Hamilton, Matter of
| Decision Date | 19 November 1981 |
| Docket Number | No. 13109,13109 |
| Citation | 1981 NMSC 120,637 P.2d 542,97 N.M. 111 |
| Parties | In the Matter of the Last Will and Testament of W. A. HAMILTON, Deceased: Evelyn AIKENS and Hal Hamilton, Legatees-Appellants, v. Jack HAMILTON, Executor and Estate of W. A. Hamilton, Appellees. |
| Court | New Mexico Supreme Court |
On rehearing, the opinion filed October 6, 1981 is withdrawn and the following opinion is substituted.
W. A. Hamilton died on September 18, 1968. He left a will dividing his considerable property among his widow, three children, and grandchildren. The residue of his estate was to be divided equally between his children, Jack, Hal and Evelyn. Jack was nominated in the will to be executor of the estate. The decedent's will was admitted into probate in 1968, however, because of challenges to the will by his widow and disputes among the residuary legatees, the final account and report was not filed until June 1976. Hal and Evelyn filed objections to the final account and report that were heard on October 29, 1979. The objections concerned disbursements made to Jack. After the hearing on the objections, the trial court ruled in favor of the executor and approved the final account and report.
Evelyn Hamilton Aikens and Hal Hamilton (objectors) raise six points in this appeal. We reverse and remand.
We restate the points raised on appeal as follows:
I. Whether the court exercised its independent judgment in adopting, almost verbatim, the findings of fact and conclusions of law submitted by the executor.
II. Whether there was a valid agreement between the executor and objectors that resolved unfiled claims against the estate.
III. Whether the court erred in approving the final account and report that contained disbursements made to the executor for which no claims were filed.
IV. Whether the estate is entitled to be reimbursed for the use of estate property and improper disbursement of funds by the executor.
V. Whether the court erred in approving additional executor's fees, in not removing the executor and in not forfeiting his fees for misconduct.
VI. Whether the court erred in approving attorneys' fees claimed by the executor.
In this case, the executor filed 29 requested findings of fact and 12 requested conclusions of law. The objectors filed 226 requested findings of fact and 20 requested conclusions of law. The trial court stated 30 findings of fact and 12 conclusions of law that were substantially the same as those requested by the executor.
Findings of fact and conclusions of law adopted by the trial court must show the exercise of the court's independent judgment. Mora v. Martinez, 80 N.M. 88, 90, 451 P.2d 992, 994 (1969). The court may not rely on counsel to prepare findings that support his judgment. Pattison Trust v. Bostian, 90 N.M. 54, 559 P.2d 842 (Ct.App.1976), cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977). This does not mean that the trial court cannot incorporate the findings submitted by counsel in those adopted. Jesko v. Stauffer Chemical Company, 89 N.M 786, 558 P.2d 55 (Ct.App.1976). We recently held that absent an indication of the abdication of judicial responsibility, the adoption of findings of fact and conclusions of law similar to those requested by counsel are proper. Sisneros v. Garcia, 94 N.M. 552, 613 P.2d 422 (1980). Even the adoption of verbatim findings is not in error if they are supported by the record. United Nuclear Corp. v. General Atomic Co., 93 N.M. 105, 122, 597 P.2d 290, 307, cert. denied, 444 U.S. 911, 100 S.Ct. 222, 62 L.Ed.2d 145 (1979).
After reviewing the record in this case, we find that the findings of fact and conclusions of law are sufficient. We cannot say that the trial court abdicated its responsibility by adopting findings of fact and conclusions of law similar to those requested by the appellees.
Objectors argue that the court erred in determining that the heirs entered into an agreement to settle their claims against the estate. Objectors further argue that the executor, who was one of the heirs, violated his fiduciary duty to the other two heirs in obtaining their signatures on the agreement.
The executor had a number of personal unfiled claims against the estate. In consideration for giving up these claims, he had agreements, as to the distribution of the residue of the estate, prepared and signed by the objectors and himself. The executor was to receive $56,000 and the objectors $6,000 each under the agreement.
Hal Hamilton claims that, because of his history of alcoholism, he does not know if he signed the agreement or where or why he signed it. Evelyn Aikens claims that she signed the agreement only because the executor threatened and intimidated her. They both also allege fraud against the executor in obtaining their signatures.
The trial court correctly found no fraud by the executor. The transcript shows no evidence of fraud in obtaining the signatures of the other heirs. However, the court erred in finding that the executor did not exercise undue influence over Hal Hamilton and Evelyn Aikens and that he did not abuse his fiduciary relationship in regard to the objectors.
When a transaction between an executor and the beneficiaries under a will is called into question, the executor has the burden of showing that he acted in good faith. See Woodson v. Raynolds, 42 N.M. 161, 76 P.2d 34 (1938). Undue influence will be presumed when the fiduciary exercises a strong dominate relationship and thereby obtains benefits for himself against the interest of the beneficiaries. See Galvan v. Miller, 79 N.M. 540, 445 P.2d 961 (1968).
The transcript in this case is replete with evidence of the executor's total domination of the objectors in the handling of the estate. He handled it as if it were his own property. In addition, he did not even advise the objectors of the fact that all of the claims that he purportedly had against the estate were barred by Section 31-8-3, N.M.S.A.1953, because they had not been filed in time. Nor could the executor explain how he determined the sum of $56,000 for his unfiled claims or show documentation to support the alleged claims. The executor occupied a strong dominant position in this relationship; therefore, it is proper to presume the existence of undue influence. Galvan v. Miller, supra.
After reviewing the entire transcript, we hold that the trial court's finding was contrary to the evidence and cannot be supported. The agreement was obtained by the exercise of undue influence and cannot stand.
The executor made certain disbursements to himself, on the advice of counsel, without filing claims against the estate or obtaining approval by the court. They were:
a) payment of $9,000 for salary allegedly due from the deceased from January to September 1968;
b) reimbursement of $4,000 for a set of scales installed after decedent's death, on the ranch property inherited by the executor; and c) reimbursement of $3,207.30 for ranch expenses and "interest" paid by the executor personally on a loan that he had obtained to pay ranch expenses.
Section 31-8-3, N.M.S.A.1953, which controls this case, states:
All claims against the estate of deceased persons not filed * * * within six (6) months from the date of the first publication of notice of the appointment of the executor * * * * shall be barred * * * * (Emphasis added.)
Executor concedes that he did not file his claim in compliance with the statute, but alleges that objectors cannot attack the final account because the objections filed by objectors were not sufficiently stated to comply with the requirements of Section 31-12-11, N.M.S.A.1953 (Supp.1975).
Any heir at law, devisee, legatee, creditor or other person interested in the estate shall * * * before * * * such hearing and settlement, file his objections thereto, or to any particulars thereof, specifying the particulars of such objections* * * *
Neither side included in the transcript for this appeal, the original objections to the final account and report. However, the objections to the final account and report are on file in this Court from two previous appeals. In Matter of Will of Hamilton, 91 N.M. 129, 571 P.2d 121 (1977), the trial court, after ruling that the filing of the original objections had been untimely, was reversed in an opinion written by Justice Sosa. In Matter of Will of Hamilton, No. 12, 146, Mar. 14, 1979, Justice Federici, by decision, affirmed the trial court's refusal to hear the objector's amended objections. Under New Mexico Appellate Civil Procedure Rule 8(d), N.M.S.A.1978, "(t)he fact that parts of the record are not included in the transcript shall not prevent the parties or the appellate court from relying on such parts." In accordance with Justice Federici's 1979 decision, we considered only the original objections to the final account and report and find them to be sufficient under the statute.
Since the payments made by the executor to himself were not based upon claims filed, Section 31-8-3, N.M.S.A.1953, nor were they paid pursuant to motion and order of the court, Section 31-8-2, N.M.S.A.1953, they are improper and cannot be allowed.
The executor purchased a new 1969 pickup truck, trading in a 1966 pickup truck owned by...
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