In re Estate.

• Decision Date: 26 February 1934
• Docket Number: No. 3845.,3845.
• Citation: 38 N.M. 347,33 P.2d 369
• Parties: In re McMILLAN'S ESTATE.
• Court: New Mexico Supreme Court

38 N.M. 347

33 P.2d 369

In re McMILLAN'S ESTATE.

No. 3845.

Supreme Court of New Mexico.

Feb. 26, 1934.Rehearing Denied June 21, 1934.

Appeal from District Court, Grant County; Kiker, Judge.

Final accounting of W. D. Murray, as administrator with the will annexed of the estate of George F. McMillan, deceased. From an order settling final account, Dora M. Murray appeals.

Reversed, and remanded with directions.

Burden is on trustee to show that disbursement for which credit is claimed was proper.

Edward C. Wade, Jr., of El Paso, Tex., for appellant.

Raymond R. Ryan, of Albuquerque, for appellee.

HUDSPETH, Justice.

The issues in this cause were made up by objections of appellant to the amended final report of W. D. Murray, administrator with the will annexed of the estate of George F. McMillan, deceased. The will was proved in the probate court of Grant county, and later the matter was removed, under the provisions of chapter 40, Laws 1919 (1929 Comp. St. § 34-422), to the district court of that county, where the final accounting was had.

George F. McMillan died testate October 10, 1925, seized of an undivided one-third interest in the San Jose mine situate near Central, Grant county. This interest in the mine was appraised in the probate court at $5,000, but before the final hearing in the district court its value had increased to $50,000. The personal property of the testator exceeded his debts by $221.71. After making specific legacies aggregating $2,005, he gave the residue of his estate, in equal shares, to W. D. Murray and James T. Murray, who were the owners of the other two-thirds of the San Jose mine. They also owned and operated a large mercantile establishment at Central, N. M., under the firm name of Murray Brothers. On December 24, 1926, James T. Murray died. Appellant Dora M. Murray is his widow and sole heir. She is also administratrix of her late husband's estate.

On October 31, 1925, W. D. Murray was appointed special administrator of the estate of George F. McMillan, deceased, by the probate court of Grant county, and on July 10, 1926, the account and report of said special administrator was approved and the special administrator and his bondsmen were discharged. The report showed that the special administrator was the sole operator of the San Jose mine, and that he had on hand as the profits of such operations the sum of $11,229.79. The estate's one-third of this sum was more than enough to pay all debts and legacies. On the day of the discharge of the special administrator, W. D. Murray qualified as administrator with the will annexed, and on August 8, 1927, as such administrator with the will annexed, he filed what he designated as the final report, showing that he had continued to operate said San Jose mine up to July 31, 1927. The report states: “He reports that since the 5th day of October, 1925, he, in association with James T. Murray, now deceased, worked and operated said San Jose Mine up to the death of said James T. Murray.”

[1][2][3][4] At the date of the death of James T. Murray, the proceeds of the operations of the mine amounted to about $20,000. On September 10, 1927, the administrator filed a supplemental report, in which he stated that his former reports, including the final report, contained misstatements of fact as to the ownership of the mine; that Dora Murray's interest therein was an undivided one-fourth instead of an undivided one-half as formerly reported. Paragraph 3 of said supplemental report reads as follows: “That the error in the said final report in stating the interest held by the various owners in the said San Jose Lode and the distribution of the moneys received from the ore shipments, was occasioned by a misapprehension of the administrator herein as to the interest which he personally owned in said mining claim, and that the true statement of his interest therein and the division of the returns from the ore shipments were ascertained by him from an abstract of title to the said San Jose Lode which he had recently obtained.”

Dora Murray, the appellant, thereafter filed a petition in the matter of the estate of George F. McMillan, deceased, praying that the hearing on the final report of the administrator be postponed until a suit numbered 6943 could be heard, which petition contained the following: “That on July 25, 1928 petitioner as plaintiff instituted suit in the above entitled court against the said W. D. Murray individually and as administrator of the last will and testament of George F. McMillan, deceased, and against other defendants, wherein she alleged that she is entitled to an undivided one-half interest in and to said mine, which said suit was placed upon the docket of said court under file No. 6943, and is now pending. That a copy of plaintiff's complaint is hereto attached marked Exhibit ‘A’ and made a part hereof. That your petitioner is advised and believes that said report should not be acted upon and the property and moneys in the possession of said administrator disposed of until final disposition can be made of the issues raised in said cause No. 6943.”

Judge Hatch made findings of fact and rendered a decree in suit No. 6943 July 3, 1929. The court found that after the death of George F. McMillan the San Jose mine was an asset of the commercial partnership of Murray Brothers, and that the said mine was operated by said partnership up to the date of the death of James T. Murray. Thereafter the appellee filed the amended final report in the cause before us. When, at the hearing upon appellant Dora Murray's objections to its approval, the final decree and findings made by Judge Hatch in cause No. 6943 were tendered in evidence, they were admitted over the following objections of appellee: “We admit the authenticity of the record as authentic documents. We have no objection on that score but we object to the introduction of the testimony on the ground it is incompetent, irrelevant and immaterial. That all proceedings prior to the final decree are merged in the final decree, and only the final decree is important, and further that the final decree is not relevant or material in as much as all records in the probate court show reports and accounting on quantum of interest in consonance with the final decree, and that this amended final report seeks to account on the basis of and in consonance with the final decree, namely, an interest of one-half in W. D. Murray and one-half in J. T. Murray, the tendered instruments are in support of the admitted facts and this only tends to encumber the record.”

Appellant maintains that the trial court erred in refusing to be bound by the finding of fact made by the court in cause No. 6943- which she maintains was litigation between the parties hereto incident to the settlement of this matter-to the effect that the commercial partnership of Murray Brothers operated the San Jose mine up to the date of the death of James T. Murray. The rule is clearly stated in Myers v. International Trust Co., 263 U. S. 64, 44 S. Ct. 86, 87, 68 L. Ed. 165, where Mr. Chief Justice Taft quoted Mr. Justice Field in Cromwell v. Sac County, 94 U. S. 351, 24 L. Ed. 195, as follows:

“‘In considering the operation of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. ***

“‘But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.”’

Appellee insists that the certificate of the findings of fact and decree in cause No. 6943 were improperly admitted; that the judgment roll is not before the court, and without the judgment roll it cannot be said as a matter of law that the court erred in refusing to be bound by the facts found in that suit; that the court must start with the pleadings to determine the issues actually tried and decided. Oklahoma v. Texas, 256 U. S. 70, 41 S. Ct. 420, 65 L. Ed. 831, at page 835; Pasquinelli v. Southern Macaroni Mfg. Co., 272 Pa. 468, 480, 116 A. 372; Bullitt's Estate, 308 Pa. 413, 162 A. 288; People v. Public Service Comm., 255 N. Y. 232, 174 N. E. 637; Raney v. Home Ins. Co., 213 Mo. App. 1, 246 S. W. 57; Pile v. Pile, 134 Tenn. 370, 183 S. W. 1004; Brown v. Wellington Mines Co., 24 Colo. App. 256, 133 P. 427; 15 R. C. L. 981.

The exact question has not been decided in this jurisdiction. In Costilla Estates Dev. Co. v. Mascarenas, 33 N. M. 356, 267 P. 74, we held (Syl.): “Stipulation, referred to in decree relied on as res adjudicata, is not essential part of judgment roll, at least where decree is complete in itself and requires no explanation.”

The findings in cause No. 6943 followed generally the allegations of the complaint. It appears on the face of the findings and...