 474); Towner v. Griffin, 115 Ga. 965 ( 42 S.E. 262). However, any other person who has a real interest in the estate may be heard in the court of ordinary on the appointment ( Dierks v. Smith, 119 Ga. 859, 47 S.E. 203; Mathews v. Rountree, 123 Ga. 327, 51 S.E. 423; Bearden v. Baldwin, 174 Ga. 191, 162 S.E. 802); and the right extends to one who has an interest in the estate which may be enforced by a suit against an administrator ( Sybilla v. Connally, 66 Ga. App. 678, 18 S.E.2d 783). Since a cause of action for damages for injury to person or property does not abate by death of the tort-feasor, but survives against his personal representative (Code, § 3-505), the petitioner here has an interest in the estate which may be enforced by a suit against an administrator, and he is entitled to be heard in the court of ordinary on the appointment of an administrator.

4. Ground 6 of Mrs. Berry's caveat contends that the policy of insurance is not an asset of the estate of the deceased, and the motion to dismiss filed by Mrs. Berry contends that there is no estate upon which an administration can be had. This presents a question which this court has not had the occasion to pass upon, that is, whether the potential liability of the insurer to the estate, dependent upon the establishment of a claim by a third person against the estate, is an asset of the estate. The first case on this subject seems to be Robinson v. Dana's Estate, 87 N.H. 114 ( 174 A. 772), where it was held that such liability by a liability insurer to an insured constitutes an asset of the insured justifying a grant of administration, although it is conditional upon the maintenance by the injured person of an action and establishment of a liability against the insured or his estate, and although ultimately it may prove not to be owing to the deceased or his estate. The later cases of Gordon v. Shea, 300 Mass. 95 ( 14 N.E.2d, 105), Furst v. Brady, 375 Ill. 425 ( 31 N.E.2d, 606), and In re Vilas' Estate, 166 Ore. 115 ( 110 P.2d, 940), followed this rule. The opinions in these cases seem to be sound. "For every right there is a remedy." Code, § 3-105. In cases where there are no other assets, if this rule were not followed, no suit could be brought by the injured person against the insured's estate for lack of an administrator to be sued, and the insurance company would escape liability. The insurance policy is an asset of the estate justifying the appointment of an administrator.

5. But is urged by the widow, Mrs. Berry, that, if the policy of insurance is an asset of the deceased husband's estate, it passed to her under the language contained in item 4 of the award, "Together with all furniture, household goods, and all other property, real or personal, and all obligations of every kind, nature, or description to which the said Ben L. Berry was entitled and possessed." For reasons now to be advanced, a construction of item 4 is unnecessary. While the policy was, as we have ruled, an asset of the deceased Berry's estate and a sufficient basis for the appointment of an administrator, its legal status was that neither it, nor any interest in it, would pass under the award of a year's support. The policy was not written for the benefit or protection of the wife or any other person. Its sole object was to indemnify the insured. Fidelity Casualty Co. v. Martin, 163 Ky. 12 ( 173 S.E. 307, L.R.A. 1917f, 924); 29 Am. Jur. 142, § 126. Such an executory contract, in which the personal character of the insured is obviously a most important element, is not, before liability is cast upon the insurer by reason of a judgment against the insured, assignable without the consent of the insurance company. Ocean Accident c. Corp v. Southwestern Bell Tel. Co., 100 Fed. 2d, 441, 444 (122 A.L.R. 133, and annotations); Rendelman v. Levitt (Mo.App.), 24 S.W.2d 211, 213; 29 Am. Jur. 401, § 492. Even where tangible property, real or personal, is insured and is later sold, it is well settled that policies of insurance on such property, because of the personal element involved, do not run with it. Since, as we have demonstrated, a policy of liability insurance, as here, may not be assigned by the insured without the consent of the insurance company, it necessarily follows, a fortiori, that it may not become the subject matter of an award under a year's support. The legal result is that the right to the policy in question inheres only in such personal representative of the deceased as may be appointed, and that, if judgment be obtained against him for any injury suffered by the plaintiff at the hands of the administrator's intestate, the insurance company issuing the policy will be obliged to respond on behalf of such administrator.

Judgment affirmed. Sutton, C. J., and Felton, J., concur.


Summaries of

Berry v. Smith

Court of Appeals of Georgia
Feb 28, 1952
70 S.E.2d 62 (Ga. Ct. App. 1952)

In Berry v. Smith, 85 Ga. App. 710 (70 S.E.2d 62), a petition was filed in a court of jurisdiction for an appointment of an administrator of the estate of Berry, the petitioner claiming a cause of action against Berry for damages because of personal injuries resulting from a traffic accident.

Summary of this case from In re Critchell Estate

In Berry v. Smith, 85 Ga. App. 710 (4) (70 S.E.2d 62) this court held that the potential liability of an insurer under a liability insurance policy, dependent on the establishment of a claim by a third person against the estate, is an asset of the decedent's estate, justifying the appointment of an administrator.

Summary of this case from Tweed v. Houghton
Case details for

Berry v. Smith

Case Details

Full title:BERRY v. SMITH et al. TRINITY UNIVERSAL INSURANCE CO. v. SMITH et al

Court:Court of Appeals of Georgia

Date published: Feb 28, 1952

Citations

70 S.E.2d 62 (Ga. Ct. App. 1952)
70 S.E.2d 62

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