Merrick v. Deering

• Decision Date: 02 May 1925
• Docket Number: No. 2925.,2925.
• Parties: MERRICKv.DEERING et al.
• Court: New Mexico Supreme Court

30 N.M. 431

236 P. 735

MERRICK

v.DEERING et al.

No. 2925.

Supreme Court of New Mexico.

May 2, 1925.

Syllabus by the Court.

Under section 4197, Code of 1915, it is the duty of the court, in cases tried without a jury, upon request, to make such specific findings of ultimate facts as will enable the appellate court, in reviewing such findings and the conclusions, to traverse the same ground as the trial court.

Under section 4197, Code of 1915, it is error to refuse findings as to ultimate facts essential to the conclusion.

Under section 4197, Code of 1915, the refusal to make findings as to ability, standing, skill and experience of attorneys entitled to the allowance of fees, and as to the time and labor expended, is erroneous.

Judgment erroneous for refusal to make findings, as required by section 4197, Code of 1915, reviewed upon the whole record, a remand for findings being impracticable, because the trial judge is no longer in office.

Evidence examined and attorneys' fees allowed.

Appeal from District Court, Colfax County; Leib, Judge.

Suit by George P. Merrick, executor of William H. Bartlett, deceased, against Mary Wentworth Deering and others. From the supplemental decree making allowances to C. J. Roberts and others, as attorneys, the attorneys appeal. Remanded, with directions.

Under Section 4197, Code of 1915, it is error to refuse to make findings as to ability, standing, skill and experience of attorneys entitled to the allowance of fees, and as to the time and labor expended.

F. C. Wilson and J. O. Seth, both of Santa Fé, for appellants.

George H. Gould, of Santa Barbara, Cal., Pitkin & Moore, of Denver, Colo., E. R. Wright, of Santa Fé, and Crampton & Darden, of Raton, for appellees.

WATSON, J.

In a suit by George P. Merrick, executor, for a construction of the last will and testament of William H. Bartlett, deceased, the court, by supplemental decree, made certain allowances to C. J. Roberts, as attorney for interested parties and as guardian ad litem, and to C. J. Roberts and M. F. Prosser, as attorneys, from which the said attorneys appeal.

William H. Bartlett died testate, December 10, 1918. His will was filed for probate December 26, 1918, on which day George P. Merrick, the executor named in the will, was appointed and qualified as special administrator. On March 3, 1919, the will was admitted to probate in Colfax county, and said Merrick was appointed and qualified as executor and gave bond in the sum of $3,000,000. The estate consisted of real property in New Mexico, California, and Illinois, and a large amount of personal property consisting principally of stocks and bonds.

By the second paragraph of the will, the testator created a $1,000,000 trust with George P. Merrick, said executor, Frank S. Cowgill, and Jesse H. Ridge, as trustees. Two granddaughters, Mary Wentworth Bartlett and Virginia Bartlett, minors, and daughters of William H. Bartlett, Jr., son of the testator, were each to receive, annually, from the income of said trust the sum of $2,500, and the balance of such income was to be paid to Norman W. Bartlett and William H. Bartlett, Jr., sons of the testator, so long as they should live. On the death of either of said sons, the share of such income theretofore paid to such deceased son was to be paid to his issue or, failing issue, to his legal heirs for 20 years, when such issue or heirs were to receive that part of the corpus of the trust from which such income had been derived.

By the third paragraph of the will, a trust of $250,000 was created, with the same trustees, for the purpose of providing annuities of $1,500 each to Mary Wentworth Deering, testator's daughter, and Sarah M. Stevens, Helen Bartlett, and Noel S. Munn, and $600 to Annie H. Brown. There were cash legacies of $27,000. The Vermejo ranch in Colfax county, N. M., with all personal property thereon, and all of the capital stock of the Adams Cattle Company was given to testator's son, Norman W. Bartlett. All of the residue of the testator's property was to go, one-third to said Norman W. Bartlett and two-thirds to said William H. Bartlett, Jr., sons of the testator.

Norman W. Bartlett died testate September 5, 1919, leaving all of his property to his brother, William H. Bartlett, Jr. William H. Bartlett, Jr., died testate January 15, 1920, leaving all of his property to his widow, Virginia M. Bartlett. Said George P. Merrick was executor of each of these wills. Upon the death of Norman W. Bartlett, his interest in the $1,000,000 trust passed, under the terms of the will, one-half to Mary Wentworth Deering, sister, and one-half to William H. Bartlett, Jr., brother. Upon the death of the latter, his interest in the trust passed to Virginia Bartlett and Mary Wentworth Bartlett, the said minors.

On December 10, 1921, the executor filed his complaint in the district court of Colfax county alleging that by reason of the large necessary expenditures by the executor, including $225,000 of federal inheritance tax, and $325,000 paid to Mary Wentworth Deering in settlement of a contest of the will instituted by her, and by reason of the unproductive character and depreciation in value of many of the properties, and of general business conditions, the executor was not able fully to satisfy the specific devises and legacies of the will and to set up the said trusts, wherefore it became necessary to have judicial construction of the will as to whether such trusts should have priority. It was further alleged that the executor had advanced large sums of money to Norman W. Bartlett and William H. Bartlett, Jr., during their lives, and to Virginia M. Bartlett for the support of herself and said minor children, with all of whom said executor had indemnity agreements, and that certain real estate in California of the value of about $100,000, not specifically devised, and originally believed to form a part of the residue of said estate, had been, by decree of the probate court in California, treated as a part thereof, and that the title thereto had passed by succession to said Virginia M. Bartlett. It was further alleged that said executor had made demand upon said Virginia M. Bartlett that she restore to the executor so much of said sums so advanced and of such property as would enable said executor to set up the said trusts, and that said Virginia M. Bartlett had refused to do so.

The executor prayed for a construction of the will, as to the priority of the trusts to the specific devises and bequests, for direction as to whether he was entitled to use and should take any portion of the proceeds of the sale of the Vermejo ranch and the corporate stock of the Adams Cattle Company; that the court adjudicate as to his right of reimbursement for the advances made, as to the duty of said Virginia M. Bartlett to make restitution of, or of the value of, said New Mexico and California real estate; and that the ownership of said New Mexico property be determined and the title quieted because of the fact that said New Mexico property was acquired by Norman W. Bartlett subsequent to the making of his will and by William H. Bartlett, Jr., subsequent to the making of his will, and because of the uncertainty as to whether after-acquired real estate passes by will under the laws of New Mexico. Virginia M. Bartlett, Mary Wentworth Deering, the said minors, the Pacific Southwest Trust & Savings Bank of Los Angeles, as guardian of the estates of said minors, Sarah M. Stevens, Helen Bartlett, Noel S. Munn, and other interested parties were named as defendants.

Virginia M. Bartlett filed an answer denying that the two minors had any interest in the real estate in New Mexico; denying that she should be required to account to the executor for the amount advanced in settling the will contest; denying that the California real estate should be subjected to the establishment of the trusts; and claiming that all advancements made to her inured to the benefit of the minors, her children, and should be apportioned. She asked that the plaintiff be required to file inventory and report as special administrator, and also as executor, and for other relief.

The two minors, by their California corporate guardian, and by appellant Roberts as attorney, filed answer claiming that the executor should be charged with moneys advanced to Norman W. Bartlett, William H. Bartlett, Jr., and Virginia M. Bartlett, and moneys expended in settlement of the will contest and otherwise; claiming that the appellants should be required to file inventories and accounts, and to make report of his acts and doings as executor; claiming that the moneys paid to Norman W. Bartlett, to William H. Bartlett, Jr., and to Virginia M. Bartlett, and for the settlement of the will contest, should be charged as a lien against the real estate in Colfax county and against the interest of Virginia M. Bartlett in the estate; and that the trusts take precedence over all other provisions of the will. This answer also set up that the minors were each the owner of an undivided three-eighths interest in the Vermejo ranch in Colfax county.

On the same day, Sarah M. Stevens, by appellant Roberts, her attorney, filed her answer setting up substantially the same matters as were alleged in the answer of the minors, excepting the allegations relative to the minors' interests in the Vermejo ranch. On the same day, and by the same attorney, Helen Bartlett and Noel S. Munn filed answers adopting the allegations of the answer of Sarah M. Stevens.

April 5, 1922, the court appointed appellant Roberts as guardian ad litem for the two minors, and on that day he filed an answer adopting the allegations of the answer theretofore filed by the California guardian.

May 17, 1922, the trustees, by their attorney, filed an answer neither admitting nor denying the allegations of the complaint but demanding strict proof thereof, and asking the court to protect, safeguard, and defend the rights...