Browning v. EState

• Decision Date: 18 February 1886
• Citation: 3 N.M. 659,9 P. 677
• Parties: BROWNINGv.Estate of BROWNING, Deceased.
• Court: New Mexico Supreme Court

3 N.M. 659

9 P. 677

BROWNING

v.Estate of BROWNING, Deceased.

Supreme Court of the Territory of New Mexico.

Filed February 18, 1886.

Appeal from district court, San Miguel county.

Where a claim against a decedent's estate is presented, before it is barred by the statute of limitations, for acceptance, and is not rejected by the administrator, the statute will cease to run.

T. B. Catron and John D. W. Veeder, for appellant.

O'Bryan & Pierce, for appellee.

BRINKER, J.

On November 1, 1872, C. R. Browning executed and delivered to M. E. Browning his promissory note for $1,000, due one day after date, with interest from date at the rate of 10 per cent. per annum, payable annually, and, if not so paid, to become a part of the principal, and bear the same rate of interest. On November 14, 1882, C. R. Browning died. This proceeding was commenced in the probate court of San Miguel county, where the note was allowed against the estate of decedent on July 10, 1884, from which Emma T. Browning, administratrix, appealed to the district court. The record shows that in 1883 one C. A. Rathbun acted as administrator, and that afterwards, and in 1884, Emma T. Browning acted as administratrix of the estate; but it nowhere shows the date of the letters of administration of either, and if those of Rathbun were revoked, such revocation does not appear.

In the district court, the note, with an indorsement of the payment of $100 on April 26, 1882, was introduced in evidence by plaintiff, over defendant's objection. To the note was attached an affidavit of plaintiff showing that he was the owner of the note, and the amount due upon it after allowing all just credits. This affidavit was offered in evidence by plaintiff, but rejected by the court. To this action of the court plaintiff saved an exception. Plaintiff then produced as a witness Jesus Maria Tafoya, who was duly sworn, and testified as follows:

“I am and have been for years clerk of the probate court of San Miguel county. [Here envelope, claim, and affidavit shown witness.] I know these. I received them, I think, by mail, through the post-office in Las Vegas, from the plaintiff's attorneys. They were not sent to me in my official capacity, but in my private capacity. Accompanying them was a letter from her attorneys, which I have now lost, and cannot find, which said that they had heard of me, and wanted me to put the claim in the hands of some good lawyer for collection against the estate. I think they came to me in my private capacity, and not officially, and that they came to me through the post-office. It came in this envelope. The claim was never marked filed. It was presented by John D. W. Veeder for approval in July, 1884.”

On the following day, said witness came voluntarily into court, and, after stating that he had more fully considered the matter and examined his correspondence, asked to correct his testimony as before given. He then testified as follows:

“I received this claim, and the affidavit attached to it, in this envelope, on or about the eighteenth day of May, 1883. I know this from correspondence from the attorneys, who sent it of that date, referring to this claim, and asking what had been done with it. The claim came by Wells, Fargo & Co.'s express. As I recollect, Jack Churchill, who was then my deputy-clerk, receipted for it to the express company, and handed it to me. I tore off the outside envelope, which I think was directed the same as this. I then, without opening it, placed it in my safe, in the office of the probate clerk and county judge, where it remained until the next regular term of the probate court, when I took it out, and gave it to the judge of probate court, while court was in session. The judge opened it, and found this claim and affidavit, and directed me to present it to C. A. Rathbun, then administrator of the estate of C. R. Browning, deceased, for approval. A few days afterward Rathbun came into the probate clerk's office, and I presented this claim and affidavit to him. Rathbun told me he would look at his books, and see if the claim was correct. I heard nothing more of it until July, 1884, when J. D. W. Veeder, as attorney for Mrs. M. E. Browning, made application to the probate judge to have the administratrix summoned to show cause why the claim should not be approved. The letter directing me to place the claim in the hands of some good attorney was received some time after the claim. The attorneys who sent the claim to me were dissatisfied by the delay, and then instructed me to place it in the hands of an attorney. I made no file-marks on any of these papers, nor is there any entry upon the records of my office showing when I received them. It is not customary in this office to put file-marks upon claims left there for presentation to the court, nor is it customary to make any record of them until some action is taken by the court.”

Plaintiff then offered a letter from C. A. Rathbun dated June 2, 1883, addressed to plaintiff's counsel in Pueblo, Colorado, in which he states, in substance, that he had received a letter from said counsel concerning plaintiff's claim against the estate; that decedent had, in his will, directed its payment; that he would approve the claim at the July term of court; that there was no necessity for incurring expense, as he would take pleasure in paying it as soon as he could in justice to the estate. This letter was rejected by the court, and plaintiff again excepted. The cause was submitted to the court without the intervention of a jury, and judgment was rendered for the estate. From this judgment M. E. Browning appealed to this court.

To sustain the action of the court below, defendant contends that the note was barred by the general statute of limitations, but, if not, then it was barred by the special statute of limitations, because, as she claims, it was not presented to the administrator for settlement within one year from the death of the maker. In support of the first proposition, counsel insist that the organic act of 1850 introduced here the common law of England, and that the statute of 21 Jac. I., limiting actions upon promissory notes to six years, thereby became the statute of limitations of this territory. Section 10 of the organic act is as follows: “The supreme court and the district courts, respectively, shall possess chancery as well as common-law jurisdiction.”

Did this section of the organic act bring into this territory the common law, in its broadest sense, or did it simply establish a system of procedure according to the course of the common law? In other words, did it bring into full operation the body of the common law, which creates, defines, limits, and extends the rights of persons and property? or did it merely give us a method by which rights already existing, defined, and limited by some other law should be enforced in courts created by that act?

Strange as it may appear, this question has never been decided by this court, although the judges have at various times let fall expressions which to the superficial reader would seem to indicate an opinion on the part of the court that the common law in its widest scope was in force here by virtue of the provisions of section 10, supra; but a careful examination of the decisions will show that the judges did not intend to be so understood.

Leitensdorfer v. Webb, 1 N. M. 34, was a case in which the rights adjudicated arose prior to the passage of the organic act, but the suit was commenced afterwards. In that case the court say:

“By the tenth section of the organic law it is provided that the supreme and district courts, respectively, shall possess chancery as well as common-law jurisdiction. Jurisdiction is properly the power to hear and determine causes. The common law, then, at least so far as to control and regulate the proceedings of the district court in the hearing and determining of causes, has been extended over this territory by act of congress, and that court, when it proceeds to hear and determine, must observe the course of proceeding prescribed by the common law, although the rights and liabilities of parties are to be determined according to the Mexican laws in force, and the acts of congress, and of the legislative assembly, applicable to the subject.”

In Pueblo of Laguna v. Pueblo of Acoma, 1 N. M. 220, it was contended that the action was barred by the statute of limitations. The court say: “If defendant intends to insist upon the statute of limitations, he should plead it.” But whether the court had in mind the statute of James I. or the Mexican law of prescription is left to conjecture. In Arellano v. Chacon, 1 N. M. 269, it was held that the district courts might try issues by juries, set aside verdicts, and grant new trials; that these high powers were expressly conferred as a part of the common-law jurisdiction established by the organic act. In Territory v. Maxwell, 2 N. M. 250, the court, in deciding a criminal case founded upon a territorial statute, declined to follow the rule laid down in England concerning the description of property in an indictment for embezzlement.

Thus it will be seen that this court, at the most, has only recognized the common-law procedure regulating issues, jury trials, setting aside verdicts, and granting new trials. We apprehend that in suits at law, involving more than $20, a jury could have been demanded, from the time of the Conquest, without regard to the organic act. The seventh amendment to the constitution expressly declares that in such cases the trial by jury shall be preserved. This provision is self-enforcing, and established the right to jury trials, independent of any action by congress or the legislature. So the fact that such trials have been had, adds no weight to the argument. Precisely what is meant by the term “common law”, as used in the section under consideration, seems never to have been accurately and clearly...