Ware v. Farmers' Nat. Bank of Danville

• Decision Date: 26 July 1933
• Docket Number: No. 3779.,3779.
• Citation: 37 N.M. 415,24 P.2d 269
• Parties: WAREv.FARMERS' NAT. BANK OF DANVILLE et al.
• Court: New Mexico Supreme Court

37 N.M. 415

24 P.2d 269

WARE

v.FARMERS' NAT. BANK OF DANVILLE et al.

No. 3779.

Supreme Court of New Mexico.

July 26, 1933.

Appeal from District Court, Union County; H. A. Kiker, Judge.

Action by Luther W. Ware, ancillary executor of the estate of J. F. Ware, deceased, against the Farmers' National Bank of Danville, a corporation, and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Probate court's judgment allowing claims against estate held not invalid because heirs and legatees lacked notice of hearing. Comp.St.1929, § 47-504.

O. P. Easterwood, of Clayton, for appellants.

H. B. Woodward, of Albuquerque, and Adolf J. Krehbiel, of Clayton, for appellee.

ZINN, Justice.

The probate court of Union county on September 26, 1925, approved and allowed claims of Luther W. Ware against the estate of J. F. Ware in the sum of $4,675, together with interest in the sum of $1,220. Luther W. Ware, as ancillary executor of said estate, the appellee here, thereafter brought this action pursuant to 1929 Comp. St. § 105-2101, to sell a sufficient amount of the real estate belonging to said estate to satisfy said sum, alleging that there was insufficient personal property or cash to pay the same. The appellants, as defendants below, in their answer to the action of the appellee to sell the real estate, admitted that the claims of Luther W. Ware against said estate had been allowed by the probate court, but denied that they were valid.

The validity of the appellee's claims are questioned by appellants for two reasons: First, that the appellants, as heirs and legatees, had no notice of the claim of the petitioner as filed in the probate court of Union county, or of the order of said court allowing said claims; and, second, that the Boyle county circuit court of Kentucky, in which the principal administration proceeding was had, about two and one-half years after the Union county New Mexico probate court had allowed the claim of Luther W. Ware, had disallowed said claim in part, and that such judgment of the Kentucky court is superior and controls over any judgment that may have been rendered by the probate court of Union county.

The trial court entered judgment directing the appellee, as ancillary executor, to first employ the personal property and cash of the decedent, the total of said cash and personal property amounting to $1,244.45, to pay said claims, and to sell a sufficient amount of the real estate to satisfy the remainder. The appellee, pursuant to the judgment, and in the manner provided by law, made said sale of the real estate without objection by the appellants, to one Mary Ward Scott, and the sale was thereafter duly confirmed by the court, without objection by the appellants. The appellants prayed an appeal from the judgment, which appeal was allowed.

It was not urged by the appellants in the lower court or here that the claims of the petitioner had been unjust, improper, fraudulent, nor do they present any other legal or equitable grounds why the allowance of the claims, to satisfy which this action was brought, is invalid, other than the fact that notice was not given to the appellants of the hearing had in the probate court of New Mexico, involving the petitioner's claims, and also that the judgment of the Kentucky court is controlling.

[1] The appellants fail to cite and we can find no provision in our law which requires notice to be given to heirs, legatees, devisees, creditors, or others who may be interested in an estate upon hearings to be had by the probate court before claims are allowed against the estate. 1929 Comp. St. § 47-504, provides for notice to the executor or administrator, but none to the heirs or legatees, and failure to give notice to the appellants before the claim of petitioner was allowed, by the probate court of Union county, does not make the judgment of the probate court of Union county granting the petitioners' claim invalid.

It might be salutary that notice be given to heirs and others interested before claims are allowed by probate courts. In many instances the allowance of claims have far-reaching effects. Most important interests, the estates of widows and children, are involved. But, when the appellee's claims were allowed, the law was clear that no notice to the appellants was required.

The appellants' contention that the judgment of the Kentucky court, entered approximately two and one-half years subsequent to the New Mexico judgment, is controlling, and therefore the real estate of the decedent should not be sold to pay the claim of appellee, is without merit.

What the appellants seek to do here, in an action to sell real estate of a decedent to pay debts, is to wage the judgment of the Kentucky court against the judgment of the New Mexico probate court. The presumption is in favor of the validity of the judgment of the probate court of New Mexico, and such presumption cannot be overcome by the judgment of a court of another jurisdiction.

We held in the case of Sheley v. Shafer, 35 N. M. 358, at page 370, 298 P. 942, 948, as follows: “The law is well settled that an administrator in one jurisdiction is not in privity with an administrator of the same estate in another jurisdiction.”

There being no privity between administrators appointed in different states, a judgment obtained in the Kentucky court is not binding upon the administrator of this state, nor is the judgment obtained in the Kentucky court evidence of the debt in this state. The judgments of the probate court of New Mexico are entitled to the same favorable presumptions and the same immunity from collateral attack as are accorded those of courts of general jurisdiction. They are final and conclusive, unless corrected on appeal.

We do not hold that the judgment of the probate court allowing the claims, without notice to the heirs, was conclusive in this suit against the heirs to sell their real estate. We do hold that the fact that the claims were allowed without notice to the heirs was not in itself a sufficient defense in this suit. It should have been accompanied, in allegation and proof, by other facts showing that the claims were not just and legal.

The action of appellee was brought under the provisions of 1929 Comp. St. c. 105, art. 21, which is a statutory proceeding in the district court for the sale of real estate of decedents where the personal estate of said decedent is insufficient to discharge the just debts allowed against the estate; the validity of said claims having first been determined in the proper court.

In a proceeding to sell decedent's real estate to pay valid claims, the statute governing such procedure provides that the court upon the hearing of the cause, upon the issues formed, shall hear proofs on the issues tendered, and, if it shall appear that the personal estate will be insufficient to discharge the just debts and claims allowed against the estate and the legacies charged thereon, and expenses of administration, the court shall determine the amount of deficiency, and may direct that the real estate, or such portion thereof as may be necessary, be sold or leased by the executor or administrator, or that the executor or administrator raise money for the discharge of such debts and legacies, by mortgage of all or any part of such real estate or that any part of such real estate be sold, and the residue, or any thereof, be mortgaged or leased, according as may seem most for the interest of all persons interested in the estate. 1929 Comp. St. § 105-2107.

The trial court found that the claims of appellee were valid existing claims, and that there was insufficient personal property or cash to pay the same, and entered judgment directing the appellee, as ancillary executor, to first employ the personal property and cash of the decedent to pay said claims, and to sell a sufficient amount of real estate to satisfy the remainder. No objection was made to said judgment by the appellants. The appellee, pursuant to the judgment, and in the manner provided by law, made said sale of the real estate, and the sale was thereafter duly confirmed by the court. In this we find no error.

The judgment of the district court is therefore affirmed. It is so ordered.

WATSON, C. J., and SADLER and BICKLEY, JJ., concur.

HUDSPETH, Justice (dissenting).

A further statement of facts seems desirable. Two years before the death of J. P. Ware, a resident of Kentucky, the father of appellee, the appellee entered a 600-acre farm of decedent, rent free, except for the payment of taxes, under written contracts of lease containing provisions for compensating of appellee for any improvements which he might put upon the land. These contracts are set out in the amended answers of the minor defendants and the Farmers' National Bank of Danville (denominated in appellee's petition herein as “primary executor”), where it is denied that appellee made any improvements on the land. It is alleged that all improvements thereon were made by the decedent. While it is admitted that the claims of appellee were allowed by the probate court of Union county, N. M., their justness and validity are denied. These amended answers set up as further defense in this cause that appellee filed his answer in a certain cause pending in the circuit court of Boyle county, Ky., wherein the Farmers' National Bank of Danville, executor of the estate of J. F. Ware, deceased, instituted suit against the various heirs, legatees, and devisees for the purpose of selling certain real estate in order to raise funds with which to pay debts, etc.

“In which said suit said Luther W. Ware set out his claims in the sum of $1500 and the sum of $3175 against such estate, and that in said court in said cause above mentioned the said Luther W. Ware was only adjudicated the sum of $400 in full settlement of his claim against the estate of J. F. Ware on account of the care and maintenance of Charles O. Ware and Stanley Ware,...