Hickok's Will, In re

• Decision Date: 12 March 1956
• Docket Number: No. 6012,6012
• Court: New Mexico Supreme Court
• Parties: In the Matter of the Last WILL and Testament of Arthur S. HICKOK, Deceased. TOLEDO SOCIETY FOR CRIPPLED CHILDREN, Riverside Hospital, Mercy Hospital, Toledo Community Chest, Toledo Chapter American Red Cross, Toledo Hospital, Starr Commonwealth for Boys, Toledo Society for the Blind, Little Sisters of the Poor, Toledo District Nurse Association, Toledo Public Health Association, Lutheran's Orphanage & Old Folks' Home, Boy's Republic, Trinity English Evangelical Lutheran Church, Jewish Federation, Old Ladies' Home of Toledo (a/k/a Old Folks' Home of Toledo), Adams Street Mission & Day Nursery, Madison Baptist Church, School Board of Madison, Ohio, Movants-Appellants, v. TOLEDO TRUST COMPANY, a corporation, Walter G. Kirkbride, Carl F. Eisenhour, and Clarence H. Hickok, Executors of the Last Will and Testament of Arthur S. Hickok, Deceased, and Ruth Hickok Marvin, Respondents-Appellees.

Page 866

297 P.2d 866

61 N.M. 204

In the Matter of the Last WILL and Testament of Arthur S.

HICKOK, Deceased.

TOLEDO SOCIETY FOR CRIPPLED CHILDREN, Riverside Hospital,

Mercy Hospital, Toledo Community Chest, Toledo Chapter

American Red Cross, Toledo Hospital, Starr Commonwealth for

Boys, Toledo Society for the Blind, Little Sisters of the

Poor, Toledo District Nurse Association, Toledo Public

Health Association, Lutheran's Orphanage & Old Folks' Home,

Boy's Republic, Trinity English Evangelical Lutheran Church,

Jewish Federation, Old Ladies' Home of Toledo (a/k/a Old

Folks' Home of Toledo), Adams Street Mission & Day Nursery, Madison Baptist Church, School Board of Madison, Ohio, Movants-Appellants, v. TOLEDO TRUST COMPANY, a corporation, Walter G. Kirkbride, Carl F. Eisenhour, and Clarence H. Hickok, Executors of the

Last Will and Testament of Arthur S. Hickok, Deceased, and

Ruth Hickok Marvin, Respondents-Appellees.

No. 6012.

Supreme Court of New Mexico.

March 12, 1956.

Rehearing Denied May 25, 1956.

Hervey, Dow & Hinkle, W. E. Bondurant, Jr., S. B. Christy, IV, Roswell, for appellants.

Gilbert, White & Gilbert, Santa Fe, for Ruth Hickok Marvin.

Noble & Noble, Las Vegas, for executors.

McGHEE, Justice.

The appellants are nineteen of twenty named charities for whom provision was made under testamentary trust provisions in the will of Arthur S. Hickok, deceased, who died in 1945. These charities appeal from the denial of their motion in the court below, the District Court of Lincoln County, to set aside its final decree in ancillary probate proceedings upon the estate of said decedent, who at the time of his death was a resident of and domiciled in Ohio.

The basis for said motion was that the charities were 'devised a remainder interest' in the properties of Hickok situated in this state; that although the charities were 'devisees' under the will, they were not served with notice as to the pendency of the estate in New Mexico nor of the hearing upon the final account and report of the executors; that the final decree is void as to the charities and should be vacated.

The appellees are the executors and Ruth Hickok Marvin, decedent's daughter.

Appellants have raised three points on this appeal: (1) That the statute purporting to vest in the district courts of this state jurisdiction concurrent with that of the probate courts over the administration of estates, Sec. 16-3-20, NMSA, 1953 is unconstitutional; (a point raised first in this Court) (2) That the final decree is void as to them because they were not served with notice of hearing upon the final account and report; (3) That the trial court erred in not admitting in evidence an exhibit said to contain admissions by some of the executors that they still held certain stock which was an asset of the corpus of the trust estate established by the will of decedent, and which exhibit is further said to have a bearing upon the issue of laches on the part of appellants asserted by appellees in the lower court.

Before proceeding to the merits of the issues raised, we must reckon with established juristic principles. It is certain that this Court does not sit to decide abstract questions. Valencia Water Co. v. Neilson, 1920, 27 N.M. 29, 192 P. 510; Hatch v. Keehan, 61 N.M. 1, 293 P.2d 314. Further, we have held time and again we would not 'sit in judgment upon the action of the legislative branch of the government, except when the question is presented by a litigant claiming to be adversely affected by the legislative act on the particular ground complained of.' Asplund v. Alarid, 1923, 29 N.M. 129, 219 P. 786, 790.

Upon the basis of these rules and our holding in In re Santillanes, 1943, 47 N.M. 140, 138 P.2d 503, considered hereafter, it is urged by appellees that appellants have no standing to question the validity of Sec. 16-3-20, supra, on constitutional grounds.

Appellants counter with argument they do have standing to challenge the constitutional validity of such section because of their assertion the final account and report shows certain burdens were saddled on the New Mexico property of decedent and appellants, owning or claiming an interest therein, should be apprised of such burdens.

The final account and report is complained of in these respects. First, complaint is made that the final account of the executors states that all expenses have been paid, i. e., filing fees, publication costs, appraiser's and attorney's fees, but the report does not state who paid the expenses, the amounts so expended or what portion of expenses was chargeable to the New Mexico properties. In this connection appellants point to the fact that although the final account states that no claims were filed against the estate, a later paragraph therein alleges that all claims have been paid. Also, appellants argue that since $379,629.39 was allowed for deductions on the state succession tax that it is reasonable to assume that some portion of this sum represents expenses and claims pertaining to the New Mexico probate and that they should be advised of the necessity for and the amount of such expenses.

It is next argued that no income is listed in the final account, although part of the property owned by decedent in New Mexico was a ranch, presumably operated during the two years while the estate was in probate.

Lastly, appellants point to the fact that the account and report states that the executors have conveyed the New Mexico properties but it is not stated to whom conveyance was made, for how much, or what happened to the purchase money.

Upon examination of the interests claimed by appellants under decedent's will, we must agree with appellees that the matters complained about by appellants respecting the final account and report resulted in no detriment to them.

Under the will the corpus of the Hickok estate, excepting certain specific bequests, is left to designated trustees. For twenty years the trustees are to divide the net income between testator's daughter and son (his widow having elected not to take under the will) and a class of employees of the Hickok Oil Corporation of Ohio. At the expiration of such period the trustees are directed to divide the assets in their possession into five funds of varying specified percentages which shall be distributed to the charities.

The will further provides that until distribution is made of the corpus of the trust no beneficiary other than members of testator's family may assign or otherwise deal with any possible interest they may have; that if alienation be attempted or attachment levied upon such interest, the absolute right of the beneficiary to take shall cease and terminate. The will directs that no charity shall take thereunder unless it can do so without creating inheritance or estate tax liability. It is noted in this connection that Sec. 31-16-1, NMSA, 1953, provides that gifts to foreign charities are tax exempt only if the property so passed shall be used within this state and if the law of the state of the domicile of such charity grants reciprocal exemptions.

The trustees are given extensive powers of management over the trust estate, including the right to sell, pledge, or otherwise dispose of the trust assets, the right to invest and reinvest the proceeds, the right to determine whether money or property coming into their possession shall be treated as principal or income, and to compromise, arbitrate and adjust claims relating to the trust estate. They are also given power to make inventory and appraisal of the trust estate and to make distribution in kind when any distribution of the principal is made; their decision in such case shall be binding upon the beneficiaries.

The will recognized a contract entered into in 1937 between the testator and Harry Reynolds whereby it was provided for the incorporation of Hickok & Reynolds, Inc., an Ohio corporation, to which the assets of the partnership of Hickok and Reynolds would be transferred. The executors were directed by the will to join in a transfer of the partnership assets to the corporation in exchange for half of the stock therein. The real estate which the decedent owned in New Mexico was held in partnership with Reynolds.

Reverting, then, to the matters in the final account and report to which appellants object, we note that the final account alleges that all expenses in connection with the New Mexico proceeding were paid by the executors and that resort to the real estate was unnecessary. This allegation is carried forward as a finding in the final decree and the fact stated that no charge of any kind exists against the estate. Since whatever interest the appellants have in the estate could only be asserted in our courts against the New Mexico realty, and since no resort to it for any payments was made and no charge placed thereon, we cannot see that there is any detriment to appellants on this score.

Because the appellants have no interest in the income from the trust properties under the express terms of the will, the failure of the executors to report income received from New Mexico properties, if any, does not work to their detriment either.

As to the matter of the conveyance of the New Mexico properties, it is not true that the final account and report does not state to whom the properties were conveyed. Paragraphs 12 and 13 thereof are as follows:

'That under the terms of Item XIV of the said Last Will and Testament of said Arthur S. Hickok, deceased, and pursuant to the agreements therein mentioned, the undersigned Executors of the Last Will and Testament of Arthur S. Hickok, deceased, were obligated to convey, assign and transfer all of said real property to Hickok & Reynolds, Inc., a corporation organized under the laws of the State of Ohio.

'That pursuant to said direction contained in said will and said agreements, the undersigned Executors did convey all of the interest of said Arthur S. Hickok in and to the...