Hanks v. Administrator of Estate of Jensen

CROCKETT, Justice: The controversy in this case is over the validity of the appointment of an administrator of the estate of Jens E. Jensen. This appeal is an attempt to reverse the ruling of the district court refusing to remove the administrator. In September 1968, while decedent Jensen was a resident of California he was involved in an automobile collision in which the plaintiff suffered injuries. Jensen later moved to the state of Illinois where he resided at the time of his death in January 1970. (While we do not regard it as con-' trolling in this case, there appears to have been a probate of his estate in Illinois.) Meanwhile, State Farm Mutual Insurance Company, as the insurer for Jensen, had carried on negotiations in Ogden, Utah, with the plaintiff, and had there entered into a contract of settlement with her, and release of claims against Jensen. Subsequently, plaintiff sought to have the release set aside on the ground that it was obtained by duress. Plaintiff filed a petition seeking the ap- ' pointment of an administrator of the estate of decedent Jensen, which was duly granted. State Farm Mutual then filed a peti- ' tion herein, complaining that it had not received notice, and alleging that plaintiff and her attorney, . . . were both fully aware [that it was the insurer] [and that they] ... either wilfully or negligently failed to designate State Farm Mutual ... as the insurer . . . and as a person who should receive notice of the hearing of said petition, even though the rights of that insurer were the only rights in question in the case, . On the basis of the language just quoted, the petition asked that the appointment of the administrator be vacated. It is from a denial of that petition after a hearing thereon that this appeal is taken. [180] The order appointing the administrator must find sanction in our statute, which, it will be noted, is very broad in its terms: 75-4-2. WHEN A CREDITOR OR CLAIMANT ENTITLED. * * * If none of the relatives entitled * * * will accept, then a creditor or other person having a claim in or adverse to the estate shall be entitled to letters * * *_ It is of significance that the basis of the plaintiff’s claim is a bifurcated one. It involves an attempt to set aside the contract of settlement and release executed between plaintiff and State Farm Mutual here in Utah, and quite beyond that, issues which may or may not arise relating to an attempt to assert a further claim against the estate of Jens E. Jensen. This was taken cognizance of and so recited in the findings (No. 12) of the trial court. The principles involved as related to our statute above quoted, and the general law, were ably and clearly set forth by Justice Wade, In re Estate of Leigh.1 In that case there was no tangible property belonging to a nonresident decedent, but there was in force a liability insurance policy. Indicating the propriety of granting letters of administration to determine the validity of plaintiff’s claim, this court said:- * * * it is generally held that a mere claim for or against the estate is siiffi-dent asset to justify the appointment regardless of its validity, for a claim may have value although it may eventually be determined to be invalid. The obvious purpose of our law is to provide for the appointment of an administrator even though it is eventually shown that there is no property of such estate. An administrator may be appointed to litigate the validity of claims for and against such estate, and if assets are necessary, such claim is sufficient to warrant the assumption of jurisdiction to appoint an administrator of such estate. This court made another pertinent observation a long time ago in the case of In re Tasanen’s Estate.2 In upholding the appointment of an administrator where the only possible asset was a claimed cause of action the court stated: * * * If there should be -nothing which the administrator could legally do, it could harm nobody. If there should be something which an administrator ought to do, then the appointment would be necessary. Our statutory and decisional law authorizing probate proceedings to litigate1 and determine the validity of an asserted claim is in harmony with the well-established general rule as stated by Bancroft: 3 Whenever there is a possible right of action for wrongful death or in respect [181] of any claim or chose in action upon which a fair-minded attorney would advise his client to bring suit it would seem that such circumstance alone, in the absence of some inhibiting statute, should be and is sufficient to warrant the assumption of jurisdiction and the issuance of letters. [Citing cases.] In the light of the foregoing authorities we redirect our attention to the contention of State Farm Insurance Company. It appears to be confronted with two horns of a dilemma: ' on the one hand, there is a claim being asserted against it (its insured) arising out of the contract of release which was executed and performed in Utah, and this being so, in accordance with our statute as above quoted, and the authorities we have referred to, it seems clear that our district court had jurisdiction to appoint an administrator so that the question of the existence of an asset relating to the claimed right of rescission of the contract of release could be determined. On the other hand, if it were correct in its contention that there is no such claim being asserted against it in Utah, then it would have no interest in this proceeding and no status to challenge the appointment of the administrator.4 It should be here noted particularly that the petition to discharge the administrator was filed only by the State Farm Mutual Insurance Company, in its own name, and on its own behalf. By way of precaution against this decision being misunderstood, it seems appropriate to make some further observations. Our decision and our concern here are only with the validity of the appointment of the administrator and only with affirming the trial court’s rejection of the petition of State Farm Mutual to remove the administrator. We do not desire to conjecture either as to what further or other litigation may be attempted, or as to what issues might or might not arise relating thereto, or as to what the answers might be.5 Consistent with what has been said herein, it is our conclusion that the order of the district court rejecting the petition of State Farm Mutual Insurance Company to remove the administrator should be, and is hereby, affirmed. Costs to plaintiff (respondent) . (All emphasis added.) Footnotes [1] 6 Utah 24 299, 313 P.2d 455. [2] 25 Utah 396, 71 P. 984. [3] Bancroft’s Probate Practice, Vol. 1, Chap. 2, Sec. 30. [4] See Estate of Kandlbinder, 183 Neb. 178, 159 N.W.2d 199; and Missouri P. Ry. Co. v. Bradley, 51 Neb. 596, 71 N.W. 283. [5] That once appointed, the administrator would be the proper party to raise any defenses that would have been' available to the decedent, see Schumacher v. Adams County Circuit Court, 225 Ind. 200, 73 N.E.2d 689; Re Smith’s Estate, 240 Iowa 499, 36 N.W.2d 815; and Thompson v. Weimer, 1 Wash.2d 145, 95 P.2d 772.