In re Sheley's Estate.Sheley v. Shafer.

• Citation: 298 P. 942,35 N.M. 358
• Decision Date: 30 March 1931
• Docket Number: No. 3502.,3502.
• Parties: In re SHELEY'S ESTATE.SHELEYv.SHAFER.
• Court: New Mexico Supreme Court

35 N.M. 358

298 P. 942

In re SHELEY'S ESTATE.SHELEY

v.SHAFER.

No. 3502.

Supreme Court of New Mexico.

March 30, 1931.

Syllabus by the Court.

Administrator, when distributing estate, may retain sufficient of share of money going to heir to pay debt owing estate.

An administrator is entitled to retain sufficient of the share of an heir in money derived from decedent's estate to pay a debt which the heir owes to the estate.

Fact that claim of estate against heir is barred by limitation would not preclude administrator from retaining distributive share until debt due estate was paid; statute of limitation after expiration of statutory period bars remedy but not debt itself.

That a claim against an heir is barred by the statute of limitation should not prevent the application of the doctrine of retainer enabling the administrator to withhold the distributive share of such heir in his hands until the debt is paid; such statute barring the right of action, and not the debt itself.

Heir's petition filed less than six months after appointment of administrator, praying administrator be instructed to collect debt from heir, and debtor's answer denying indebtedness, held insufficient to confer jurisdiction on probate court to judicially determine indebtedness; order of probate court directing administrator to collect larger sum than distributive share of heir in personal property of estate was directory only (Comp. St. 1929, §§ 34-412, 47-305).

Petition of heir, filed less than six months after appointment of administrator, praying that administrator be instructed to collect from another heir debts alleged to be due the estate, and answer of debtor heir thereto denying indebtedness, held not sufficient to confer jurisdiction on probate court to judicially determine indebtedness of heir to the estate, and that order of probate court directing the administrator to collect a larger sum than distributive share of the heir in personal property of estate was directory only.

Jurisdiction of district court in probate proceeding removed from probate court is not limited to jurisdiction of probate court (Comp. St. 1929, § 34-422).

The jurisdiction of the district court in a probate proceeding removed under provisions of chapter 40, Laws 1919, section 34-422, 1929 Comp., is not limited to the jurisdiction of the probate court.

Party to proceeding in probate court and appealed to district court or removed thereto under statute is not entitled to jury trial as matter of right (Comp. St. 1929, §§ 34-422, 47-506; Const. art. 2, § 12).

No party to a proceeding brought in the probate court and appealed to the district court, or removed under chapter 40, L. 1919, is entitled to a jury trial as a matter of right.

Compromise settlement of claim of estate against heir between foreign administrator and heir after latter had notice that probate court of decedent's residence had instructed local administrator to collect debt held not binding in local court.

A compromise settlement of claim of an estate against an heir with an administrator appointed in another state at the instance of such debtor heir after said heir had notice that probate court of this state, the place of residence of decedent at time of death, had instructed administrator to collect same, is of no binding effect as against the administrator of the same intestate in this state, nor can it be pleaded as defense to such claim.

Appeal from District Court, Curry County; Hatch, Judge.

In the matter of the estate of Alonzo Sheley, deceased. From a decree of distribution by the district court after case was removed from the probate court, M. M. Sheley appeals, opposed by Belle Shafer.

Decree reversed, and causes remanded, with directions.

Statute of limitations does not affect the right or extinguish debt nor raise presumption of payment, but only bars remedy.

Walter W. Mayes, of Clovis, for appellant.

Rowells & Havener, of Clovis, for appellee.

HUDSPETH, J.

Appellant and appellee are brother and sister and the only heirs of Alonzo Sheley, who died intestate on the 19th day of December, 1922, a resident of Curry county, N. M. Decedent left an estate in Curry county, N. M., consisting of real and personal property.

Less than six months after the appointment of the administrator, Belle Shafer, the appellee, filed in the probate court of Curry county, where the administration of the estate of Alonzo Sheley was pending, a petition alleging that appellant, a resident of the state of Iowa, was indebted to the estate of decedent on “one note in the principal sum of $1,500.00 profits on real estate deals $2,425.00.”

The appellant was ordered to show cause why the administrator “should not be ordered to collect the amount against the said M. M. Sheley, as prayed for in the petition.” Appellant answered and denied that he was indebted to the estate, alleged the payment of the $1,500, note, and also pleaded the statute of limitation to the note, and, further answering the petition, said:

“That he admits that the estate of the said Alonzo Sheley, deceased, owns an interest in a certain note for $12,765.00, and the real estate mortgage securing the same covering certain real estate in the State of Iowa to the extent of $2425.00 being an undivided 19/100 interest therein but that said mortgage is a second mortgage on said real estate and is subject to a prior mortgage for $10,000.00, and that the said mortgage has little or no value at this time. ***

“The undersigned respondent hereby brings and tenders into court the said undivided 19/100 interest of the estate in the said note and mortgage and submits the same to the jurisdiction of this court.”

The probate court, on the 8th of December, 1923, made an order, of which the following is a part: “It is therefore ordered by the court that the administrator in this cause do collect for the benefit of the above estate of M. M. Sheley as follows: the said note in the principal sum of $1500.00, and also the sum of $1775.00 for the investment of one-half of the Moore land in the Iowa land, making a total collection of $3255.00, which the said administrator is hereby ordered to collect from the said M. M. Sheley as aforesaid, and the said M. M. Sheley is hereby ordered to pay into the hands of the administrator of said estate the said sum of $3255.00, and the said administrator, who is R. N. Downie, is further ordered to collect said sum out of any funds that may be in his hands as such administrator and that may belong to the said M. M. Sheley, and the said administrator, R. N. Downie, is further ordered to take any legal steps to bring suit or to defend suit or to do whatever may be necessary to make said collection and his costs in the premises are hereby allowed.”

On the 5th of December, 1927, appellant filed a petition for removal of the administration to the district court of Curry county under the provisions of chapter 40, Laws of 1919, section 34-422 of the 1929 Compilation, and said administration was removed to the district court.

On the 27th day of January, 1928, C. F. Doughton, the administrator, filed his final account and report in the district court, showing cash received from former administrator, $2,102.79, and cash received from sale of property, $2,757.57, and alleged that the administration was in condition to be closed, and that he believed the appellant and appellee were the only heirs at law of decedent.

To this report the appellee filed exceptions on the ground that the administrator had not deducted from the share of the appellant the sum which the administrator was ordered to collect from appellant by the probate court on the 8th of December, 1923. To this the appellant filed an answer to which he attached copies of said order of the probate court and the petition of appellee on which it was made. He alleged that the order was directory merely and not an adjudication of the indebtedness of appellant to decedent's estate, that it was beyond the power of the probate court to adjudicate the question of said indebtedness; alleged payment of the $1,500 note; demanded a trial by jury thereon; and alleged that the other claim was based upon partnership transactions between appellant and decedent; and demanded that the questions of the existence of the partnership and whether or not an accounting of the partnership transactions should be ordered be submitted to a court of equity.

The appellant further answered that letters of administration were granted on the estate of decedent by the district court of Powesheik county, state of Iowa, sitting in probate on the 26th day of February, 1924, that appellant had acquired the interest of the estate in the note and mortgage on the Iowa land at a public sale for the sum of $60, and that he compromised the claim on the $1,500 note made by appellant in favor of decedent for $10, all with the approval of the Iowa court, and that, by reason of such judgment and proceedings in the Iowa court, the appellee was barred and estopped from claiming or asserting any claim against appellant by reason of the debts claimed to be due the estate of decedent. An exemplified copy of the judgment roll of the Iowa court was attached and made a part of the answer, by which it appears that the administrator was appointed by the Iowa court on the petition of appellant.

By trial amendment the appellant alleged that $2,757.57 in the hands of the administrator was the proceeds of the sale of real estate of which the decedent died seized situated in Curry county, N. M., which sale was had in a partition proceeding in the district court of Curry county, and claimed that one&BFhalf thereof was his individual property and exempt from any order or judgment of retainer. It appears that the proceeds of the real estate was turned over to the administrator by agreement of the appellant and appellee.

On motion the court struck the part of the answer referring to the Iowa court proceedings, and...