IN RE ESTATE OF DE LA FUENTE, 1979-NMSC-051,
93 N.M. 87, 596 P.2d 856 (S. Ct. 1979)
In the Matter of the ESTATE of Carlos DE
LA FUENTE,
Deceased; Joe HOLLAND, Petitioner-Appellant,
vs.
Kay de la Fuente HARMSTON, Administratrix-Appellee.
SUPREME COURT OF NEW MEXICO
1979-NMSC-051, 93 N.M. 87, 596 P.2d 856
LeRoi Farlow, Albuquerque, for
petitioner-appellant.
Toulouse, Krehbiel & DeLayo, James R.
Toulouse, Albuquerque, for administratrix-appellee.
SOSA, C.J., wrote the opinion. EASLEY and
PAYNE, JJ., concur.
{1} On May 12, 1977, Holland
petitioned the District Court of Bernalillo County to order administratrix, Kay
de la Fuente Harmston, to convey real estate located in Albuquerque to him,
pursuant to an alleged agreement entered into by Holland and the estate's
former administrator, Ray Shollenbarger, and the estate's attorney, Stephen
Lawless. Holland appeals from an order dismissing his petition.
{2} Carlos de la Fuente died
on February 24, 1975. He was survived by two minor children, Renee Carla de la
Fuente and Kevin de la Fuente. Harmston, Fuente's ex-wife, is the conservator
of Renee's estate and has been at all times represented by counsel. Kevin was
never located. At no time during these proceedings was he represented by
counsel or by a guardian ad litem.
{3} Shollenbarger was
appointed administrator of Fuente's estate in March 1975. Lawless was appointed
as attorney of the estate in June 1975. On June 17, 1975, Shollenbarger filed a
petition in district court to
rent the property to Holland, with 60% of
the mortgage payments being applied to the possible future purchase of the
property. At the time that Shollenbarger filed that petition, there was neither
an appointment of a guardian ad litem by the court in the probate proceedings
nor any legal guardianship filed in New Mexico for the minor heirs.
{*88} {4} The court's Order provided in part:
3. That the Administrator has a Lessee who will pay as rent
the mortgage payments on the home, with sixty percent (60%) being applied to a
possible purchase in the future.
4. That approval for such
rental has been obtained
from the only heir to the Estate who can be found, Kay de la Fuente Harmston,
Conservator of the Estate of Renee Carla de la Fuente, a protected person.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the
Administrator of the Estate of Carlos de la Fuente, Deceased be allowed to rent
the aforementioned property to a Lessee who will pay as rent the
mortgage payments on the home with sixty percent (60%) being applied to a
possible future purchase. (Emphasis added.)
Holland moved into the house on July 1, 1975, and made the
mortgage payments from that date to August 1978, totaling $11,581. He also made
improvements and repairs on the property amounting to approximately $5,000.
{5} Harmston petitioned that
Shollenbarger be removed as administrator in November 1975. She and
Shollenbarger stipulated that the First National Bank of Albuquerque be appointed
administrator. Harmston was substituted and appointed administratrix in April
1977.
{6} A $50,000 lien had been
filed against the real estate prior to June 10, 1975, by Suzette Hausner, who
alleged that she had purchased the property. This claim was eventually settled.
{7} In his petition, Holland
alleged that he entered into a rent-purchase agreement with Lawless, by which
Holland was to make the monthly payments on the mortgaged property. Sixty
percent of these payments were supposedly to be applied to the down payment of
the sales price of the property.
{8} The district court found
that Holland was a renter of the property and a volunteer in making the
improvements. The court concluded that the real estate descended directly to
the heirs and that there was no guardianship or guardian ad litem appointed in
the probate proceedings to sell the property. The court also concluded that the
alleged agreement between Holland, Lawless, and Shollenbarger was void. We
agree.
{9} In determining whether Shollenbarger
or Lawless had the authority to enter into an agreement to sell the real estate
in question, we consider §§ 31-7-1 through 31-7-11, 32-1-29, and 32-1-30,
N.M.S.A. 1953 (repealed N.M. Laws 1975, ch. 257, § 9-101). Section 32-1-29
provides that a guardian or next friend petition the court for approval prior
to the sale of the real estate. Section 32-1-30 requires the appointment of a
guardian for purposes of supervising the sale or conveyance of property and the
court's approval after the transaction is completed and before the transfer of
title from the minor's name. None of these requirements were complied with in
this case. The court properly determined that Shollenbarger and Lawless had no
authority to enter into an agreement to sell the property, which vested in the
minor children, without approval of the court or the appointment of a guardian
ad litem for the minor heirs.
{10} We find that there was
substantial evidence to support the court's findings and conclusions of law.
Finding no error, we affirm the decision of the district court dismissing
Holland's petition.
EASLEY and PAYNE, JJ., concur.