Bogert's Will, In re

• Decision Date: 18 August 1958
• Docket Number: No. 6376,6376
• Citation: 1958 NMSC 104,64 N.M. 438,329 P.2d 1023
• Parties: In the Matter of the Last WILL and Testament of George BOGERT, Deceased. BOARD OF DIRECTORS OF The NEW MEXICO INSANE ASYLUM, Claimant-Appellant, v. Clara RUNKEL, Administratrix of the estate of George Bogert, Deceased, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 1023

329 P.2d 1023

64 N.M. 438

In the Matter of the Last WILL and Testament of George

BOGERT, Deceased.

BOARD OF DIRECTORS OF The NEW MEXICO INSANE ASYLUM, Claimant-Appellant, v. Clara RUNKEL, Administratrix of the estate of George Bogert, Deceased, Defendant-Appellee.

No. 6376.

Supreme Court of New Mexico.

Aug. 18, 1958.

Rehearing Denied Oct. 6, 1958.

Fred M. Standley, Atty. Gen., Alfred P. Whittaker, Fred M. Calkins, Jr., Asst. Attys. Gen., for appellant.

Hervey, Dow & Hinkle, W. E. Bondurant, Jr., John Jennings, Roswell, for appellee.

SADLER, Justice.

The question for decision is whether the ordinary non-claim statute barring recovery on a claim not presented and favorably acted upon by a personal representative within a fixed time operates against a State, its legal subdivisions or agencies.

The present appeal presents a single judgment entered in two cases, one originating in the probate court of Chaves County and removed by appeal to the district court of the county; the other originating in the district court of the county, where an order of consolidation of the causes for purposes of trial and judgment was subsequently entered and the proceedings thereafter treated as one case for purposes of judgment and appeal. The case originating in the probate court was docketed in the district court as No. 19,654 and the one originating in the district court bore district court docket No. 20,259.

The probate court case, later appealed to the district court, was a proceeding to probate the last will and testament of George Bogert, deceased, in which after probate the appellee on this appear was named as sole heir of George Bogert and appointed Executrix of his estate. Due notice to creditors was given and proof thereof filed in the probate court on June 17, 1954. Thereafter, on March 28, 1955, the appellant herein filed proof of claim in the probate court, attached to which was a commitment ordering confinement in the New Mexico State Hospital of Stella T. Bogert, wife of testator, signed by the district judge and dated January 28, 1933. The commitment order in addition directed appellee's testator to pay $35 per month for her care and maintenance, based on a finding she was not an indigent. The claim filed alleged the sum of $14,637, as to be then due and owing.

In due course and on September 9, 1955, the probate court entered a formal order denying the claim of New Mexico Hospital pursuant to an earlier oral announcement by the probate judge of his intention so to do made April 26, 1955. It was from the formal order denying the claim placed of record on September 9, 1955, that appellant, New Mexico Hospital, duly appealed to the district court, as aforesaid, on September 22, 1955.

It was subsequent to the foregoing proceedings in the probate court and the appeal to the district court of its order rejecting appellant's claim, that appellant instituted its separate suit in the district court of Chaves County by filing with the clerk of said court its claim against appellee. The complaint consisted of two separate causes of action, in the first of which judgment against appellee at the rate of $35 per month for care and maintenance pursuant to the order of the district judge committing testator's wife, was demanded; and in the second of which judgment against appellee for $11,166.75 was demanded for room, board and medical care supplied testator's wife from the fiscal year 1933-1934 through 1953-1954. An answer by appellee was filed denying liability and thereby putting the cause at issue.

A pre-trial conference was held on March 15, 1957, conducted by the district judge and by agreement of opposing counsel the causes were consolidated for trial and judgment. Following trial and on July 18, 1957, judgment was entered in favor of appellee, from which the appellant on the same day was allowed an appeal. In its amended praecipe filed in the cause, the appellant merely called for the record proper. This was followed a few days later by a counter-praecipe filed by appellee, requesting the bringing up of all the testimony and proceedings, in addition to the record proper already called for by appellant.

The appellant presents the merits of its appeal under two points, a decision of either of which in its favor would result in overturning the judgment of the trial court and directing entry of judgment in its favor upon remand. First, say appellant's counsel, the probate court of Chaves County never had any jurisdiction over the subject matter of this action because the subject matter of the claim is not a contract claim such as is contemplated by our statute of non-claim (L.1882, c. 1) 1953 Comp. Sec. 31-8-3 et seq. And, as a second proposition they assert, even if it be assumed the probate court had jurisdiction over the subject matter the claim of the sovereign was timely filed and should have been allowed, since the nonclaim statute does not run against the sovereign.

In support of their first point, appellant's counsel place great reliance on our decision in Frei v. Brownlee, 56 N.M. 677, 248 P.2d 671, as well as several other New Mexico cases used arguendo, as well as decisions of other sister states. So well satisfied are we, however, that appellant must prevail on its second challenge to the correctness of the judgment rejecting its claim, that we are moved to rest our decision upon it and leave the question put forward by its first point to a later day when resolving it is compelled by the factual situation involved.

The question thus presented is one of first impression in New Mexico, as both counsel agree, and which we find no basis for disputing. The statute relied upon as barring this claim, although amended from time to time over the years, was enacted as long ago as 1882 (L.1882, c. 1). In all material respects it still carries provisos found in its original enactment, save as to the time within which the bar attaches. We quote from 1953 Comp. Sec. 31-8-3, as follows:

'All claims against the estates of deceased persons not filed and notice given, as provided in the preceding section within six (6) months from the date of the first publication of notice of the appointment of the executor or administrator, shall be barred. * * * No suit upon any claim shall be maintained unless the same be begun within twelve (12) months after the date of first publication of said notice of such appointment. * * *.'

Section five (5) of the same act (1953 Comp. Sec. 31-8-5) 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 district court or bring his action therefor against the executor or administrator in the district court within six (6) months after the rejection of the claim by the probate court, and not afterward; but no such appeal shall be taken or action brought more than twelve (12) months after the first publication of notice of the appointment of the executor or administrator. * * *.'

We take it neither the appellee nor her counsel have fault to find with the generally accepted doctrine, not only in New Mexico but in the sister states as well, that statutes of limitation do not run against the sovereign unless it is expressly or by necessary implication provided. See, 53 C.J.S. under topic Limitations of Actions Secs. 14 and 15, at pages 939, 940 et seq. We are not unmindful, however, there is a difference between the general statute of limitations and the non-claim statute, although in many respects they are quite similar in their objectives. In In re Kenney's Estate, 41 N.M. 576, 72 P.2d 27, we held the nonclaim statute to be mandatory, thus giving even greater efficacy to it than to the general statute of limitations. This is in line with the general doctrine as set forth by Woerner's American Law of Administration (3rd Ed.) page 1326, Sec. 402. It is interesting to note, too, that the author, Woerner, calls attention on page 1332 of his work to the holding that the statute of non-claim affects only the remedy and is subject to the will of the legislature.

In the case of Directors of Insane Asylum of New Mexico v. Boyd, 37 N.M. 36, 17 P.2d 358, 359, we had occasion to speak at some length on the application of the general statute of limitations, in a case very much like the present between this same appellant under a different corporate name and the guardian of an insane inmate for her care and maintenance. Among other things, touching a plea of the statute of limitations, we said:

'Appellants maintain that their plea of the statute of limitations should have been sustained. The asylum is a state institution (section 1, art. 14, Const.), controlled by its officials and maintained at public expense. It directors are appointed by the Governor of the...