93 F. Supp. 120 | D.N.M. | 1950
These suits arise out of a collision of two automobiles on a highway in New Mexico. Stated briefly, these facts are alleged on the face of the pleadings. W. 'G. Pin-son owned one of the automobiles involved in the accident, and it was being driven by Lillian Edith Pinson, his wife. Lillian Edith Pinson was injured and died instantly or shortly after the accident, and W. G. Pinson was later appointed and qualified as the administrator of her estate. Helen R. Abbott was driving the other automobile involved in the collision. Her husband, W. Lewis Abbott, was riding in the automobile and he was killed as a result of the accident. Jean Reid Knerr, sister of Helen R. Abbott, and Rosanne S. Knerr, daughter of Jean Reid Knerr and niece of Helen R. Abbott, were riding in the automobile, and they sustained personal injuries. And Helen R. Abbott was also injured.
The first cause is an action brought by W. G. Pinson, administrator of the estate of Lillian Edith Pinson, and W. G. Pinson, ■ individually, against Helen R. Abbott. The complaint is in two causes of action. In the first cause of action Pinson, as administrator, seeks damages for the injuries and death of his wife, and for funeral expenses. In the second cause of action, Pinson, individually, seeks recovery for damages to the automobile owned by him and driven by Lillian Edith' Pinson. By answer, Helen R. Abbott denies negligence on her part, pleads that the negligence of Lillian Edith Pinson was the proximate cause or a contributing cause of the accident; and by counterclaim she seeks damages against Pinson, as administrator, and against him individually. By reply, Pinson, as administrator, and individually, pleads generally that the counterclaim fails to state a claim against Pinson, as administrator, upon which relief can be granted, and further that recovery cannot be had on the counterclaim for the reason that the estate of Lillian Edith Pinson is pending in the probate court of Union County, New Mexico, and that no claim of Helen R. Abbott has ever been filed in the probate proceeding and notice thereof given as required by the law of New Mexico.
The second cause was instituted by The Colorado Springs National Bank, administrator of the estate of W. Lewis Abbott, deceased, against W. G. Pinson, administrator, and W. G. Pinson, individually. By answer, W. G. Pinson, administrator, pleads generally that the complaint fails to state a cause of action for which relief can be granted, and further that no claim arising out of the death of W. Lewis Abbott has been filed in the probate proceedings of the estate of Lillian Edith Pinson. Defendant Pinson, as administrator, and individually, was permitted to bring in Helen R. Abbott as a third-party defendant; and by third-party complaint he seeks judgment against her for all sums which plaintiff may recover against him, or in the alternative for contribution. Helen R. Abbott, as third-party defendant, dfenies liability on her part but she does not seek any affirmative relief.-.
W. G. Pinson, administrator, filed in each case a motion for summary judgment in his favor insofar as recovery is sought against him as administrator for the reason that there is no material fact in issue as to the failure to file any claim in the probate proceeding involving the estate of Lillian Edith Pinson, deceased, arising out of the accident to which reference has been made and that he is entitled to judgment as a matter of law. The cases were consolidated for trial. At the oral argument on the motions for summary judgment, a certificate of the clerk of the probate court of Union County was tendered certifying that no claim predicated upon injuries arising out of the accident referred to has been filed in the proceeding involving the estate of Lillian Edith Pinson.
The question posed on the face of the pleadings, brought into focus by the motions for summary judgment, and ably presented on oral argument and in briefs subsequently filed at the request of the court, is whether a suit for damages arising out of the alleged negligence on the part of Lillian Edith Pinson in the operation of the automobile belonging to her husband may be maintained against the administrator of her estate without a claim having been presented in the probate proceeding of her estate. Section 33-802, New Mexico Statutes Annotated 1941, provides that it shall be the duty of the probate judge to hear and determine claims against an estate; that all such claims shall be stated in detail, sworn to, and filed; that five days notice of the hearing thereof, accompanied by a copy of the claim, shall be served on the executor or administrator, unless the claim shall have been approved by the executor or administrator, in which case it may be allowed by the judge without such notice. And section 33-803 provides that all claims against an estate not filed and notice given, as provided in the preceding section, within six months from the date of the first publication of notice of the appointment of the executor or administrator, shall be barred; and that no suit upon any claim shall be maintained unless it be begun within twelve months after the date of the first publication of the notice of the appointment of the executor or administrator. With certain changes presently to be noted, section 33-803 appeared as section 2062, Compiled Laws 1897, section 2278, Code 1915, and section 47-505, Compiled Statutes 1929. In its earlier form it provided that claims not filed in a probate proceeding and notice given within one year from the date of the appointment of the executor or administrator should be barred. By chapter 136, section 1, Laws of 1937, it was amended to provide that claims not filed and notice given within six months from the date of the first publication of notice of the appointment of the executor or administrator shall be barred.
In some of the cases just reviewed it affirmatively appears that the claim or claims were based upon contract. In others the nature of the claim or claims does not appear. But in none of the cases did the court indicate that the statute is limited to claims arising out of contract and has no application to claims sounding in tort. There is no intimation in any of the cases that claims based upon contract are within the statute but those sounding in tort are excluded from it. The cases will be searched in vain for any suggestion in that direction. Instead, the supreme court of the state iterated and reiterated in broad language that all claims against the estate of a deceased person must be seasonably filed for allowance in the probate proceeding and notice thereof given within the time specified in the statute, otherwise they are barred. And the sweep of that seemingly all-inclusive language cannot be overlooked.
Since the exact question has not been squarely determined by the highest court in New Mexico, it is appropriate to turn to other states having statutes identical
In an effort to sustain the right to seek.damages from the administrator without having filed any claim in the probate proceeding, it is argued that under the law of New Mexicb the probate court does not have jurisdiction to entertain and adjudicate unliquidated claims of the kind and in the respective amounts involved here, and that therefore it cannot be said that the legislature intended that such claims be filed in the probate proceeding or be barred. It may be conceded without deciding that the probate court is without jurisdiction to entertain, determine, and allow claims of the kind and in the respective amounts upon which recovery is presently sought against the administrator. But that is not decisive. In the case of In re Baeza’s Estate, supra, it was said that the statute was enacted to apprise the administrator and the probate judge of claims against the estate of the decedent and to facilitate the closing of estates with safety. Whatever may have been the underlying considerations which prompted the enactment of the statute, it was well within the power of the legislature in exercise of its judgment to provide that unless such claims are filed within the time fixed, they become barred. The highest court of the state has held in general language that the statute has application to all claims and it is not for this court to narrow or proscribe its effective scope by strained or tortured construction.
In, a further effort to sustain the right to proceed against the administrator without having filed any claim in the probate court, it is argued that section 33-803, supra, is procedural, not substantive; and that it cannot interfere with this court in a case in which it has jurisdiction of the subject matter. These are transitory actions and the jurisdiction of the court rests upon diversity of citizenship with the requisite amount in controversy. It was said in Re Baeza’s Estate, supra, that the statute is one of limitations. That case was an appeal in the probate proceeding rather than an independent action against the administrator. But if the statute when invoked in an independent suit against the administrator is-in essence one of limitations, it has application in these transitory actions in which the jurisdiction of this court rests upon diversity of citizenship. Underwood v. Patrick, 8 Cir., 94 F. 468. And if the statute when invoked in an independent action against the administrator to recover damages for tort extinguishes or takes away the right of recovery unless the claim was seasonably filed in the probate proceedings, it likewise has application here. Rickman v. E. I. Du Pont De Nemours & Co., 10 Cir., 157 F.2d 837.
The motions for summary judgment insofar as recovery against W. G. Pinson, as administrator, is concerned will be severally sustained.