{ "id": 1559217, "name": "In re MIERA'S GUARDIANSHIP", "name_abbreviation": "In re Miera's Guardianship", "decision_date": "1934-03-05", "docket_number": "No. 3887", "first_page": "377", "last_page": "383", "citations": [ { "type": "official", "cite": "38 N.M. 377" }, { "type": "parallel", "cite": "34 P.2d 299" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "32 N. M. 431", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1553033 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/32/0431-01" ] }, { "cite": "32 N. M. 431", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1553033 ], "opinion_index": 1, "case_paths": [ "/nm/32/0431-01" ] } ], "analysis": { "cardinality": 724, "char_count": 14001, "ocr_confidence": 0.496, "pagerank": { "raw": 7.747644260677764e-08, "percentile": 0.45539971635411947 }, "sha256": "e851336142568fcd3a9ec97680b24b314926c97ea13e70de8ed72329a8f6df58", "simhash": "1:b4d7a67087c03de5", "word_count": 2360 }, "last_updated": "2023-07-14T22:29:00.087305+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SADLER, HUDSPETH, BIOKLEV, and ZINN, JJ., concur.", "SADLER, HUDSPETH, and BICKLEY, JJ., concur.", "ZINN, J., did not participate." ], "parties": [ "In re MIERA\u2019S GUARDIANSHIP." ], "opinions": [ { "text": "WATSON, Chief Justice.\nThis is an appeal by Frank T. Hines, administrator of Veterans\u2019 Affairs, and First Savings Bank & Trust Company of Albuquerque, guardian, from an order of the district court, on appeal from the probate court, approving the final account of Francisquita V. Lopez, predecessor of said trust company, as guardian of the estate of Juanita T. Miera, an insane person, and discharging said former guardian and her sureties from liability.\nAppellants here urge that there was error in the order, since the final account on its face shows illegal acts of the guardian, shows a shortage in an unascertained sum, and shows negligence in failure to collect principal and interest of loans illegally made.\nAppellees contend that the record before us presents no question for review.\nThe transcript is made up for the most part of the proceedings in the probate court. Additional to those, we have only the findings and conclusions of the district judge, the order appealed from, and the application for, and allowance of, the appeal.\nThere being no bill of exceptions, there can be no question of fact before us. The findings are conclusive.\nThere are no specific exceptions to the judgment. However, formal exceptions are not required, and we may and should here review any question of law on which a ruling was fairly invoked below. N. M. App. Proc. Rule XII, \u00a7 1.\nThe objections to the final account, in the main and as here urged, go to certain loans made to J. V. Quintana, Bail\u00f3n Lopez, and Margarito Lopez, aggregating $5,000, and secured by mortgages. They are charged to have been made \u201ccontrary to law,\u201d to be past due, and, as to the Quintana loans, to be in default as to interest, and the guardian is said not to have shown by her final account or otherwise that she has taken all necessary steps to collect. Therefore, it is claimed, there is a possible loss in an unascertained amount standing in the way of a discharge of appellees.\nInterpreting the findings in the light-of the objections, it appears that there was no prior court order authorizing these loans, which were made in 1926, but that the Veterans\u2019 Bureau knew of the fact at once, seeing to it that the-mortgages were properly recorded; that the guardian thereafter submitted annual accountings to the probate court disclosing these loans and their conuxtion, all made upon the form provided by the Veterans\u2019 Bureau, all approved by the probate court, on the request and recommendation of the Veterans\u2019 Bureau, whereby it \u201cwaives all objections and exceptions to the report of Mrs. Francisquita V. Lopez\u2019 accounting herein and recommends to the court the approval of the same\u201d; that, the estate consists entirely of government benefactions to the ward, as a soldier\u2019s widow; that the guardian is the mother of the ward, is elderly and illiterate, and has at all times in administering the trust acted under the direction and instructions of the bureau\u2019s regional office and officials, as they have well known; that she has acted in good faith in making the loans; and that .there is nothing to show what, if any, loss will result, the present guardian (which had qualified thirteen months before this hearing) having failed to take any steps to foreclose the questioned mortgages.\nOn these findings the learned trial judge concluded that the subsequent repeated approval of the loans was equivalent to their original authorization; and that the Veterans\u2019 Bureau could not be heard now to object to their validity, after its repeated approvals and waivers.\nWe cannot doubt that these rulings were fairly invoked by the very nature of the'case, and by what may be termed the pleadings, being the final account itself and the objections thereto. By the final account Mrs. Lopez demanded to be absolved by turning over to her successor certain past-due mortgages, as to two of which interest was in arrears. The objection of the Veterans\u2019 Bureau, the donor of the trust, was that the mortgages, being unauthorized, were made at the guardian\u2019s risk, and that she could not be absolved until possible liability should be determined. The case is not substantially distinguishable from King v. Doherty, 32 N. M. 431, 258 P. 569.\nWe have then before us the single question of law just stated.\nThe matter is somewhat complicated by a remarkable disregard of controlling statutes in this proceeding. The whole guardianship has been carried on under authority of and in the probate court. The present guardian, successor to Mrs. Lopez, and appellant here, claims authority only from that court. It seems, however, that the jurisdiction of the probate courts extends only to guardianship of minors and idiots. Comp. St. 1929, c. 62. This ward was thirty-one years of age when she became insane and was committed to the state asylum. The district courts have long possessed the jurisdiction in the case of adjudged lunatics and habitual drunkards \u201cto make such orders touching * * * the management and safe keeping of the estate * * * as it shall think necessary and proper.\u201d Comp. St. 1929, \u00a7 85-110, Repealed by Laws 1933, c. 76.\nAppellees seem to concede the proposition of appellants that a guardian, after obtaining the ward\u2019s money by virtue of an appointment, cannot question the validity of \u2022the appointment or the jurisdiction'of the appointing court But they do contend that Oomp. St 1929, \u00a7 62-119, on which appellants in part rely in claiming that the loans were unlawfully made, is not applicable. We think the contention must be sustained.\nThe further contention that \u201cthere is clearly no statute requiring the guardian to obtain the approval of the probate court to her investments\u201d is literally correct. We think, however, that Comp. St. 1929, \u00a7 85-121, repealed by Laws 1933, c. 76, must be deemed controlling of the guardian\u2019s liability. Though that section contemplates a guardianship authorized in the district court, the mistake of applying to the wrong court cannot change the fact that it is a lunatic\u2019s estate that is here \u2022 involved. We think that the guardian must account according to the liability imposed by statute upon the guardians or committees of lunatics.\nSection 85-121 provides: \u201cIt shall be lawful for the committee aforesaid, under the direction of the court, to invest the money of said lunatic or habitual drunkard in such manner as shall be approved by the court, and if the investment be bona fide made the committee shall not be liable for any loss that may arise thereby.\u201d (Repealed by Laws 1933, c. 76.)\nUnder this statute can appellants maintain their contention that an investment is necessarily unlawful and at the guardian\u2019s risk absolute, merely because made without previous court authority?\nClearly she is not liable for loss if she made the investments in good faith, as the court finds she did, and \u201cunder direction of the \u2022court\u201d and \u201cin such manner as shall be approved by the court.\u201d\nIt is the theory of the decision below that the several approvals of annual reports bring the guardian, as to these investments, within the protection of this statute. Appellants, contending contra, point to the differences between periodical and final reports or accounts, as well stated in 12 R. C. L. \u201cGuardian and Ward,\u201d \u00a7 46; and cite this text and .a number of decisions to the proposition that approval of an annual report is not conclu; sive against the ward, though approval of a final report is.\nAssuming this to be sound, it does not go far enough. The text cited states: \u201cThey (approved annual reports) are prima facie evidence of the state of the account, but are subject to re-examination in settling later accounts.\u201d\nAnother text says: \u201cBut annual or partial accounts are at least prima facie evidence of their correctness, if made in conformity with the statutory requirements, by a regularly appointed guardian, and, although their correctness may be rebutted, the burden is on the party attacking the settlement to show error therein.\u201d 28 C. J. \u201cGuardian and Ward,\u201d \u00a7 411.\nIf such be the applicable rule, appellants cannot successfully maintain that they have made a case by objecting merely to the lack of specific previous authorization. The burden was on them to overcome the prima facie evidence that these investments were legitimate, to show that,, having been approved, they were made in bad faith, and possibly also to show a resulting loss to the estate. They are concluded here by the findings that the investments were approved and made in good faith.\nIn cases like this we think there is good reason for applying this rule, even if it be not the better generally. Where the estate is the accumulation of \u201cfinancial benefits from the U. S. Veterans\u2019 Bureau,\u201d it cannot be said that these periodical accountings are \u201cintended (merely) to inform the judge and also interested parties of the status and general conduct of the guardianship\u201d ; that they are \u201cusually accepted and filed ex parte and without a hearing,\u201d or that \u201cthe ward, who is the party in adverse interest, is legally and usually actually incapable of protecting his own interests, and the one whom the law charges with the duty of asserting and protecting his rights, is in this matter the adverse party.\u201d Since 1927 at least, the Veterans\u2019 Bureau has had the status of an interested party. Its manifest duty is to protect the rights of the ward and scrutinize the acts of the guardian. It may \u201cprotest\u201d any account, and no account can be approved until after notice to it and an opportunity to protest. Comp. St. 1929, \u00a7 85-124, repealed by Laws 1933, c. 76.\nThe larger reasons for the original distinction being thus removed, it might be urged that the approval should be as conclusive in the case of the periodical or occasional accounting as in the ease of the final report. We need not and do not now so hold.. It is sufficient to hold, as we do, that such approval is at least prima facie evidence of a correct accounting.\nSo concluding, we are spared the necessity of considering the further question whether the Veterans\u2019 Bureau was or could be estopped, as the learned trial judge considered it to have been.\nBinding no error in the order appealed from, it will be affirmed, and the cause remanded. It is so ordered.\nSADLER, HUDSPETH, BIOKLEV, and ZINN, JJ., concur.", "type": "majority", "author": "WATSON, Chief Justice." }, { "text": "On Rehearing.\nWATSON, Chief Justice.\nBy the motion for rehearing our attention was directed to Comp. St. 1929, \u00a7 34-412, a statute not theretofore mentioned by either counsel. It is there written that: \u201cProbate courts shall have exclusive original jurisdiction in * * * the appointment and removal of guardians of * * * persons of unsound mind.\u201d\nThis provision on its face appears inconsistent with our holding that the jurisdiction actually resided in the district court. Accordingly, a rehearing was granted.\nThe section mentioned is traceable to the Kearney Code, \u201cCourts and Judicial Powers,\u201d section 21, C. L. 1897, p. 71. There also are found certain related provisions under the title \u201cGuardians.\u201d C. L. 1897, pp. 80, 81. One or two of those still survive. Comp. St. 1929, \u00a7\u00a7 62-131, 62-132.\nJurisdiction was given to the district courts in the matter of lunatics by L. 1855-56, c. 38, which, without much change, appears now as Comp. St. 1929, \u00a7\u00a7 85-101 to 85-129. The repeal in 1933 is immaterial here. Of course, the jurisdiction of the probate court was no longer exclusive after the enactment of that statute.\nWe not only overlooked the statute mentioned, but we failed to note that Comp. St. 1929, c. 62, in its original form, applied to insane persons as well as to minors and idiots. L. 1859-60, p. 52, \u00a7 26. The section will be found in this form in all revisions and compilations until the revision of 1915, when the words \u201cinsane .persons\u201d were dropped. Code 1915, \u00a7 2577. In view of that fact we must hold that it was a matter of concurrent jurisdiction, at least from 1859-60 to 1915.\nPerhaps the reason for dropping these words was to give to the district court, which alone could make an adjudication of lunacy, exclusive jurisdiction to deal with the estates of lunatics. Unfortunately, if such was the purpose, the Legislature fell short of making it perfectly manifest by failing to change that statute which conferred the jurisdiction on probate courts in express and certain language.\nIn view of the inconclusiveness of the legislative action and of the very general exercise of the jurisdiction which has persisted, we have reached the conclusion that we erred in saying that \u201cthe jurisdiction of the probate courts extends only to the guardianship of minors and idiots.\u201d\nThis is simply by way of correction. It does not affect the result in this case. The striking of the words \u201cinsane persons\u201d in the revision of 1915 is not deemed to have been wholly ineffective. From that time, chapter 62 became inapplicable to insane persons or lunatics, and has since been, as we originally said, applicable only to minors and idiots. The jurisdiction of the probate court rests, not upon the fact that it once had jurisdiction under chapter 62, but that at all times the jurisdiction has existed by virtue of the clear and express language of section 34-412. Having the jurisdiction, and chapter 62 being inapplicable, the probate courts, when they exercise the jurisdiction, as well as the district courts, must look to the law of \u201clunatics and drunkards\u201d (Comp. St. 1929, c. 85), not to the law of \u201cguardian and ward\u201d (Id. chapter 62), for the procedure and incidents of the jurisdiction.\nWe were therefore right in holding that the guardian\u2019s accountability is governed by Comp. St. 1929, \u00a7 85-121, not by Id. \u00a7 62-119, And so we adhere to our original disposition of the cause.\nSADLER, HUDSPETH, and BICKLEY, JJ., concur.\nZINN, J., did not participate.", "type": "rehearing", "author": "WATSON, Chief Justice." } ], "attorneys": [ "William F. Cheek and Alfred B. Helm, both of Albuquerque, for appellant.", "J. O. Seth, of Santa F\u00e9, for appellee." ], "corrections": "", "head_matter": "34 P.(2d) 299\nIn re MIERA\u2019S GUARDIANSHIP.\nNo. 3887.\nSupreme Court of New Mexico.\nMarch 5, 1934.\nOn Rehearing July 16, 1934.\nWilliam F. Cheek and Alfred B. Helm, both of Albuquerque, for appellant.\nJ. O. Seth, of Santa F\u00e9, for appellee." }, "file_name": "0377-01", "first_page_order": 413, "last_page_order": 419 }