In re Estate.

• Decision Date: 10 November 1936
• Docket Number: No. 4115.,4115.
• Citation: 40 N.M. 423,60 P.2d 945
• Parties: In re FIELD'S ESTATE.
• Court: New Mexico Supreme Court

40 N.M. 423

60 P.2d 945

In re FIELD'S ESTATE.

No. 4115.

Supreme Court of New Mexico.

Nov. 10, 1936.

Appeal from District Court, Bernalillo County; Joseph L. Dailey, Judge.

Proceedings in the matter of the estate of Neill B. Field, deceased, wherein Emilia M. Perea filed a claim, and wherein the First National Bank of Albuquerque and others filed a petition to modify the order allowing the claim. From a judgment reclassifying such claim as a third class claim, claimant appeals.

Reversed and remanded, with instructions.

That findings incorporated in judgment do not support it does not render judgment void, but merely erroneous and subject to correction by motion timely made or on appeal.

W. A. Keleher and T. E. Jones, both of Albuquerque, for appellant.

Hugh B. Woodward, Henry G. Coors, and Mechem & Hannett, all of Albuquerque, for appellee.Wilson & Watson, of Santa Fé, amici curiæ

PER CURIAM.

Upon consideration of the appellee's second motion for rehearing, we have concluded to withdraw the original opinion and substitute the following:

BRICE, Justice.

The appellant, Emilia M. Perea, filed a claim against the executors of the estate of Neill B. Field, deceased, which was allowed by the probate court of Bernalillo county as “a preferred claim” by an order duly entered. A petition was filed to “re-classify” such claim, to which a demurrer was directed. The demurrer was overruled and claimant stood thereon. From a judgment reclassifying such claim as of the third class, this appeal was prosecuted.

The facts are substantially as follows: On the 17th day of December, 1932, the will of Neill B. Field was admitted to probate in the probate court of Bernalillo county, N.M.; thereafter on the 21st day of March, 1933, Emilia M. Perea filed a claim with the executrix of said estate, which the latter approved, the substance of which was as follows:

“That prior to the death of said Neill B. Field, this claimant deposited with him various sums of money from time to time, there being a balance due her as of October 31, 1932, in the sum of $7,172.17.

“That the ownership of said money was not in the intestate at the time of his demise but was held by him for the beneficial interest of this claimant under an understanding and verbal agreement whereby from time to time said Neill B. Field paid over to this claimant such sums as she required for her living expenses. That under the laws of the State of New Mexico this claimant is entitled to preference and her claim should be allowed as a preferred claim against the said estate and the executrix under the last will and testament of said decedent.”

Thereafter the following order was entered in said cause:

“This cause coming on before the court, this time on the claim of Emilia M. Perea, claimant, in the sum of $7,172.17, and the claimant asserting a preference, and it appearing from the testimony of the claimant that she has had established a trust fund with the said Neill B. Field in his life-time, the balance due as of October 31, 1932, being $7,172.17, and the actual title and ownership of said money not being in the intestate at the time of his death but the same having been held by him for the beneficial interest of the said Emilia M. Perea within the meaning of Section 47-307 of the 1929 Codification, and it appearing to the court that said claimant is entitled to preference as provided under the provisions of Section 47-511 of the 1929 Codification, that is to be paid first after the payment of the charges of the last illness and funeral of the deceased, and the court being otherwise fully advised in the premises, it is hereby

“Ordered, adjudged and decreed: that the claim of Emilia M. Perea, having been approved by Barbara J. Dietz, executrix under the last will and testament of Neill B. Field, deceased, the same is hereby approved by the court; and that said claim being a trust fund claim, the same is hereby declared to be entitled to preference under the laws of the State of New Mexico and shall be paid before taxes or other debts or legacies.

“Done in open court this 1st day of May, 1933.

“[Signed] D.A. MacPherson, Jr.

“Probate Judge.”

Thereafter the cause was removed to the district court under section 34-422, Comp. St.Ann.1929.

On the 21st day of December, 1934, the First National Bank of Albuquerque and others who were creditors of the estate of Neill B. Field filed a petition to “modify order allowing claim of Emilia M. Perea,” upon the following grounds: “That it appears from the sworn claim of the claimant and from the order allowing said claim that the claim is not a preferred one, and that the court was without jurisdiction to allow the same as a preferred claim, and that the said order approving and allowing the same is wholly null and void.”

The prayer was that the claim be classed as a general claim against the estate of Neill B. Field. A demurrer to this petition upon the following grounds was filed on January 14, 1935:

“2. That said petition shows on its face that said claim is properly a trust fund claim and entitled to preference according to law.

“3. That the claim of Emilia M. Perea was allowed as a preferred claim by the Probate Court of Bernalillo County, New Mexico, by its order duly entered on May 1, 1933, and said order has never been appealed from or reversed or modified in any way and by virtue thereof said order has become a final judgment on said claim and not subject to attack by the petition of said creditors.

“4. That creditors have no standing in this court in this cause to question previous allowance of claims herein.

“5. That the order allowing the claim of Emilia M. Perea by the Probate Court of Bernalillo County, New Mexico, is not subject to collateral attack.”

On February 14, 1935, the demurrer was overruled by the court and the appellant stood on her demurrer, and thereupon judgment was entered in effect that said claim be “reduced from a preferred claim to a common and general claim against said estate and to be paid in due course of administration along with the other debts against said estate.”

From this judgment this appeal was taken.

[1] The case in the district court is based upon the sole charge that the judgment assailed is void for want of jurisdiction to enter it; and this is the only question we can consider here. Thomas v. Johns, 35 N.M. 240, 294 P. 327.

[2] There are three jurisdictional essentials necessary to the validity of every judgment, to wit, jurisdiction of parties, jurisdiction of the subject matter, and power or authority to decide the particular matters presented, Protest of Gulf Pipe Line Company, 168 Okl. 136, 32 P.(2d) 42; Windsor v. McVeigh, 93 U.S. 274, 23 L. Ed. 914, and the lack of either is fatal to the judgment, Reynolds et al. v. Stockton, 140 U.S. 254, 11 S.Ct. 773, 35 L.Ed. 464.

[3] It is conceded that the probate court had jurisdiction of the persons and of the general subject of allowing claims against estates, but it is denied that it had jurisdiction over the subject matter of this proceeding, to wit, the classification of claims. If this is true, then the judgment was void and subject to direct or collateral attack. Conlin et al. v. Blanchard, 219 Cal. 632, 28 P.(2d) 12.

Section 47-504, Comp.St.1929, is as follows: “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 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.”

This contemplates a hearing and a determination of the claim and the entry of a judgment approving or disapproving it. By “determine” is meant the determination of any question the law requires to be decided in connection with the claim.

Sections 47-509, 47-510, 47-511, Comp. St.1929, are as follows:

“47-509. At the first term of the court after filing of the first semi-annual account and each semi-annual account thereafter, the court shall ascertain and determine if the estate be sufficient to satisfy the claims presented and allowed, within the first six months or any succeeding period of six months thereafter, after the date of the notice of his appointment, after paying charges of the last sickness, funeral charges and expenses of administration; and if so, it shall so order and direct; but if the estate be insufficient for that purpose, it shall ascertain what percentum of such claims it is sufficient to satisfy and order and direct accordingly.”

“47-510. As soon as the executors are possessed of sufficient means over and above the expenses of administration, they shall pay off the charges of the last sickness and funeral of the deceased, and they shall next pay any allowance which may be made by the court as provided by law for the maintenance of the widow and children.”

“47-511. Other demands against the estate shall be payable in the following order:

“First. Claims entitled to preference by express provision of law of the United States or of this state.

“Second. Taxes.

“Third. All other debts.

“Fourth. Legacies.”

Some one must perform the judicial function of classifying claims. Appellees' views are expressed in their brief as follows:

“*** We are sure that our statute does not expressly confer such a power and that the power to hear and determine claims does not give the probate court jurisdiction to fix priorities, especially in view of the fact that our statute fixing priorities is a self-executing statute.

“There is no necessity under our statute for the entry of an order fixing preferences or priorities unless, as in this case, it is done to violate the terms of the statute or to authorize an executor to do something it is to be presumed he would not do. If the court had merely heard and determined the claim, and as a...