IN RE ESTATE OF ONEY, 1981-NMCA-026, 95
N.M. 640, 624 P.2d 1037 (Ct. App. 1981)
IN THE MATTER OF THE ESTATE OF BILLY
JACK ONEY, DECEASED,
EDNA ONEY, Personal Representative of the ESTATE OF
BILLY JACK ONEY, Appellant
vs.
JERRY ODOM and COLEEN ODOM, and their Trustee in
Bankruptcy, Appellees.
COURT OF APPEALS OF NEW MEXICO
1981-NMCA-026, 95 N.M. 640, 624 P.2d 1037
Appeal from the District Court of
Valencia County, Sedillo, Judge
ROGER V. EATON, CAMPBELL, CHERPELIS &
PICA, Albuquerque, New Mexico, Attorneys for Appellant.
HAROLD J. BREEN, BROXTERMAN & BREEN,
Albuquerque, New Mexico, Attorneys for Appellees.
Wood, J., wrote the opinion. WE CONCUR: B.
C. Hernandez, C.J., Mary C. Walters, J.
{1} This interlocutory appeal
involves the late presentment of claims against an estate. We discuss the
interrelationship of §§ 45-3-803 and
45-3-804, N.M.S.A. 1978.
{2} Oney died in November, 1978.
Administration proceedings were opened in December, 1978 and the first notice
to creditors "to present their claims within two months after the date of
the first publication of the notice or be forever barred" (§
45-3-801,
N.M.S.A. 1978) was published on December 14, 1978. The two-month period expired
on February 14, 1979.
{3} The claimants are the
Odoms and their trustee in bankruptcy. Their "formal claim" was for
breach of contract and wrongful repossession. Without reference to this
"formal claim", the claimants, at times, characterize their claims as
involving assault, trespass, conversion and violation of the Commercial Code.
An additional claim was for fraud. We do not dispose of the fraud claim on the
basis that it was not raised in the trial court, R. Civ. App. 11; rather, we
consider it on the merits.
{4} The pertinent provisions
of § 45-3-803, supra, are:
A. All claims against a decedent's estate which arose before
the death of the decedent, including claims of the state and any subdivision thereof,
whether due or to become due, absolute or contingent, liquidated or
unliquidated, founded on contract, tort or other legal basis, if not barred
earlier by other statutes of limitations, are barred against the estate, the
personal representative and the heirs and devisees of the decedent, unless
presented as follows:
(1) within two months after the date of the first publication
of notice to creditors if notice is given in compliance with Section 3-801
[45-3-801 NMSA 1978], except that claims barred by the nonclaim statute at the
decedent's domicile, before the first publication for claims in this state, are
also barred in this state; or
(2) within three years after the decedent's death, if notice
to creditors has not been published.
B. All claims against a decedent's estate which arise at or
after the death of the decedent, including claims of the state and any
subdivision thereof, whether due or to become due, absolute or contingent,
liquidated or unliquidated, founded on contract, tort or other legal basis, are
barred against the estate, the personal representative and the heirs and
devisees of the decedent, unless presented as follows:
(1) a claim based on a contract with the personal
representative, within four months after performance by the personal
representative is due; and
(2) any other claim, within four months after it arises.
{5} Section 45-3-803(A),
supra, refers to claims "which arose before the death of
{*642} the decedent * * * *" Claimants
recognize that all claims, except the one for fraud, arose before Oney's death,
and that the two-month provision applies. None of the "arose before the
death" claims were presented before the two-month provision expired on
February 14, 1979.
{6} Section 45-3-803(B),
supra, refers to claims "which arise at or after the death of the decedent
* * * *" Claimants assert the fraud claim comes within this category, and
that they had four months to present the fraud claim after it arose. Assuming,
but not deciding, that § 45-3-803(B), supra, does apply, claimants' brief
refers to the fraud claim arising in "early 1979". No fraud claim was
presented within four months after it arose.
{7} Although not specifically
stated, claimants may be contending that a claim for breach of contract not
timely presented under § 45-3-803(A), supra, was subsequently amended, or
identified to be, a fraud claim under § 45-3-803(B), supra, and because of this
subsequent change, the four-month provision rather than the two-month provision
should apply. If such is the contention, it is without merit. The fraud claim
stated in claimants' proposed first amended complaint relies on entirely
different conduct allegedly resulting in an entirely different wrong than the
conduct allegedly resulting in a breach of contract. See
Scott v. Newsom,
74 N.M. 399,
394 P.2d 253 (1964). The amendment or identification of this claim
as one of fraud rather than in contract, after the two-month period had
expired, was insufficient to change the time period from two months under §
45-3-803(A), supra, to four months under § 45-3-804(B), supra.
Ziegler v.
Kramer, 175 Mont. 236, 573 P.2d 644 (1978).
{8} Claims not timely
presented under § 45-3-803, supra, are barred. Being barred, claimants may not
recover on the untimely claims.
Mathieson v. Hubler,
92 N.M. 381,
588
P.2d 1056 (Ct. App. 1978).
{9} The estate moved the
trial court for an order declaring that claimants' claims were barred. The
trial court denied the motion, ordered that claimants be allowed to present
their claims under § 45-3-803, supra, and ruled that "good cause"
existed for authorizing the late presentments. The trial court's theory of
"good cause", stated from the bench, was "everybody should have
their day in court if there is any controversy of this sort so I'm going to
extend the time." This view, which disregards statutory provisions, is not
defended in this appeal.
{10} Claimants assert that §
45-3-804(C), supra, "grants to the District Court a reservoir of equitable
power in respect to contingent and/or unliquidated claims, such as indefinite
tort claims, to allow an extension of time
in order to avoid injustice
in which to commence a proceeding to obtain payment from the estate of the
claim." (Claimants' emphasis.) This is a misreading of the statute.
{11} Section 45-3-804, supra,
reads:
Claims against a decedent's estate may be presented as
follows:
A. the claimant may deliver or mail to the personal
representative a written statement of the claim indicating its basis, the name
and address of the claimant and the amount claimed, or he may file a written
statement of the claim with the district court. The claim is presented on the
first to occur of receipt of the written statement of claim by the personal
representative, or the filing of the claim with the district court. If a claim
is not yet due, the date when it will become due shall be stated. If the claim
is contingent or unliquidated, the nature of the uncertainty shall be stated.
If the claim is secured, the security shall be described. Failure to describe
correctly the security, the nature of any uncertainty, and the due date of a
claim not yet due does not invalidate the presentation made;
B. the claimant, without the necessity of filing a claim, may
commence a proceeding against the personal representative in any court where
the personal representative may be subjected to jurisdiction, to obtain payment
of his claim against the estate, but the commencement {*643}
of the proceeding must occur within the time limited for presenting the
claim. No presentation of claim is required in regard to matters claimed in
proceedings against the decedent which were pending at the time of his death;
C. if a claim is presented under Subsection A of this
section, no proceeding thereon may be commenced more than sixty days after the
personal representative has mailed a notice of disallowance. However, in the
case of a claim which is not presently due or which is contingent or
unliquidated, the personal representative may consent to an extension of the
sixty-day period, or to avoid injustice, the district court, on petition, may
order an extension of the sixty-day period, but in no event shall the extension
run beyond the applicable statute of limitations.
{12} Section 45-3-804(A),
supra, deals with presentment of a claim to the personal representative.
Section 45-3-804(C), supra, states that
if a claim has been presented,
and the claim has been disallowed, proceedings to collect the disallowed claim
may be commenced within 60 days after the mailing of the notice of
disallowance. For certain claims, the trial court may extend this 60-day period
in order to avoid injustice. Section 45-3-804(C), supra, deals with a time for
bringing suit to collect a timely presented claim that had been denied.
{13} Section 45-3-804(C),
supra, does not deal with the time limits for presenting claims under §
45-3-803, supra, and does not authorize the trial court to extend the time
limits of § 45-3-803, supra. This view of the statute is:
(a) Consistent with § 45-3-804(B), supra, which permits suit
to collect a claim, without presentment to the estate representative, but such
suit must be commenced "within the time limited for presenting the claim *
* * *"
(b) Consistent with pre-Probate Code decisions to the effect
that the timely filing of a claim is mandatory, and if not timely filed, the
claim is barred as a matter of law. In re Will of Skarda, 88 N.M. 130,
537 P.2d 1392 (1975); In re Estate of Welch, 80 N.M. 448, 457 P.2d 380
(1969).
{14} The trial court's order
allowing presentment of claimants' claims is reversed; the cause is remanded
with instructions to enter a judgment declaring that claimants' claims are
barred.
Hernandez, C.J., and Walters, J., concur.