BARKA V. HOPEWELL, 1923-NMSC-080, 29
N.M. 166, 219 P. 799 (S. Ct. 1923)
SUPREME COURT OF NEW MEXICO
1923-NMSC-080, 29 N.M. 166, 219 P. 799
Error to District Court, Bernalillo
County; Hickey, Judge.
Action by Jean Barka against Anna W. Hopewell,
executrix of the last will and testament of W. S. Hopewell, deceased. Judgment
for defendant, and plaintiff brings error.
1. The probate courts are vested with exclusive original
jurisdiction to hear and determine all controversies with regard to the duties,
accounts, and settlements of executors, administrators, and guardians.
2. The district courts have no original jurisdiction of
matters involving estates which are in process of probate, unless relief in
equity is necessarily sought.
3. Where real estate belonging to an estate is omitted from
the inventory and appraisement, it should be called to the attention of the
probate court and caused to be included in a supplemental inventory and
appraisement.
4. A creditor of an estate which is in process of probate,
who desires to force a sale of the assets belonging to such estate, whether
real estate or personalty, should apply to the probate court to have it direct
the executor or administrator to take the necessary steps to bring about such
sale.
5. Complaint examined, and
held to state no facts
entitling the plaintiff to equitable relief, because under such facts she has a
complete and adequate remedy at law.
Edward D. Tittman, of El Paso, Texas, for
plaintiff in error.
E. W. Dobson, of Albuquerque, for
defendant in error.
Bratton, J. Parker, C. J., and Botts, J.,
concur.
{*167} {1} OPINION OF THE COURT The plaintiff in error, Jean
Barka, is the daughter of Willard S. Hopewell, deceased, and is a legatee under
his last will and testament, which is being probated in the probate court of
Bernalillo county. The defendant in error, Anna H. Hopewell, is the surviving
widow of the said Willard S. Hopewell, and is the duly qualified and acting
executrix under such will.
{2} In her complaint the
plaintiff in error charged that the inventory and appraisement which was filed
in the probate court includes real estate of the value of $ 4,783.33, stocks
and bonds of the value of $ 9,427.50, and a certificate of deposit in the sum
of $ 6,700; that said executrix filed a report in the probate court showing she
had collected cash in the sum of $ 3,419.22; and that since said report was
filed she had collected, in cash, the further sum of $ 1,500. It was further
charged that certain described real estate, of the value of $ 49,000, belonging
to such estate, was omitted from the inventory; that claims not exceeding $ 855
had been approved {*168} and allowed;
and that a judgment in the sum of $ 14,500 was outstanding and unpaid. She
further charged that she was a legatee under such will, by which she was given
the sum of $ 5,000, of which sum she had been paid $ 650; that she had demanded
payment of the remainder of her legacy, which had been refused for the reason
the debts due by said estate had not been paid. A copy of the will was made a
part of the complaint. The provision under which plaintiff in error derives her
right is as follows:
"I hereby give, and bequeath and devise unto my
daughter, Mrs. Jean Barka, the sum of five thousand dollars ($ 5,000) to be
paid to her by my said executrix hereinafter named out of any part or portion
of my estate after the payment of my debts."
{3} She prayed that the
executrix be compelled to account to her for all the assets belonging to said
estate, including the real estate not incorporated in the inventory and
appraisement, and that said executrix be compelled to pay the remainedr due
upon such legacy.
{4} The defendant in error
interposed a demurrer which attacked the sufficiency of this complaint in
several respects, among them being that the district court of Bernalillo county
had no jurisdiction of the matters pleaded, but that the probate court of said
county had the exclusive original jurisdiction thereof. This demurrer was
sustained and the complaint dismissed.
{5} The probate courts of the
several counties within this state are, by statute, given exclusive original
jurisdiction in numerous matters concerning estates and the duties of
executors, administrators, and guardians with reference thereto, among them
being the settlement and allowance of all accounts; the hearing and
determination of all controversies respecting wills; the hearing and determination
of all controversies respecting the duties, accounts, and settlements of such
executors, administrators, and guardians. Section 1430. Code 1915, which
confers this jurisdiction, provides:
"The probate courts shall have exclusive original
jurisdiction {*169} in all the following
causes, to wit: The probate of last wills and testaments, the granting of
letters testamentary and of administration and the repealing and revocation of
the same, the appointment and removal * * * of guardians of orphans and persons
of unsound mind, the binding out of apprentices, the settlement and allowances
of accounts of executors, administrators and guardians, the hearing and
determination of all controversies respecting wills, the right of executorship,
administration and guardianship, the hearing and determination of all
controversies respecting their duties, accounts and settlements of executors,
administrators and guardians, the hearing and determination of all
controversies between master and those bound to him, the hearing and
determination of all controversies respecting any order, judgment or decree in
such probate courts with reference to any of the foregoing matters of which the
probate courts are herein given exclusive original jurisdiction, and no suit
shall be prosecuted or begun in any district court to review or in any manner
inquire into or reopen or set aside any such order, judgment or decree, and no
such order, judgment or decree shall be reviewed or examined in any district
court except upon an appeal taken in the manner provided by law."
{6} The terms of this statute
are very broad, and they embrace a wide field. The probate courts are thereby
given the exclusive original jurisdiction to hear and determine all
controversies with regard to the settlement and allowances of accounts of
executors, administrators, and guardians, and to determine all controversies
respecting their duties, accounts, and settlements. The apparent object in view
and purpose sought to be accomplished was to give complete jurisdiction to the
probate court over the management of estates in so far as administering legal
relief was concerned. And it is now the well settled and firmly declared law in
this state that, by virtue of its provisions, the district courts have no
original jurisdiction of matters concerning estates which are in process of
probate, unless equitable relief is necessarily sought. To obtain relief in
equity is the only instance in which the district courts can exercise original
jurisdiction on such subjects. Perea v. Barela,
5 N.M. 458,
23 P. 766, and Id.,
6 N.M. 239,
27 P. 507; Candelaria v. Miera,
18 N.M. 107,
134 P. 829; Michael v.
Bush,
26 N.M. 612,
195 P. 904.
{7} Plaintiff in error
contends that by the terms of the
{*170} Constitution
the district courts alone are vested with the exercise of original equitable
jurisdiction; that the statute referred to cannot be held to grant exclusive
original jurisdiction to the probate courts with regard to matters involving
equitable jurisdiction, because it would run afoul with such constitutional
provision. With this as an abstract statement of law, we have no quarrel. She
asserts that she is proceeding in equity to compel an accounting on the part of
the executrix of all the property of the estate, including that omitted from the
inventory, so that it becomes necessary for us to determine whether under the
facts pleaded she is entitled to such relief. To begin with, resort to equity
cannot be had where the party has a complete and adequate remedy at law. This
is a principle so well established that we deem it altogether unnecessary to
cite authorities to support it.
{8} The only possible
necessity for an accounting on the part of the executrix, under the facts shown
in the complaint, arises from the omission to include in the inventory certain
described real estate, as it does not appear that any controversy exists with
regard to the validity of the bequest in question, nor the liability of the
estate for its payment. To the contrary the validity of the legacy seems to be
admitted and certain payments made to apply on it. If this inventory was filed
while section 2246, Code 1915, was still in force and effect, such real estate
should not be included therein, because by the terms of such statute personal
property alone should be included in an inventory. This statute, however, was
superseded by chapter 179, Laws 1921, which became effective on March 14, 1921,
by the terms of which it is made the duty of executors and administrators to
include in an inventory both real and personal property. The pertinent part
thereof is found in section 10 as follows:
"That all executors and administrators, shall
within thirty days after the date of their appointment, or if necessary, such
further time not exceeding two months, as the court may allow, make and file
with the clerk of the probate court an inventory, under oath, of all real and
personal property of the {*171} deceased
which shall come to their knowledge or possession."
{9} From the complaint, which
was filed on November 14, 1921, we are unable to determine when the inventory
in question was filed in the probate court, but assuming that it was filed
after chapter 179, Laws 1921, supra, became effective, so that it was the duty
of the executrix to include the real estate belonging to the estate therein,
and that she filed to do so, under such circumstances it was the duty of the
appellant to present the matter to the probate court, and have the executrix
file a supplemental inventory including such omitted real estate therein and
have it appraised as is provided by section 2247, Code 1915, which reads:
"If, after the filing of the inventory, property
not mentioned therein shall come to the knowledge or possession of the executor
or administrator, it is his duty immediately to make an inventory thereof, and
cause the same to be appraised in the manner prescribed in this article, and
file the same with the clerk."
{10} By so doing she would be
in complete and adequate relief in law so far as bringing this real estate into
an inventory and having it appraised as a part of the estate are concerned.
{11} Turning now to the next
contention of the plaintiff in error that she is entitled to proceed in the
district court because she is endeavoring to force a sale of the real estate
belonging to this estate in order to pay off the debts, including her legacy,
and that the district court alone can order such a sale, we think it was
incumbent upon her to present this matter to the probate court by an
appropriate motion or application, seeking to have it direct the executrix to
take the necessary steps, by a proceeding in the district court, to obtain an
order of sale. Section 1430, Code 1915, supra, by its express and unambiguous
language, grants to the probate court exclusive original jurisdiction to
supervise and determine all questions involving the duties of executors,
administrators or guardians. This broad language was intended to keep the
entire management,
{*172} supervision,
and control of the actions of such executors, administrators, and guardians
within the jurisdiction of the probate courts. To sell the lands of an estate
to pay off the debts of the decedent is but one of the duties of an executor or
administrator. To take the necessary steps to bring about a valid sale is an
incident to that duty. These are matters which fall within the terms of the
statute which gives exclusive original jurisdiction to the probate courts to
control. The same course should be followed in order to force a sale of
personal property belonging to an estate in order to pay off its debts. If she
failed to obtain the relief from the probate court, to which she was entitled,
she could invoke the jurisdiction of the district court by appealing thereto in
compliance with sections 1438 and 1439. Code 1915, or, in this case, the
inventory showing assets belonging to such estate in excess of $ 2,000 she
could remove the entire proceeding to the district court by complying with
chapter 40, Laws 1919. So that, with reference to bringing the real estate
omitted from the inventory into the assets of the estate, as well as bringing
about a sale of the assets of such estate, both realty and personalty, a
complete and adequate remedy at law is afforded by proceeding in the probate
court in compliance with the terms of these statutes. The complaint does not
charge any fraudulent mismanagement or devastavit on the part of the executrix;
it fails to charge that the failure to include the omitted real estate in the
inventory was knowingly, purposely, or fraudulently done; it is nowhere alleged
that any controversy exists with regard to such real estate belonging to the
estate. It affirmatively appears that such executrix does not have in her
possession sufficient cash with which to pay off the debts of the estate,
including the legacy in question, and that such legacy is not payable until all
the debts are paid. In fact, no fraud whatever is charged, and no facts are
shown which entitle the appellant to relief in equity.
{12} It follows that the
district court was without jurisdiction, and that the demurrer was properly
sustained.
{*173} The judgment should,
therefore, be affirmed; and it is so ordered.