Bowman v. Butler

• Court: Court of Appeals of New Mexico
• Writing for the Court: DONNELLY
• Citation: Bowman v. Butler, 648 P.2d 815, 98 N.M. 357, 1982 NMCA 108 (N.M. App. 1982)
• Decision Date: 01 July 1982
• Docket Number: No. 5638,5638
• Parties: Marjorie BOWMAN, Personal Representative of the Estate of Edith E. Tyler, Plaintiff-Appellee, v. Jinx BUTLER, Personal Representative of the Estate of Clyde Tyler, Defendant-Appellant.

Page 815

648 P.2d 815

98 N.M. 357

Marjorie BOWMAN, Personal Representative of the Estate of Edith E. Tyler, Plaintiff-Appellee, v. Jinx BUTLER, Personal Representative of the Estate of Clyde Tyler, Defendant-Appellant.

No. 5638.

Court of Appeals of New Mexico.

July 1, 1982.

C. LeRoy Hansen, John P. Massey, Civerolo, Hansen & Wolf, P.A., Albuquerque, for defendant-appellant.

William J. Darling, Eaves & Darling, P.A., Albuquerque, for plaintiff-appellee.

OPINION

DONNELLY, Judge.

This action arises from a lawsuit filed by the personal representative of the deceased wife's estate against the personal representative of the deceased husband's estate. We granted defendant's application for an interlocutory appeal to consider the applicability of § 45-3-803, N.M.S.A.1978, to the following facts.

Marjorie Bowman, in her capacity as personal representative of the estate of Edith Tyler, deceased, (wife's estate), filed suit against Jinx Butler, the personal representative of the estate of Clyde Tyler, deceased, (husband's estate), alleging that the deceased wife, at the time of her death on December 16, 1980, was possessed of certain items consisting of her sole and separate property. Plaintiff alleged that the husband, in his capacity as personal representative of his wife's estate, wrongfully converted property of the wife, including miscellaneous jewelry, $75,000.00 in proceeds from the sale of an emerald ring and funds derived from the sale of bank stocks and mineral leases.

Following the appointment and qualification of the husband as the personal representative of his wife's estate and prior to the completion of the administration of his wife's estate, the husband died on March 1, 1981. At the time of his death, the husband had not yet filed an inventory in his wife's estate, but had posted a $100,000.00 bond to secure the faithful performance of his duties as administrator. Subsequent to the death of the husband, Marjorie Bowman, the wife's daughter, was appointed on May 20, 1981 as the successor personal representative of her mother's estate.

Probate proceedings of the husband's estate were commenced in the District Court of Bernalillo County, and Jinx Butler was duly appointed to serve as the personal representative of the husband's estate and to administer his last will and testament. In her capacity as personal representative of the husband's estate, Jinx Butler filed a notice to creditors, which was duly published in a legal newspaper in Bernalillo County on March 13 and 20, 1981. Neither Jinx Butler nor Marjorie Bowman were related by blood to Clyde Tyler. Jinx Butler was designated under the last will and testament of Clyde Tyler as the sole beneficiary of his estate.

Plaintiff filed suit on June 11, 1981 in the District Court of Bernalillo County against defendant. Defendant denied the allegations of any wrongful conduct on the part of the deceased husband in his capacity as personal representative of the wife's estate. Subsequently, defendant moved for judgment on the pleadings and summary judgment, on the ground that the non-claim statute, § 45-3-803(A)(1), supra, barred the claim, since the action was not filed within two months. The trial court denied defendant's motion for summary judgment and judgment on the pleadings. We affirm.

Defendant raises three points which we discuss jointly: (1) plaintiff's claim for damages, as set forth in her complaint, constitute the type of claim subject to the provisions of § 45-3-803(A)(1); (2) § 45-3-803(A)(1) is an absolute bar to the claim against the husband's estate because of untimely filing; and (3) the operation of § 45-3-803(A)(1) was not tolled by the fact that plaintiff's appointment as personal representative of the wife's estate did not occur until after the expiration of the statutory time limit for the filing of claims.

Defendant asserts that the notice to creditors, required by § 45-3-801, N.M.S.A.1978, and first published on March 13, 1981 in the husband's estate, had the effect of beginning the time period within which claims against his estate must be filed, and that plaintiff's lawsuit, commenced on June 11, 1981, was barred under the provisions of § 45-3-803(A)(1), supra, because it was filed more than 60 days after the date of the first publication of notice to creditors.

Plaintiff contends that the non-claim statute is not controlling because the bar provided by § 45-3-803(A)(1) is subject to certain applicable exceptions. Plaintiff also contends that the statute was tolled because the order appointing her as successor personal representative in the wife's estate was not entered until May 20, 1981, which was 68 days after the date of the first publication to creditors in the husband's estate.

The non-claim statute of the Probate Code, § 45-3-803, supra, specifies in pertinent part:

A. All claims against a decedent's estate which arose before the death of the decedent, ... whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort or other legal basis, if not barred earlier by other statutes of limitations, are barred against the estate, the personal representative and the heirs and devisees of the decedent, unless presented as follows:

(1) within two months after the date of the first publication of notice to creditors if notice is given in compliance with Section 3-801 (45-3-801 NMSA 1978) ...; or

(2) within three years after the decedent's death, if notice to creditors has not been published.

B. All claims against a decedent's estate which arise at or after the death of the decedent, ... whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort or other legal basis, are barred against the estate, the personal representative and the heirs and devisees of the decedent, unless presented as follows:

(1) a claim based on a contract with the personal representative, within four months after performance by the personal representative is due; and

(2) any other claim, within four months after it arises.

C. Nothing in this section affects or prevents:

(1) any proceeding to enforce any mortgage, pledge or other lien upon property of the estate; or

(2) to the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he is protected by liability insurance. (Emphasis supplied.)

Defendant asserts that plaintiff's claims against the husband's estate were tort claims, and that plaintiff is a "creditor" and the estate of the deceased husband is a "debtor" within the contemplation of § 45-3-803(A)(1). Defendant further contends that the allegations contained in plaintiff's complaint, and which form the basis for this action, are claims that arose prior to the death of the husband and thus are barred if not filed within two months of the date of the first publication of notice to creditors.

Plaintiff argues that the type of claim asserted by her on behalf of the wife's estate is excepted from the time constraints imposed in the non-claim statute under the provision of § 45-1-201(4), N.M.S.A.1978. This section provides:

"(C)laims," in respect to the estates of decedents ... includes liabilities of the decedent ... whether arising in contract, in tort or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes, demands or disputes regarding title of a decedent ... to specific assets alleged to be included in the estate ....

Under § 45-1-201(4), plaintiff contends that the nature of the relief requested in her complaint in essence constitutes a claim or dispute relating to the title to property of a decedent, and, hence, the claims were not barred by the provisions of § 45-3-803, supra. Alternatively, plaintiff seeks leave to amend her complaint to assert a claim of title to the property listed in her complaint.

Plaintiff's complaint did not allege a dispute or claim of title to property to the husband, and amendments that alter or change the theory of a case from that presented to the trial court are not permitted on appeal. Houston v. Young, 94 N.M. 308, 610 P.2d 195 (1980); Johnson v. Downs, 28 N.M. 210, 210 P. 224 (1922). She further argues that the action is excepted from the non-claim statute under § 45-3-804(B), N.M.S.A.1978, as a matter that would have been claimed in administration of the wife's estate, a proceeding pending at the time of the husband's death.

The determinative issue presented is whether the alleged conversion of property by the personal representative is the type of claim which must be filed within 60 days of the date of first publication of notice to creditors filed in the estate of the husband, or whether a longer period is allowed by law.

Defendant correctly cites the rule that timely filing of claims against a decedent's estate is mandatory, and, if not timely filed, the claims are barred as a matter of law. In Re Will of Skarda, 88 N.M. 130, 537 P.2d 1392 (1975); Matter of Estate of Oney, 95 N.M. 640, 624 P.2d 1037 (Ct.App.1981)...