Perea v. Harrison

• Citation: 41 P. 529,7 N.M. 666,1895 -NMSC- 004
• Parties: PEREA v. HARRISON et al.
• Decision Date: 24 August 1895
• Court: Supreme Court of New Mexico

41 P. 529

7 N.M. 666, 1895 -NMSC- 004

PEREA v. HARRISON et al.

Supreme Court of New Mexico

August 24, 1895

Appeal from district court, Bernalillo county; before Justice Lee.

Bill by Pedro Perea, administrator of the estate of Jose Leandro Perea, against George W. Harrison and others for the distribution of a fund held by defendant Harrison. From a decree for plaintiff, defendant Harrison appeals. Decree modified.

W. B Childers and E. A. Fiske, for appellant.

Neill B. Field, for appellee.

SMITH C.J.

This is a bill in equity filed in the district court of Bernalillo county to obtain the distribution of the estate of Jos Leandro Perea. 2d, deceased, an infant, who at the time of his death was about eight years of age. The bill was filed by Pedro Perea, as sole surviving administrator, and also as one of the heirs at law of the decedent, against George W Harrison, as an individual, and as administrator of his deceased wife, Guadalupe P. Harrison; all the other heirs at law of the decedent being also made parties defendant, and the prayer of the bill being "that a final decree may be entered for a settlement of the said estate, and the distribution thereof, and that the complainant, as surviving administrator, be decreed his reasonable expenses, including solicitors' fees, against said George W. Harrison individually and as administrator as aforesaid, in and about this suit," and for equitable relief. The facts of the case, as disclosed by the record, are that Jos Leandro Perea a wealthy citizen of Bernalillo county, died in 1883, leaving a widow and 13 children, of whom the decedent was one; that each of the said children inherited about $35,000 at the death of the elder Perea. His widow, Guadalupe Perea, was appointed guardian of the infant child, Jos Leandro, 2d, and as such received from the administrators of the father the estate of said child. Said Guadalupe Perea, widow as aforesaid, intermarried with the defendant George W Harrison, and he thereupon took entire charge of her affairs, and notified the administrators of her former husband that when they had any business to transact with her they should communicate with him, as he was the one who attended to all business. This child, Jos Leandro Perea, 2d, died on the 27th day of August, 1887, and Guadalupe Perea, the then wife of the defendant George W. Harrison, and the complainant, Pedro Perea, were appointed by the probate court of said county administrators of his estate. Mrs. Harrison insisted that, notwithstanding the death of said child, she held his estate as guardian until the final settlement of her accounts as such, and that no part of the same could be turned over to the administrators until such final settlement. The defendant George W. Harrison made for her all reports as guardian, the first report being made in the life of the child, on July 6, 1886. It consisted of three items of debit against the guardian, amounting to $18,003.09, and stated that the money was in a safe place, and "the interest well pays the expenses of said minor." No credits were claimed in this report, nor was there any charge against the guardian as to many items shown by the record then to have been in her hands. The second report of the guardian, filed on November 7, 1887, more than two months after the death of the child, was denominated by said Harrison, acting in behalf of his said wife, "A final report," and contained debit charges against the guardian amounting to $25,190.20. No credits were claimed in this report. The third report was filed on the 6th day of March, 1888, and contained debit items amounting to $26,977.44, and claimed credits amounting to $9,306.83, showing an alleged balance of $17,670.61. This last report was excepted to in the probate court, the exceptions were sustained, and the guardian appealed from the judgment to the district court, but did not perfect her appeal until after the filing of this bill of complaint. This record is silent as to the result of that appeal; but the bill alleges that it was taken at the March, 1888, term of the probate court, and remained probate court, and remained imperfected at the time of the filing of this suit, on the 3d day of April, 1890. Mrs. Harrison died on the 20th day of October, 1889, and her husband was appointed her administrator on January 6, 1890. Between the time of her death and his qualification as her administrator, the defendant George W. Harrison on December 17, 1889, wrote a letter to N. C. Collier, Esq., one of the attorneys for complainant, in which he said: "My Dear Sir: In answer to yours of the 16th my wife never had possession of any of the effects of the estate of Jos L. Perea, 2d, as administratrix, but as the guardian; and, by Pedro Perea's action, the matter of the settlement of the guardianship is in the district court, and Pedro Perea will have to wait a good while before he gets possession of any of said estate, and will probably learn who he is fooling with before he gets through with me." When this bill of complaint was filed the defendant Harrison demurred to the same, assigning 10 grounds of demurrer, only one of which it is necessary to notice: "Because the said complainant, as the coadministrator of defendant's intestate, seeks by said bill to administer the estate of Jos L. Perea, 2d, alone, and to the exclusion of defendant, who is entitled to participate in such administration as the administrator of the complainant's coadministrator." This demurrer being overruled, he answered the bill, in double capacity of an individual and as administrator, by a joint and several answer, in which it was insisted that no assets of the estate of Jos L. Perea, 2d, ever came into the hands of Mrs. Harrison as administratrix,--that she held the same as guardian up to the time of her death,--but alleged that he and the defendant Grover William Harrison, a minor child of himself and his deceased wife, have succeeded to all the interest and rights of said Guadalupe Perea in and to the assets of said estate, and that for said reason the complainant is not entitled to a decree for anything upon said accounting, but defendant alleges that "he is ready and willing to pay any sum for which he or the estate of Guadalupe Perea de Harrison may be found liable on said accounting." The answer also alleged that the complainant was one of the administrators of Jos L. Perea the elder,...