Tarlton's Estate, In re
| Decision Date | 11 August 1972 |
| Docket Number | No. 9386,9386 |
| Citation | 84 N.M. 95,1972 NMSC 60,500 P.2d 180 |
| Parties | In the Matter of the ESTATE of Thelma W. TARLTON, Deceased. Dominica RUSH, Objectant-Appellant, v. Inez STRICKLAND, Administratrix-Appellee. |
| Court | New Mexico Supreme Court |
This is an appeal from probate proceedings in Sierra County. Appellant, claiming to be a creditor of decedent's estate, unsuccessfully objected in probate court to the final report of the administratrix with will annexed (appellee) and unsuccessfully moved the probate court to transfer the proceedings to district court. Appellant then appealed to the district court and there attempted to vacate the order appointing appellee as administratrix with will annexed. The district court dismissed the appeal. We affirm.
Appellant is the owner and landlord of certain property ('the property') which had been leased to the decedent and upon which decedent had operated a bar prior to her death in April of 1969. The lease, which was originally entered into between the decedent and a third party in s968, provided for a tenancy of three years, with the rental sum of $6,480.00 to be paid in monthly installments of $180.00 each, beginning in March of 1968. In September of 1968 it was amended so as to extend until March of 1973.
After decedent's death, appellee, in her capacity as administratrix, took possession of the property until the probate court approved a sale of both the business and its liquor license on October 11, 1969. Appellant never objected to the sale. Appellee paid the rent for the period of her occupancy.
Appellant claims the lease survived the decedent, that it passed to the appellee as personalty and that the appellee is indebted to her for the rent which has accrued since appellee made the last payment. Appellant did not advance this claim by filing it in the manner prescribed by statute (§ 31--8--1 to 14, N.M.S.A., 1953). Instead, she advanced it by objecting to the final report filed by the appellee, demanding that the appellee be directed to pay that rent which accrued and which was due in the future. Appellant filed these objections before the estate was closed but after the six month limitation for filing claims had expired. See § 31--8--3, N.M.S.A., 1953. (Earlier, appellant properly filed--but later withdrew--a timely claim for utility charges allegedly due on the property.) At the same time appellant made these objections she also filed a motion to transfer the proceedings from probate court to district court pursuant to § 16--4--12, N.M.S.A., 1953.
The probate court subsequently found both the objections and the motion to be without merit, entered a final decree and discharged the appellee. Appellant then appealed to the district court pursuant to § 16--4--18, N.M.S.A., 1953, where she moved to vacate the order appointing appellee as administratrix with will annexed on the grounds that appellee, an out-of-state resident, had failed to file a consent to suit form with the Secretary of State as required by § 31--1--6(B), N.M.S.A., 1953 (Pocket Supp. 1971). On the same basis she also requested that appellee's actions be 'voided.' The district court granted appellee's motion to dismiss the appeal.
We shall first deal with appellant's claim for rent under the lease. Critical here is the manner in which appellant asserted the claim: by objecting to the final report after the nonclaim statute had expired. Section 31--8--3, supra. If the manner of making this claim was correct, then the district court erred in dismissing the appeal. If it was not correct, however, and was barred by the nonclaim statute, then appellant has no cause to complain.
Sections 31--8--1 to 14, supra, provide for the manner in which claims are to be filed against the estate. Section 31--8--13, supra, provides for the order of payment of 'debts not due' and 'contingent claims.' We wee no reason why the rent in this transaction is not a 'claim' as contemplated by these statutes generally and a 'debt not due' as specifically contemplated by § 31--8--13, supra. Generally, a claim for unpaid rent is barred by a nonclaim statute if not timely filed. 31 Am.Jur.2d Executors and Administrators § 277. See also Annot., 22 A.L.R.3d 814, 815--18. In this respect it is similar to a claim for payments on an installment note coming due after decedent's death. Consequently, failure to file the claim resulted in its being barred. Such a claim for installments of rent is not unlike stipulated child support payments, which were held to be a proper subject of a claim under § 31--8--13, supra, in Hill v. Matthews, 76 N.M. 474, 416 P.2d 144 (1966). Appellant, therefore, had no standing to appeal to the district court since an appeal can only be taken by a 'person aggrieved' by the probate court's decision. Section 16--4--18, supra. Appellant in no way fits into this category. See Ruidoso State Bank v. Brumlow, 81 N.M. 379, 467 P.2d 395 (1970).
Appellant, however, advances three reasons why this 'claim' was not barred by the nonclaim statute. Her first contention is that appellee's actions in taking possession of the property and paying the rent for six months following decedent's death somehow created a liability independent of that of the decedent; that this liability became 'acquired and affirmed' by the appellee and that a claim was not required to be filed against the estate. As authority for this position, appellant relies upon Tierney v. Shakespeare, 34 N.M. 501, 284 P. 1019 (1930).
Appellant has misconstrued the ruling of the Tierney case, which involved the liability of an estate for the superadded liability of bank stock which had been owned by the decedent. The liability accrued when the bank became insolvent--subsequent to the death of the decedent. This court held that this was not a liability governed under the claim statutes, but insead was a liability which fell upon the estate 'during the course of administration.' Such is not the situation here, where the obligation was created by the decedent herself prior to her death when she signed the lease. That this is a critical distinction between these two cases is verified by the following language from the Tierney case, which was taken from Martin v. Saxton, 48 Utah 488, 160 P. 441 (1916):
'We think the demands and claims referred to in the statute requiring presentation are those arising out of contracts or transactions with the decedent, and not to claims or transactions had with the executor or administrator.'
Thus appellee's actions did not exempt appellant's claim from the nonclaim statute, which we have held to be mandatory to such a degree that failure to file cannot be excused by the doctrine of estoppel or waived by the representative. In re Landers' Estate, 34 N.M. 431, 283 P. 49 (1929) held:
Appellant's second contention is based upon the fact that under the terms of the lease she had secured the payment of unpaid rent by means of a lien upon the liquor license on the property. From this appellant reasons that appellee acquired the license subject to the encumbrance, and that the right to enforce this lien exists independently of the nonclaim statute. Furthermore, maintains appellant, the encumbrance somehow attaches to the proceeds of the sale of the license by the appellee. In support of this position, appellant relies upon Shortle v. McCloskey, 39 N.M. 273, 46 P.2d 50 (1935) and In re Kenney's Estate, 41 N.M. 576, 72 P.2d 27 (1937).
We find nothing in Shortle v. McCloskey, supra, to support appellant's position. That case was concerned with the question of priority between a mortgage and administration expenses. In re Kenney's Estate, supra, involved a debt secured by a mortgage on real property which had been owned by decedent. That case held that '(a) mortgage debt is not barred by limitation because not filed for payment with the executor or administrator' and that it 'does not become a debt of the estate unless the payee elects to file it as a claim.' It further held, however, that failure to file it as a claim against the estate would prevent a claim for a deficiency after the proceeds of the foreclosure sale had been applied to the payment of the debt, i.e., only the encumbered property can be looked to if no claim is filed.
In re Kenney's Estate, supra, appears to reflect the general rule: A mortgagee who disregards the claim procedure and looks only to the security waives any later claim against the assets of the estate for a deficiency. See 3 Bancroft's Probate Practice, §§ 790--94 (2d Ed. 1950). Similarly, many jurisdictions allow the mortgagee to look to the assets for a deficiency if he has filed a timely claim. Id. § 792. Although this rule is usually recited with respect to real property, it appears that it also applies to personal property. Id. § 795.
In this case, however, the security (the liquor license) has been sold; with the approval of the probate court and without any apparent objection by the appellant. Appellant now, however, asserts that appellee holds the proceeds of that sale 'for those having an interest and that includes appellant.' Appellee, on the other hand, asserts that because of the holding In re Kenney's Estate, it follows that if a claim is not filed, the estate is liable only in the sense that the encumbered realty is liable, and whatever right the appellant may have to enforce her lien against the third party purchaser is a separate problem which is not presently before this court.
We are in partial agreement with appellee. Appellant indicates a desire to enforce her lien against the security, but that is a question not...
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