Estate of Corwin, Matter of

Decision Date14 July 1987
Docket NumberNo. 9353,9353
PartiesIn the Matter of the ESTATE OF Elizabeth H. CORWIN, Deceased. MERCHANTS BANK AND TRUST COMPANY OF NORWALK, CONNECTICUT, A Connecticut Banking Corporation, Personal Representative, Plaintiff-Appellant, v. Ruth C. MEYER, Heir, Defendant-Appellee.
CourtCourt of Appeals of New Mexico
OPINION

BIVINS, Judge.

This appeal requires us to determine whether United States Treasury notes fall within the category of probate assets that calls for reduced compensation to personal representatives and attorneys for personal representatives. NMSA 1978, Sections 45-3-719 and -720 contain the provisions for calculating such compensation. Section 45-3-719 of the Probate Code provides:

Unless otherwise ordered by the court, a personal representative shall be entitled to a compensation of not more than ten percent on the first three thousand dollars ($3,000) and of not more than five percent on all amounts in excess of the first three thousand dollars ($3,000) upon property at its estimated value which shall come into his possession in his capacity as personal representative. However, if the property consists of the proceeds of life insurance policies, or cash, including checking accounts, time deposits, certificates of deposit, savings accounts, postal savings certificates and all United States government bonds, then the personal representative's compensation shall not exceed five percent of the first five thousand dollars ($5,000) and not exceed one percent on all amounts in excess of the first five thousand dollars ($5,000). No compensation or commission shall be paid on account of any real property, except such amount as may be allowed by the court upon proper cause being shown. [Emphasis added.]

Section 45-3-720 provides that attorneys shall be allowed the same amount as fixed for the personal representatives as fees for representing the personal representative, unless otherwise fixed by the court. We hold that United States Treasury notes are subject to the reduced compensation calculations, and, therefore, affirm the district court.

In this case, the Merchants Bank and Trust Company of Norwalk, as personal representative, and its attorney applied for and received an award of compensation which calculated the estate's United States Treasury notes under the first part of Section 45-3-719, that is, ten percent of the first $3,000 and five percent of amounts in excess of $3,000. At the time the personal representative petitioned to complete settlement of the estate, Ruth C. Meyer, daughter and sole beneficiary under decedent's will, objected to the compensation allowed the personal representative and its attorney. After a hearing, the district court entered an amended order reducing the compensation for the personal representative and its attorney. This reduction came about as a result of calculating the United States Treasury notes under the second part of Section 45-3-719, that is, five percent of the first $5,000 and one percent of amounts in excess thereof. The net effect of the order reduced the personal representative's and its attorney's compensation by some $6,279 each. They appeal.

This appeal requires us to apply principles of statutory construction. We find the correct approach in 2A N. Singer, Sutherland Statutory Construction Section 47.07 (Sands 4th ed. 1984):

A term whose statutory definition declares what it "includes" is more susceptible to extension of meaning by construction than where the definition declares what a term "means." It has been said "the word 'includes' is usually a term of enlargement, and not of limitation. * * * It, therefore, conveys the conclusion that there are other items includable, though not specifically enumerated. * * *"

(Footnote omitted.) This rule has found support in other jurisdictions. Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 62 S.Ct. 1, 86 L.Ed. 65 (1941); Smyers v. Workers' Comp. Appeals Bd., 157 Cal.App.3d 36, 203 Cal.Rptr. 521 (1984); Schwab v. Ariyoshi, 58 Hawaii 25, 564 P.2d 135 (1977); Janssen v. Janssen, 331 N.W.2d 752 (Minn.1983).

In our case, the general word "cash" is followed by the word "inclu...

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8 cases
  • An Or. Corp.. v. Yearout Mech.al Inc.
    • United States
    • New Mexico Supreme Court
    • June 17, 2010
    ...conveys the conclusion that there are other items includable, though not specifically enumerated.... In re Estate of Corwin, 106 N.M. 316, 317, 742 P.2d 528, 529 (Ct.App.1987) (alterations in original) (internal quotation marks and citation omitted). {14} The manner in which the Legislature......
  • Teton County Sheriff's Dept. v. Bassett
    • United States
    • Wyoming Supreme Court
    • July 25, 2000
    ... ... Shrader, 882 P.2d 813, 832 (Wyo.1994) ). We review denial of the motion for judgment as a matter of law taking as true all of the non-moving party's evidence with its reasonable inferences, ... 430, 660 A.2d 550, 551 (1995) ; Matter of Estate of Corwin, 106 N.M. 316, 742 P.2d 528, 529 (1987) ; North Carolina Turnpike Authority v. Pine ... ...
  • United Rentals Northwest v. Yearout Mechanical
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 24, 2009
    ... ... § 56-7-1 (2005) also raises the question of how to read the phrase "and includes." See In re Corwin, ... 573 F.3d 1003 ... 106 N.M. 316, 742 P.2d 528, 529 (Ct.App. 1987) (concluding that "included" ... ...
  • State v. Salazar, A-1-CA-34909
    • United States
    • Court of Appeals of New Mexico
    • February 28, 2018
    ...that in a New Mexico statute "the word ‘includes’ implies an incomplete listing"); In re Estate of Corwin , 1987-NMCA-100, ¶ 3, 106 N.M. 316, 742 P.2d 528 ("A term whose statutory definition declares what it ‘includes’ is more susceptible to extension of meaning by construction than where t......
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