The opinion
Burling, J.
(dissenting). This civil action is a probate cause involving ancillary administration in this State of the alleged local estate of a foreign decedent. The complaint was filed with the Surrogate of Passaic County, certified to the County Court of Passaic County, and the proceedings subsequently were transferred to the Superior Court, Chancery Division (Passaic County) wherein an amended complaint was filed. The complaint and amended complaint were filed by Marion D. Keefe, as ancillary administratrix of the estate of Lawrence Y. Keefe, deceased (a foreign decedent, having resided at Pelham, New York), and as administratrix ad prosequendum in New Jersey of the Estate of Lawrence Y. Keefe, deceased, for the purpose of prosecuting an action against Port Murray Dairy Co., Inc., a corporation, and the estate of Prank T. Roche, deceased. The plaintiff by these proceedings sought the issuance, to *589 some fit person to be designated by the court, of ancillary letters of administration of the estate of Prank T. Roche, deceased (a foreign decedent, having been domiciled at the time of his death in the state of New York). The Superior Court, Chancery Division, on April 2, 1954, entered judgment of dismissal of the complaint and amended complaint and the plaintiff appealed. The appeal was addressed to the Superior Court, Appellate Division, but prior to hearing there was certified on our own motion.
On July 27, 1951 Prank T. Roche, residing in Briarcliffe Manor, Westchester, New York, was an owner of a certain automobile. Lawrence Y. Keefe and his wife, Marion D. Keefe, at that time resided in Pelham, New York. On the same date Prank T. Roche and Lawrence Y. Keefe were riding in Roche's automobile in Clifton,' New Jersey, and that automobile collided with a truck owned by Port Murray Dairy Co., Inc., a New Jersey corporation, which truck was operated by one Alfred Taylor. Prank T. Roche and Lawrence Y. Keefe died from injuries allegedly sustained as a result of that collision.
On October 22, 1951 Greta M. Roche was appointed administratrix of the estate of Prank T. Roche, deceased, by the Surrogate of Westchester County, New York.
On June 26, 1952 Marion D. Keefe was appointed administratrix ad prosequendum of the estate of Lawrence V. Keefe, deceased, by the Surrogate of Passaic County, New Jersey, to prosecute an alleged cause of action against the Roche Estate, Port Murray Dairy Co., Inc., and Alfred Taylor. She was also appointed by the Surrogate of Passaic County to be general administratrix (ancillary) for the purpose of receiving the benefits resulting from the right of action created by the New Jersey Death Act, N. J. S. 2A:31-6.
On April 10, 1953 the plaintiff, Marion D. Keefe, administratrix of the estate of Lawrence Y. Keefe, deceased, as aforesaid, instituted the present action, praying the appointment of an ancillary administrator of the estate of Prank T. Roche, deceased. *590 This appeal involves the construction and application of N. J. S. 3A :6-10, which reads as follows:
“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, ohoses in action or other personal property of the decedent within this state, or the evidence of dioses 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 nonresident, 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 supplied)
It is conceded by the defendants on this appeal that the plaintiff, who individually is a nonresident, has adequate status to qualify her as an applicant for ancillary administration under N. J. S. 3A :6-10, supra, because of her claim under the Death Act (N. J. S. 2A:31-1 et seq.). A question involved relating to the status of a nonresident creditor as a proper party plaintiff under N. J. S. 3A :6-10, supra, is therefore not necessary to the disposition of this appeal. However, in passing it is observed that the statute gives express authority to a nonresident of New Jersey in this respect to apply for appointment of an administrator. Of. Atlcinson, The Uniform Ancillary Administration and Pro-hale Acts, 67 Harvard L. Rev. 619, 624U627 (1954).
The questions involved in the disposition of the appeal are limited to whether there is property in New Jersey under N. J. S. 3A :6 — 10, supra, which may be the subject of an ancillary administration here, where the decedent (in this case, Roche) was the owner of a contract of liability insurance with a foreign corporation which is authorized to transact business in New Jersey and maintains an office here, or where the same decedent has a cause of action (which survives to his estate) for property damage arising out of *591 a collision in New Jersey. The facts pertinent to raise these questions were stipulated. A further question involved is whether the court may in its discretion refuse to grant letters of ancillary administration if assets exist in New Jersey.
I
The question is involved in this appeal whether under N. J. S. 3A :6-10, supra, a liability insurance policy constitutes property of a nonresident who met his death in an automobile collision in this State, in which the automobile covered by that policy was involved.
The initial construction of this statutory provision (N. J. S. 3A :6-10, supra) requires resort to the interpretation favored by the Legislature. In R. S. 1:1 — 2 (and in R. S. 1:1-2 as amended by L. 1948, c. 4, sec. 1; L. 1953, c. 4, sec. 1) the Legislature provided as follows:
“Unless it be otherwise expressly provided or there is something in the subject or context repugnant to such construction, the following words and phrases, when used in any statute and in the Revised Statutes, shall have the meaning herein given to them.
Personal property. ‘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.”
This statutory mandate is broad and when applied to the provisions of N. J. S. 3A :6-10, supra, seems clearly to require a construction that the decedent’s, Roche’s, interest in the liability insurance policy issued to him constituted “property” which passed to his estate. The insurance policy is at the very least a “written instrument by which any * * * debt or financial obligation” is either created or evidenced, and it is clearly included in the category “everything except real property * * * which may be the subject of ownership.” The only point of difficulty is whether *592 the situs of the policy is conceived to be in Yew Jersey for the purposes of the contemplated administration.
This presents a question novel to the jurisprudence of this State. The question has been directly disposed of in other jurisdictions, however, the general conclusion expressed elsewhere has been that the potential liability of the insurer is an asset of the estate, although collection of the proceeds (i. e., enforcement of the rights of the insured) may be dependent upon the establishment of a claim by a third person against the estate. Robinson v. Dana’s Estate, 87 N. H. 114, 174 A. 772 , 94 A. L. R. 1437 (Sup. Ct. 1934); Furst v. Brady, 375 Ill. 425 , 31 N. E. 2d 606 , 133 A. L. R. 558 (Sup. Ct. 1940); In re Vilas’ Estate, 166 Or. 115 , 110 P. 2d 940 (Sup. Ct. 1941); Davis v. Cayton, 214 S. W. 2d 801 (Tex. Ct. Civ. App. 1948); Shirley’s Estate v. Shirley, 334 Ill. App. 590 , 80 N. E. 2d 99 (App. Ct. 1948); Liberty v. Kinney, 242 Iowa 656 , 47 N. W. 2d 835 (Sup. Ct. 1951); Berry v. Smith, 85 Ga. App. 710 , 70 S. E. 2d 62 (Ct. App. 1952). Cf. Goodrich on Conflict of Laws (3d ed. 1949), sec. 178, pp. 535-536, sec. 184, p. 548; Stumberg, Conflict of Laws (2d ed. 1951), pp. 437-439. We are of the opinion that the law of this State is that the insurer’s liability under these circumstances is property of the decedent’s estate under N. J. S. 3A :6-10, supra, for the purposes of ancillary administration here.
The defendant’s argument was that the situs of the property in the insurance policy is in the domiciliary state. This was the rationale of Wheat v. Fidelity & Casualty Co. of New York, 261 P. 2d 493 (Colo. Sup. Ct. 1953) and In re Rogers’ Estate, 164 Kan. 492 , 190 P. 2d 857, 860-861 (Kan. Sup. Ct. 1948).
In the Wheat case, supra, the Colorado Supreme Court held that the situs of such an asset as the liability policy was at the domicile of the decedent, and quoting from the Rogers case, supra, made the following observation ( 261 P. 2d, at page 496 ) :
“■* * * A conclusion that this indemnity policy constitutes “estate” left by the nonresident decedent to be administered in Mar *593 shall county would mean this policy constitutes “estate” which may be administered in any county in Kansas and in any county of every other state of the union, with a similar statute, in which the insurer is authorized to transact business. We do not think the statute was intended to produce such a result.’ * * *”
While the observation of the Colorado Supreme Court, quoted ante, is a valid one, our statute is considerably more extensive than the Colorado statute construed therein, which referred merely to “estate.” The premise thus reduces itself to one of convenience. It seems that the action would not be brought except in a state where one of the parties involved in the occurrence (i. e., the motor vehicle collision) resides (or died domiciled), or in the state where the occurrence took place. A similar decision to the Wheat ease, supra, In re Rogers’ Estate, supra, turned on the point that even though the liability policy was personal property and part of the decedent’s estate, Kansas followed the rule that on death the situs of personal property of the decedent becomes fixed and local at his domicile.
In Kew Jersey the rule is otherwise. Chancellor Green in Banta v. Moore, 15 N. J. Eq. 97, 100-101 (Ch. 1862), held that although the right of succession to the personal estate is to be regulated by the law of the domicile:
“The principle is well settled, that the administration of the estate must be in the jurisdiction in which possession was taken and held of it under lawful authority; and where there are two administrators in different countries, each portion of it must be administered in the country where possession of it is taken under lawful authority. I Williams on Ex’rs. 356; 2 Ibid. 1414.”
Chancellor Green found that this principle of dual administration was established in the English law by, inter alia, Preston v. Lord Melville, 8 Clark & Fin. 1, 8 Eng. Rep. 1 (H. L. 1841), and that “The subject has been elaborately discussed, and the principle fully established by the highest judicial authority in this country. Harvey v. Richards, 1 Mason 381 [Fed. Cas. No. 6, 184, 11 Fed. Cas. p. 746 (Circ. Ct. Mass. 1818)]; Vaughan v. Northup, 15 Pet. 1 [ 40 *594 U. S. 1 , 10 L. Ed. 639 (1841)]; Story’s Conf. of Laws, § 513, 513a; 2 Kent’s Com. 431-435.” He further held:
“* * ?-• an tjjaj; can be required, if the fund in the hands of the foreign administrator is needed for the purposes of due administration in the place of the domicile, is its transmission or distribution after all the claims against the foreign administration have been duly ascertained and settled. Story on Conflict of Laws, § 518; 2 Williams on Ex’rs 1415.”
Cf. 3 Beale, Conflict of Laws (1935), sec. 465.3 et seq., pp. 1447 et seq.
A New York intestate’s royalties on copper ore, which he had pledged to secure his debt to a New Jersey corporation doing business in New York, have been held to “constitute assets in New Jersey” for the purposes of ancillary administration under the rule “that the chose of action is in the jurisdiction where you would have to go to enforce it, * * Wall v. American Smelting Refining Co., 91 N. J. Eq. 131, 134 (E. & A. 1919). Cf. Amparo Mining Co. v. Fidelity Trust Co., 75 N. J. Eq. 555 (E. & A. 1909). Caruso v. Caruso, 106 N. J. Eq. 130, 13A-135 (E. & A. 1929), is not to the contrary, turning in this respect on the absence of creditors in New Jersey and the fact that the royalties in question were not payable to the decedent’s estate. Cf. 6 New Jersey Practice (Clapp, Wills and Administration) (1950), sec. 393, pp. 268-269.
By Analogy, although it is not necessary that the insurance carrier be sued in New Jersey, it is undeniably true that action here would be proper in the event the insurance carrier failed to perform its obligation to the estate of Erank T. Roche, deceased, in connection with defense of the tort action or payment of any judgment recovered against the Roche estate by the Keefe estate or others.
II
A further question involved is whether the Roche estate’s alleged claim for property damage, against Port Murray *595 Dairy Co., Inc., and Alfred Taylor, is property in New Jersey under N. J. S. 3A :6-10, supra.
It was asserted by the plaintiff that the decedent, Roche, had a cause of action for property damage against Port Murray Dairy Co., a New Jersey corporation (and against its driver, Alfred Taylor) which under N. J. S. 3A :6-10, supra, is an asset of his estate. The defendants contended that a tort claim is not a chose in action under N. J. S. 3A :6-10, supra. We are of the opinion that such a claim is within the scope of the statute. Cf. § New Jersey Praclice, supra, see. 393, p. 269.
A chose in action is a personal right not reduced to possession but recoverable by a suit at law. Ballentine’s Law Dictionary (1930), p. 214. A chose ex delicto is a chose in action although it is not assignable in absence of statute. United States Casualty Co. v. Hyrne, 117 N. J. L. 547, 552 (E. & A. 1937); Weller Lichtenstein v. Jersey City, etc., St. Ry. Co., 68 N. J. Eq. 659, 662 (E. & A. 1905); Gaskill v. Barbour, 62 N. J. L. 530, 531 (Sup. Ct. 1898). Cf. East Orange Lumber Co. v. Feiganspan, 120 N. J. L. 410, 411-412 (Sup. Ct. 1938), affirmed 124 N. J. L. 127 (E. & A. 1939). It is observed that N. J. S. 2A:25-1 relating to assignments provides that “all ehoses in action arising on contract shall be assignable” (emphasis supplied). The limitation “arising on contract” is not contained in N. J. S. 3A :6 — 10, supra, relating to ancillary administration here of foreign de9edent's local estates, nor is there anything in N. J. S. 3A :6 — 10, supra, repugnant to the construction we have placed upon it. Vide R. S. 1 :l-2, supra.
The defendants contended that the purpose of the plaintiff was an attempt to avoid the decision expressed in Young v. Potter Title & Trust Co., 114 N. J. L. 561 (Sup. Ct. 1935), affirmed 115 N. J. L. 518 (E. & A. 1935), namely that nonresident service of process under the Motor Yehicle Act (R. S. 39:7-2, 3) did not render a foreign administrator liable to suit in this state in his representative capacity. We find no merit in this contention. The ancillary administration provision of the statutes of this State, namely L. *596 1898, c. 234, sec. 29, subsequently incorporated in R. S. 3 :7 — 11, the predecessor of N. J. S. 3A :6-10, supra, contained no words extending its provisions to nonresident creditors at the time of the decision in the Young case, supra. These words were added in the revision approved December 5, 1951, effective January 1, 1952, now N. J. S. 3A :6-10, supra.
The defendants have asserted that the refusal to appoint an ancillary administrator for the Roche estate at the application of the plaintiff is supportable upon the premise that if the Roche estate prevails in an action against the Port Murray Dairy Co., Inc. (and Alfred Taylor) then Roche was not negligent. The defendants, pursuing this supposition, assert that in such an event the Keefe action against the Roche estate would fall. There is in the record before us an indication that either one claim or the other might be supported if properly pursued. This being so, the appointment should be made in order that the opposing claims may be adequately aired in appropriate judicial proceedings wherein the parties have the right to trial by jury. The statute N. J. S. 3A :6-10, supra, does not require reduction to judgment of the conflicting claims in the proceedings for appointment of the ancillary administrator.
Ill
The final question involved is whether the trial court had the discretionary authority to deny the ancillary administration. The judgment of the trial court was not premised on this ground but upon alleged nonexistence of property in New Jersey within N. J. S. 3A :6~10, supra. The record does not indicate that this point was addressed to the trial court.
The defendants contended that N. J. S. 3A :6-10, supra, is permissive and that the denial of relief thereunder by the Superior Court, Chancery Division, did not constitute an abuse of discretion. The words of the statute have been held to be permissive. In re Sauer, 133 N. J. Eq. 548, 549 (Prerog. 1943). But denial of administration under the *597 circumstances of this ease coupled with the disposition of the questions hereinbefore discussed and decided would constitute an abuse of discretion.
The defendants’ contention that the Roche estate is amenable to suit in New York is no more than an assertion of the doctrine of forum non conveniens. While the record before us does not disclose all the evidence relating to the collision, it appears that essential witnesses are residents of New Jersey and the place of the occurrence being in New Jersey, a jury of view here might be obtained here and might be unattainable in New York. The principles concerning the application of this doctrine of forum non conveniens expressed in Gore v. United States Steel Corp., 15 N. J. 301, 305 et seq. (1954), require disposition of the present controversy in New Jersey courts under the circumstances disclosed in the present record. Further, if there is an asset of the estate which may be subjected to administration here it is apparent that a denial of the relief sought would work to the prejudice of residents of New Jersey, namely Port Murray Dairy Co., Inc., and (presumably) its truck driver, Alfred Taylor. The plaintiff has initiated action against these two parties and the courts of this State should be open to determination of the entire controversy arising out of the occurrence from which this litigation emanates, including such rights, if any, as may exist under the Joint Tortfeasors Contribution Law.
It was alleged by the defendants on oral argument that this application for ancillary administration is merely a device to overcome the effect of the alleged running of a statute of limitation of New York relative to the principal cause of action. A statute of limitation is one of repose and operates on the remedy merely and does not extinguish the right. Miller v. Bd. of Chosen Freeholders of Hudson County, 10 N. J. 398, 403 (1952); State by Parsons v. Standard Oil Co., 5 N. J. 281, 295 (1950); Chase Securities Corporation v. Donaldson, 325 U. S. 304, 305 , 65 S. Ct. 1137 , 89 L. Ed. 1628 (1945). In this respect statutes of limitation are usually considered to have procedural attributes and the law *598 of the forum governs. It is said: "That the statute of limitations of the forum is the applicable law of limitations is so well settled, in Anglo-American law at least, as to be beyond dispute.” 3 Beale, Conflict of Laws (1935), sec. 603.1 et seq., pp. 1620 et seq.; Goodrich, Conflict of Laws (3d ed. 1949), sec. 94, pp. 261-269; Stumberg, Conflict of Laws (2d ed. 1951), pp. 141-152; 34 Am. Jur., Limitation of Actions, sec. 51, p. 51; sec. 400, pp. 314-315; 11 Am. Jur., Conflict of Laws, sec. 191 et seq., pp. 505 et seq. Compare Hancock, Torts in the Conflict of Laws (1942), sec. 30, pp. 133 et seq. The disparity of the periods of limitation in the statutes of the two states is a matter of public policy to be determined by their respective legislatures. The defendants’ argument in this respect presents no sound objection to action in New Jersey, particularly in view of the doctrine of the convenience of the forum, hereinbefore reviewed.
The defendants’ arguments, except as they relate to the existence of assets in New Jersey (hereinbefore discussed), assert without verification that the plaintiff could bring the principal (tort) action against the Roche estate in New York but has not done so because of a statutory bar to her claim. The alleged statutory bar is subsection 6 of section 29 of the New York Workmen’s Compensation Law (McKinnon, Con-sol. Laws of New York, c. 61), which provides that the benefits thereunder "shall be the exclusive remedy” when an employee is injured or killed by the negligence or wrong of another in the same employ. See Stacy v. Greenberg, 14 N. J. 262 (1954). If this is so, it is a matter of defense which the ancillary administrator in New Jersey would have an opportunity to assert in the principal action in New Jersey against the Roche estate by the Keefe estate.
Por the reasons above expressed I vote to reverse the judgment of the Superior Court, Chancery Division, and to remand the cause for further proceedings consistent with the views expressed in this opinion.
Mr. Justice Waohefeeld and Mr. Justice Jacobs authorize me to state that they join in the views expressed in this ojoinion.
*599 For affirmance — Chief Justice Vanderbilt, and Justices Heher, Oliphant and Brennan — 4;
For reversal — Justices Wacheneeld, Burling and Jacobs —3.