159 P.2d 761 (N.M. 1945), 4873, Levers v. Houston

Docket Nº:4873.
Citation:159 P.2d 761, 49 N.M. 169, 1945 -NMSC- 017
Opinion Judge:SADLER, Justice.
Party Name:LEVERS et al. v. HOUSTON.
Attorney:G. T. Watts, O. O. Askren, and Frazier & Quantius, all of Roswell, for appellants. A. B. Carpenter, of Roswell, for appellee.
Judge Panel:MABRY, C.J., and LUJAN, J., concur. BICKLEY, Justice (dissenting). BRICE, Justice (dissenting). I concur in the opinion of BICKLEY, J.
Case Date:April 12, 1945
Court:Supreme Court of New Mexico

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159 P.2d 761 (N.M. 1945)

49 N.M. 169, 1945 -NMSC- 017

LEVERS et al.



No. 4873.

Supreme Court of New Mexico

April 12, 1945

Rehearing Denied July 6, 1945.

Appeal from District Court, Chaves County; Luis E. Armijo, Judge.

Joint appeal by Grace L. Levers, administratrix of the estate of Ray E. Levers, deceased, and Frances Dale from an order of the probate court allowing the claim of L. N. Houston against decedent's estate. From a judgment dismissing their appeal, Grace L. Levers, administratrix, and Frances Dale appeal, and H. H. Houston, having acquired by assignment claimant's interest in claim and judgment thereon, is substituted as claimant-appellee.

Judgment affirmed.

[49 N.M. 170]

G. T. Watts, O. O. Askren, and Frazier & Quantius, all of Roswell, for appellants.

A. B. Carpenter, of Roswell, for appellee.

SADLER, Justice.

This is an appeal from a judgment of the district court of Chaves County, dismissing a joint appeal to that court by Grace L. Levers, as administratrix of the estate of Ray E. Levers, deceased, and Frances Dale, one of his heirs at law, from an order of the probate court allowing appellee's claim against the estate.

The decedent died on October 1, 1941, and following his death his wife, Grace L. Levers, was appointed administratrix of his estate by the probate court of Chaves County. She duly qualified and published statutory notice of her appointment in the Roswell Morning Dispatch with a publication[49 N.M. 171] beginning October 11, 1941. In due course of administration the claim of L. N. Houston against the estate upon a promissory note executed by the decedent in his lifetime was allowed in the sum of $2,497.97, plus interest as specified in the order

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of allowance entered August 8, 1942. On November 2, 1942, the administratrix was granted an appeal to the district court from the order allowing the claim and appeal bond was fixed by the probate judge at the sum of $5,000.

The appeal was duly docketed in the district court, whereupon the claimant, L. N. Houston, moved to dismiss the same as having been unseasonably sued out since more than twelve months had expired after publication of first notice to creditors on October 11, 1941, before the appeal was sought on November 2, 1942. Thus, so urged claimant in the motion filed, the district court was without jurisdiction to entertain the appeal.

Thereafter, and on November 29, 1943, Frances Dale, a daughter and one of the heirs at law of decedent, entered her appearance in the district court by filing written objections to the allowance of the claim upon several grounds, among them, that it was barred by the statute of limitations and that security for the note, represented to decedent as ample to pay the same, had been released without notice to him. The case was promptly heard upon objection filed by the heir, Frances Dale, with whom the administratrix aligned herself in support thereof. The trial judge made an interlocutory ruling at the outset of the hearing, denying the motion to dismiss theretofore filed by the claimant, L. N. Houston, the appellee, who will hereinafter be so designated. The administratrix and daughter will be called appellants, save where necessary to differentiate between them.

Within three of four weeks after the hearing, each side filed requested findings of fact and conclusions of law. They appear never to have been considered or acted upon by the court. The matter remained in this status from January until April, 1944, when seemingly the appellee asked reconsideration of his motion to dismiss for on April 7, 1944, the record discloses entry of an order sustaining the motion upon the jurisdictional ground that the purported appeal had not 'been perfected in time.' It is from the judgment dismissing the appeal that Grace L. Levers, as administratrix of the decedent's estate, and Frances Dale, as one of his heirs at law, prosecute this appeal.

With this factual background in the record, we have for decision the question whether an appeal by an administratrix to the district court from an order allowing a claim, obtained within 90 days of such order pursuant to 1941 Comp., Sec. 16-418 (the general statute governing appeals from the probate court to the district court) vests the district court with jurisdiction to conduct a trial de novo of such claim, notwithstanding the fact that the appeal was 'taken * * * more than twelve (12) months after the first publication of notice of the appointment of the [49 N.M. 172] * * * administrator,' beyond which time appeals of the kind in question are expressly prohibited by 1941 Comp., Sec. 33-805.

After carefully considering the applicable statutes, we are forced to the conclusion that the appeal from the probate court to the district court is controlled by 1941 Comp. Sec. 33-805, and not having been taken within the time limited by the statute, the district court was without jurisdiction to entertain the same. Accordingly, the motion to dismiss the appeal was properly sustained. The appellants admittedly took their appeal under the general statute, 1941 Comp. Sec. 16-418, authorizing an appeal from the probate to the district court within 90 days by a person aggrieved by any decision of the probate court. If such statute be controlling, the appeal was sought in time. The judgment complained of was rendered August 8, 1942, and the appeal therefrom was allowed on November 2, 1942. The appellants rest their case upon the applicability of this statute.

When, however, the judgment from which an appeal is sought is one allowing or rejecting a claim against an estate then in the course of administration, we find a special statute prescribing the time within which the appeal must be sought. 1941 Comp. Sec. 33-802, makes it the duty of the probate judge to hear and determine all claims against the estate. It requires that all such claims shall be stated in detail, sworn to and filed and five days notice of the hearing thereof, accompanied by a copy of the claim, shall be served on the executor or administrator, unless approved by him, in which case it may be allowed by the probate judge without such notice.

Next, it is provided by Sec. 33-803 that all claims against the estates of deceased persons not so filed and notice given as just indicated, within six months from the date of the first publication of notice of the appointment of the executor or administrator,

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shall be barred. This section further provides that no suit upon any claim shall be maintained unless the same be begun within twelve months after the date of first publication of the notice of appointment.

Finally, having prescribed the time and manner of presenting claims against a decedent's estate, the legislature took up the matter of their allowance or rejection and of appeals from orders thereon. 1941 Comp., Sec. 33-805, insofar as material provides:

'All claims filed and not expressly admitted in writing signed by the executor, shall be considered as denied without any pleading on behalf of the estate. If a claim filed against the estate is not so admitted, the court may hear and allow the same or may reject it. In the latter case the claimant may appeal to the...

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