In re Keel's Estate.Hanny v. Joyce

Decision Date31 July 1933
Docket NumberNo. 3769.,3769.
Citation25 P.2d 806,37 N.M. 569
PartiesIn re KEEL'S ESTATE.HANNYv.JOYCE et al.
CourtNew Mexico Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Chaves County; M. A. Otero, Jr., Judge.

In the matter of the estate of Thomas Warren Keel, deceased. Objections by Ruth Keel Joyce and others to the final account of Albert Hanny, administrator. From an adverse judgment, Jack Hanny, administrator of the estate of Albert Hanny, deceased, appeals.

Reversed and remanded, with direction.

$129.54 held adequate compensation for administrator on $2,948.21 in cash and $10,005.80 as proceeds of life policy, received by administrator. Comp.St.1929, §§ 47-205, 47-701.

Hurd & Crile, of Roswell, for appellant.

O. O. Askren, of Roswell, for appellees.

WATSON, Chief Justice.

Albert Hanny filed in probate court his final account as administrator of the estate of Thomas Warren Keel. The distributees objected to the claims made for administrator's and attorneys' fees. Over these objections the probate judge allowed an administrator's fee of $3,500, and attorneys' fees of $3,000.

The matter having been appealed to the district court, these fees were disallowed, and, having already been paid, the administrator was ordered to reimburse the estate therefor, with interest. After having appealed to this court, the administrator died, and the cause has been revived in the name of Jack Hanny, his administrator.

The learned trial judge made extensive findings. His more important conclusions were that the administration was unnecessary, improper, and detrimental, and for that reason entitled the administrator and his attorneys to no fees; and, in the alternative, that no property came into Mr. Hanny's hands as administrator except $2,948.21, cash transferred from guardianship account, and $10,005.80, the proceeds of a life insurance policy; that the administration was merely perfunctory, calling for slight skill on the part of attorneys; and that, if the administration had been necessary, $129.54 (1 per cent. of the cash and insurance) would have been adequate compensation to the administrator, and $100 adequate as attorneys' fees.

The material facts appear as follows: J. L. Keel, father of Thomas Warren Keel, died testate in January, 1929. Aside from a few specific devises and bequests to his four children individually, and a small annuity to his mother, the estate was left in undivided shares to the children, all of whom were minors. Albert Hanny, being the survivor of the two nominated in the will, qualified and acted throughout as sole executor. He was also appointed and served as guardian of the minors. As executor he took into his possession $200,000 of United States registered bonds, and approximately $185,000 in cash, notes, mortgages, and oil royalties. In lieu of statutory allowances, he elected to take as compensation 5 per cent. of the appraised value of personal property, as provided by the will. He paid himself as executor approximately $17,500, and paid his attorneys $10,000. As guardian he paid himself about $3,000 and paid his attorneys $1,500.

On August 5, 1929, but a few months following the death of the father, Thomas Warren Keel died intestate. On the petition of J. L. Keel, Jr., one of the appellees, who had in the meantime attained his majority, Mr. Hanny was appointed administrator and proceeded to inventory the estate and have it appraised.

The inventory listed a diamond ring, a bequest from the father, and an undivided one-fourth interest in each asset of the father's estate, already in his possession as executor. Each item was duly appraised, the ring at $1,000.

The administrator collected $10,005.80 upon a policy of insurance upon his decedent's life and transferred $2,948.21 from his joint guardianship account. Certain amounts of cash, proceeds of liquidation, seem also to have been transferred from his account as executor to his account as administrator. At the end, he segregated one-fourth of the $200,000 of registered bonds, transferring them from Hanny, executor, to Hanny, administrator, and thence to the three distributees.

Except for these transactions, the execution of J. L. Keel's will does act seem to have been affected by the death and administration of Thomas Warren Keel. The administrator, of course, never had manual possession of undivided quarter interests in notes, mortgages, and other personalty, a large part of which was not liquidated, but turned over in kind to the distributees. The actual distribution under both estates was simultaneous, the same beneficiaries and practically the same assets being involved in each.

In so far as the fixing of administrator's and attorneys' compensation was matter of judicial discretion, these facts we think support the decision appealed from. But appellant contends that the court erred in holding this administration unnecessary and improper; and that, the administration having been properly granted, compensation was a mere matter of mathematical calculation, it being fixed by statute, and not being within judicial discretion.

[1] We think the first position is well taken. It is true that the two estates were largely the same in their assets and with respect to the parties interested in them. Nevertheless, they were distinct entities. It is immaterial that there was but one small debt outstanding against Thomas Warren Keel, aside from the funeral expenses. There existed the legal possibility of his share of the personal property and even his real estate being subjected to the payment of debts. To his administrator and to him only could the executor legally distribute a one-fourth interest in the estate. We think the trial court to have been in error in disallowing all fees upon the theory that the administration was unnecessary and improper.

[2][3] We do not agree with the second contention. In the first place, construing 1929 Comp. St. §§ 47-701 and 47-205 together, we think that commissions on cash and proceeds of policies of insurance are within judicial discretion, subject only to the statutory maximum. We shall respect, therefore, the trial court's holding that, if administration had been proper, and considering $2,948.21 in cash and $10,005.80 as the proceeds of insurance policy to have come into the...

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5 cases
  • Gerety v. Demers
    • United States
    • New Mexico Supreme Court
    • December 13, 1978
    ...or remand the case for a new trial or other proceeding. See Ortega v. Ortega, 33 N.M. 605, 273 P.2d 925 (1928); In re Keels' Estate, 37 N.M. 569, 25 P.2d 806 (1933). The early case of State ex rel. Bujac v. District Court, 28 N.M. 28, 205 P. 716 (1922) contains an analysis of the law that i......
  • Estate of Greig, Matter of
    • United States
    • Court of Appeals of New Mexico
    • April 28, 1988
    ...estate and then a small percentage on the balance of the estate. The witness relied on a 1933 supreme court decision, In re Keel's Estate, 37 N.M. 569, 25 P.2d 806 (1933), which stands for the proposition that a trial court has no discretion in setting an administrator's fee; rather, the st......
  • Estate of Corwin, Matter of
    • United States
    • Court of Appeals of New Mexico
    • July 14, 1987
    ...seem to agree that the reduced percentages for certain liquid assets were added by the legislature in response to In re Keel's Estate, 37 N.M. 569, 25 P.2d 806 (1933). Without legislative history we cannot be certain if this is correct; however, the plain meaning of the statute makes clear ......
  • In re Winston's Will.Winston v. Fitch.
    • United States
    • New Mexico Supreme Court
    • June 30, 1936
    ...fee before claimant was discharged. Kirk v. Culley, 202 Cal. 501, 261 P. 994. We considered the statutes involved here in Re Keel's Estate, 37 N.M. 569, 25 P.(2d) 806, and the Territorial court held in Johnston v. Board of Commissioners, 12 N. M. 237, 78 P. 43, that the personal representat......
  • Request a trial to view additional results

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