{
  "id": 707773,
  "name": "In the Matter of the ESTATE OF Elizabeth H. CORWIN, Deceased. MERCHANTS BANK AND TRUST COMPANY OF NORWALK, CONNECTICUT, A Connecticut Banking Corporation, Personal Representative, Plaintiff-Appellant, v. Ruth C. MEYER, Heir, Defendant-Appellee",
  "name_abbreviation": "Merchants Bank & Trust Co. v. Meyer",
  "decision_date": "1987-07-14",
  "docket_number": "No. 9353",
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          "parenthetical": "where appellate review in worker's compensation case was brought solely for the benefit of attorney, free process allowed by statute did not apply, and each party would pay their own costs"
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          "parenthetical": "where appellate review in worker's compensation case was brought solely for the benefit of attorney, free process allowed by statute did not apply, and each party would pay their own costs"
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  "casebody": {
    "judges": [
      "MINZNER and APODACA, JJ., concur."
    ],
    "parties": [
      "In the Matter of the ESTATE OF Elizabeth H. CORWIN, Deceased. MERCHANTS BANK AND TRUST COMPANY OF NORWALK, CONNECTICUT, A Connecticut Banking Corporation, Personal Representative, Plaintiff-Appellant, v. Ruth C. MEYER, Heir, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "OPINION\nBIVINS, Judge.\nThis appeal requires us to determine whether United States Treasury notes fall within the category of probate assets that calls for reduced compensation to personal representatives and attorneys for personal representatives. NMSA 1978, Sections 45-3-719 and -720 contain the provisions for calculating such compensation. Section 45-3-719 of the Probate Code provides:\nUnless otherwise ordered by the court, a personal representative shall be entitled to a compensation of not more than ten percent on the first three thousand dollars ($3,000) and of not more than five percent on all amounts in excess of the first three thousand dollars ($3,000) upon property at its estimated value which shall come into his possession in his capacity as personal representative. However, if the property consists of the proceeds of life insurance policies, or cash, including checking accounts, time deposits, certificates of deposit, savings accounts, postal savings certificates and all United States government bonds, then the personal representative\u2019s compensation shall not exceed five percent of the first five thousand dollars ($5,000) and not exceed one percent on all amounts in excess of the first five thousand dollars ($5,000). No compensation or commission shall be paid on account of any real property, except such amount as may be allowed by the court upon proper cause being shown. [Emphasis added.]\nSection 45-3-720 provides that attorneys shall be allowed the same amount as fixed for the personal representatives as fees for representing the personal representative, unless otherwise fixed by the court. We hold that United States Treasury notes are subject to the reduced compensation calculations, and, therefore, affirm the district court.\nIn this case, the Merchants Bank and Trust Company of Norwalk, as personal representative, and its attorney applied for and received an award of compensation which calculated the estate\u2019s United States Treasury notes under the first part of Section 45-3-719, that is, ten percent of the first $3,000 and five percent of amounts in excess of $3,000. At the time the personal representative petitioned to complete settlement of the estate, Ruth C. Meyer, daughter and sole beneficiary under decedent\u2019s will, objected to the compensation allowed the personal representative and its attorney. After a hearing, the district court entered an amended order reducing the compensation for the personal representative and its attorney. This reduction came about as a result of calculating the United States Treasury notes under the second part of Section 45-3-719, that is, five percent of the first $5,000 and one percent of amounts in excess thereof. The net effect of the order reduced the personal representative\u2019s and its attorney\u2019s compensation by some $6,279 each. They appeal.\nThis appeal requires us to apply principles of statutory construction. We find the correct approach in 2A N. Singer, Sutherland Statutory Construction Section 47.07 (Sands 4th ed. 1984):\nA term whose statutory definition declares what it \u201cincludes\u201d is more susceptible to extension of meaning by construction than where the definition declares what a term \u201cmeans.\u201d It has been said \u201cthe word \u2018includes\u2019 is usually a term of enlargement, and not of limitation. * * * It, therefore, conveys the conclusion that there are other items includable, though not specifically enumerated.\n(Footnote omitted.) This rule has found support in other jurisdictions. Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 62 S.Ct. 1, 86 L.Ed. 65 (1941); Smyers v. Workers\u2019 Comp. Appeals Bd., 157 Cal.App.3d 36, 203 Cal.Rptr. 521 (1984); Schwab v. Ariyoshi, 58 Hawaii 25, 564 P.2d 135 (1977); Janssen v. Janssen, 331 N.W.2d 752 (Minn.1983).\nIn our case, the general word \u201ccash\u201d is followed by the word \u201cincluding,\u201d which is a word of expansion rather than of limitation. The terms following \u201cincluding\u201d are examples of cash. From Black\u2019s Law Dictionary 196 (5th ed. 1979), \u201ccash\u201d is defined as \u201c[m]oney or the equivalent.\u201d Applying the above principle, any item that falls within the definition of cash is subject to the reduced compensation scheme.\nAs provided in 31 U.S.C.A. \u00a7 3102 (1983):\n(a) With the approval of the President, the Secretary of the Treasury may borrow on the credit of the United States Government amounts necessary for expenditures authorized by law and may issue bonds of the Government for the amounts borrowed and may buy, redeem, and make refunds under section 3111 of this title.\nFurther, 31 U.S.C.A. \u00a7 3103 (1983) provides:\n(a) With the approval of the President, the Secretary of the Treasury may borrow on the credit of the United States Government amounts necessary for expenditures authorized by law and may issue notes of the Government for the amounts borrowed and may buy, redeem, and make refunds under section 3111 of this title.\nSection 3111 provides for the issuance of new obligations to buy, redeem, or refund outstanding obligations, i.e., \u201coutstanding bonds, notes, certificates of indebtedness, Treasury bills, or savings certificates of the United States Government.\u201d As we read these sections of Title 31, U.S.C.A., bonds and notes are issued for identical purposes and become obligations of the United States Government. We see no reason why Sections 45-3-719 and -720 do not encompass both United States Government bonds and United States Treasury notes within the meaning of \u201ccash.\u201d Each contemplates an obligation by the United States Government. Each appears to have a cash value to the holder, redeemable at a specified time. Each, therefore, is the equivalent of cash.\nThe result we reach accords with the purpose of the statute. The parties seem to agree that the reduced percentages for certain liquid assets were added by the legislature in response to In re Keel\u2019s Estate, 37 N.M. 569, 25 P.2d 806 (1933). Without legislative history we cannot be certain if this is correct; however, the plain meaning of the statute makes clear that the legislature intended a lesser fee on certain classes of personal assets that require little or no management. Why United States Treasury notes should be treated any differently from federal obligations issued for identical purposes is not clear, and appellant offers no explanation. We believe notes are sufficiently similar to bonds as to constitute \u201ccash\u201d for the purposes of the statute.\nThe personal representative and its attorney shall pay the cost of the appeal and those costs shall not be charged to the estate. See Manzanares v. Lerner\u2019s, Inc., 102 N.M. 391, 696 P.2d 479 (1985) (where appellate review in worker\u2019s compensation case was brought solely for the benefit of attorney, free process allowed by statute did not apply, and each party would pay their own costs).\nIT IS SO ORDERED.\nMINZNER and APODACA, JJ., concur.",
        "type": "majority",
        "author": "BIVINS, Judge."
      }
    ],
    "attorneys": [
      "Stephen Doerr, Doerr & Knudson, P.A., Portales, for plaintiff-appellant.",
      "Edwin B. Tatum, Walker, Tatum, Grow & McDowell, Clovis, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "742 P.2d 528\nIn the Matter of the ESTATE OF Elizabeth H. CORWIN, Deceased. MERCHANTS BANK AND TRUST COMPANY OF NORWALK, CONNECTICUT, A Connecticut Banking Corporation, Personal Representative, Plaintiff-Appellant, v. Ruth C. MEYER, Heir, Defendant-Appellee.\nNo. 9353.\nCourt of Appeals of New Mexico.\nJuly 14, 1987.\nCertiorari Denied Sept. 8, 1987.\nStephen Doerr, Doerr & Knudson, P.A., Portales, for plaintiff-appellant.\nEdwin B. Tatum, Walker, Tatum, Grow & McDowell, Clovis, for defendant-appellee."
  },
  "file_name": "0316-01",
  "first_page_order": 356,
  "last_page_order": 358
}