Frei v. Brownlee

• Decision Date: 05 November 1952
• Docket Number: No. 5526,5526
• Citation: 1952 NMSC 99,56 N.M. 677,248 P.2d 671
• Parties: FREI v. BROWNLEE.
• Court: New Mexico Supreme Court

Page 671

248 P.2d 671

56 N.M. 677

FREI v. BROWNLEE.

No. 5526.

Supreme Court of New Mexico.

Nov. 5, 1952.

Hubert O. Robertson, Silver City, W. C. Whatley, LaFel E. Oman, W. B. Darden, Las Cruces, for appellant.

Bert E. Newland, Deming, Garland & Sanders, Las Cruces, for appellee.

PER CURIAM.

The opinion heretofore filed is withdrawn and the following is substituted therefor.

McGHEE, Justice.

This case arose out of an automobile accident which occurred on October 3, 1949, at about 7:40 p. m., at a point approximately twenty miles north of Deming, New Mexico, on U. S. Highway No. 260. The plaintiff, then of the age of five years, was riding with his family in an automobile driven by his father, Edward J. Frei, Sr. This automobile and one driven by the appellant's decedent, Roma Rea Brownlee, traveling in the opposite direction from the Frei automobile, collided in Frei's lane of travel after the Brownlee car struck a Dodge car parked partially on the pavement in the Brownled lane of travel. The plaintiff was seriously injured and Mrs. Brownlee received injuries causing her death a few days thereafter.

The case was tried to a jury which returned a verdict awarding the plaintiff $3,500 for actual damages and $17,500 as compensatory damages.

The first question raised in this appeal is whether a party seeking to recover damages for a tort against an administrator or executor of a deceased tortfeasor must file his claim for the injury in the probate proceedings, and follow the procedure required of one asserting a debt on contract, as a condition precedent to the institution of an action against an executor or administrator in the district court.

The question is one of first impression in this court.

The statutes relative to filing and proving ordinary contract claims read:

'It shall be the duty of the probate judge to hear and determine claims against the estate. All such claims shall be stated in detail, sworn to and filed, and five (5) days' notice of the hearing thereof, accompanied by a copy of the claim, shall be served on the executor or administrator, unless the same have been approved by the executor or administrator, in which case they may be allowed by the judge without such notice.' Sec. 33-802 N.M.S.A., 1941 Comp.

'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. * * *' Sec. 33-803, N.M.S.A., 1941 Comp.

We have uniformly held claims based on contract must be filed in the probate proceeding, and that a copy of the claim with notice of hearing must be served on the executor or administrator within the time limited, or be forever barred. Our latest expression on the subject was in McBeath v. Champion, 1951, 55 N.M. 114, 227 P.2d 625, where we reaffirmed our former decisions, and stated compliance with such requirements was a prerequisite to the filing of a suit on such a claim. In so holding we were following the rule of Counts v. Woods, 1942, 46 N.M. 273, 127 P.2d 398; In re Baeza's Estate, 1937, 41 N.M. 708, 73 P.2d 1351; In re Landers' Estate, 1929, 34 N.M. 431, 283 P. 49; and Buss v. Dye, 1915, 21 N.M. 146, 153 P. 74. In the Baeza and Counts cases, we state [41 N.M. 708, 73 P.2d 1353]:

'The statute of nonclaim was enacted to apprise the administrator and the probate judge of claims against the estate of decedents and to facilitate the closing of decedent's estates with safety.'

Admittedly, the plaintiff did not file a claim in the probate proceeding, although he did file his complaint in the district court a few days prior to the expiration of six months from the date of the qualification of the executor.

Initially we must determine whether the probate courts in New Mexico have constitutional power to hear and determine tort claims. Article 6, Sec. 23 of our Constitution, so far as applicable, reads:

'A probate court is hereby established for each county, which shall be a court of record, and, until otherwise provided by law, shall have the same jurisdiction as is now exercised by the probate courts of the Territory of New Mexico. * * *'

Such jurisdiction is contained in Ch. 90, Sec. 48, Laws of 1889, which provides:

'The probate courts shall have exclusive original jurisdiction, in all of the following cases, to-wit:

'The probate of last wills and testaments; the granting letters testamentary and of administration and the repealing or the revocation of the same; the appointment and removal of administrators; the appointment and removal of guardians of orphans and persons of unsound mind; the binding out of apprentices; the settlement and allowance of accounts of executors, administrators and guardians; the hearing and determination of all controversies respecting wills, the right of executorship, administration and guardianship; the hearing and determination of all controversies respecting the duties, accounts and settlements of executors, administrators and guardians; the hearing and determination of all controversies between master and those bound to him; the hearing and determination of all controversies respecting any order, judgment or decree in such probate courts with reference to any of the foregoing matters of which the probate courts are herein given exclusive original jurisdiction; * * *.'

Until the enactment of Ch. 79, Laws of 1941, following the rule of the common law, a cause of action against a tortfeasor for death by wrongful act was extinguished by the death of the tortfeasor before judgment was entered. Ickes v. Brimhall, 1938, 42 N.M. 412, 79 P.2d 942. Furthermore notwithstanding L.1884, c. 5, Sec. 1, providing survivorship for certain tort actions against deceased tortfeasors as, for instance, for fraud or deceit, neither before nor since statehood when our Constitution was adopted is there a single reported instance of probate courts exercising jurisdiction to pass upon a tort claim. So how may it reasonably be claimed that when our Constitution was adopted in 1911 continuing in force the jurisdiction theretofore exercised by probate courts, under which proviso the only jurisdiction ever exercised as to claims was confined to allowing or rejecting those upon contract, express or implied, they were given a jurisdiction never before exercised to pass upon tort claims?

We find a very similar constitutional provision regarding the jurisdiction of probate court in Illinois. In the case of Howard v. Swift, 1934, 356 Ill. 80, 190 N.E. 102, 104, the Supreme Court of that state had before it the identical question we have here. There a claimant filed a tort claim in the probate court against the executors of a decedent, dividing it under four subheads. The claim was dismissed in the probate court as being beyond the jurisdiction of the probate court. Like action was had in the circuit court on appeal to it, and the Supreme Court affirmed such action. We quote from the opinion:

'The jurisdiction of the probate court is defined and restricted by section 20 of article 6 of the state Constitution. So far as applicable to this case section 20 provides: 'Said courts, when established, shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons,' etc. The probate court, by virtue of the Constitution, is therefore not a court of general jurisdiction, but its jurisdiction is circumscribed and restrained by the Constitution. * * * Such court has no general equitable jurisdiction but can only exercise equitable power within the zone conferred by the Constitution. * * *

'Probate courts created either by constitutional provisions similar to ours or by statutory enactment akin to our constitutional provisions exercise jurisdiction only over claims growing out of contracts either express or implied, and do not have jurisdiction of claims ex delicto. In re Locher's Estate, (219 Pa. 42, 67 A. 953); Comstock v. Matthews, 55 Minn. 111, 56 N.W. 583; Evans v. Hoyt, 153 Ark. 334, 240 S.W. 409; Ferrill's Adm'x v. Mooney's Ex'rs, 33 Tex. 220; Feld v. Borodofski, 87 Miss. 727, 40 So. 816, 820; 11 R.C.L. 191. * * *

'The claimant also contends that the language employed in sections 60 and 70 of the Administration Act clearly comprehends the exhibiting in the probate court of all types of legal liabilities of the decedent, both ex contractu and ex delicto. In view of what we have heretofore said, if we are to give such sections the meaning urged by the claimant, such sections, in so far as they attempt to confer upon the probate court jurisdiction to hear and determine actions ex delicto, would be violative of section 20.'

The statutes of Mississippi provide all claims against the estate of a deceased person, whether due or not, shall be registered, probate, and allowed within a given time; yet, the courts of that state hold the statutes refer to contractual claims only, and not torts. The case of Boyd v. Applewhite, 1920, 121 Miss. 879, 84 So. 16, 25, arose on the following facts: The Kelley Banking Co. made excessive loans to one of its directors, Lowenberg. As a result the bank became insolvent. Lowenberg went into bankruptcy. Minority stockholders of the bank brought an action against the directors of the bank alleging mismanagement. The executrix of the estate of Lowenberg urged the action as against the estate of Lowenberg was barred because no claim had been probated. The court stated:

'It is next contended that the failure to register and probate the claim in the chancery court having jurisdiction of Lowenberg's estate within one year after the first publication of notice to creditors as provided by section 1775, Hemingway's Code, bars any action thereon. This...