{ "id": 2736011, "name": "Lucy G. McKENZIE, Individually and as Personal Representative and Executrix of the Last Will and Testament of Mervyn D. McKenzie, Dec'd, and Elsa Z. Gibbe, Individually, and as Personal Representative and Administratrix of the Estate of Juan Zehtner, Deceased, Plaintiff-Appellant, (Elsa Z. Gibbe), v. K. S. N. COMPANY, Inc., Diversified Mining, Inc., and Bill Werd, as Executor of the Last Will and Testament of Robert C. Kirchman, Defendants-Appellees", "name_abbreviation": "McKenzie v. K. S. N. Co.", "decision_date": "1968-06-21", "docket_number": "No. 134", "first_page": "314", "last_page": "317", "citations": [ { "type": "official", "cite": "79 N.M. 314" }, { "type": "parallel", "cite": "442 P.2d 804" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "94 A.L.R. 1437", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1934, "opinion_index": 0 }, { "cite": "174 A. 772", "category": "reporters:state_regional", "reporter": "A.", "year": 1934, "opinion_index": 0 }, { "cite": "87 N.H. 114", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4412150 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/nh/87/0114-01" ] }, { "cite": "37 N.M. 479", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575437 ], "weight": 2, "year": 1933, "opinion_index": 0, "case_paths": [ "/nm/37/0479-01" ] }, { "cite": "203 N.Y.S.2d 677", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "26 Misc.2d 898", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1078667 ], "opinion_index": 0, "case_paths": [ "/misc2d/26/0898-01" ] }, { "cite": "23 Minn.L.Rev. 221", "category": "journals:journal", "reporter": "Minn. L. Rev.", "opinion_index": 0 }, { "cite": "184 N.W. 43", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1921, "opinion_index": 0 }, { "cite": "149 Minn. 464", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 128111 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/minn/149/0464-01" ] }, { "cite": "245 S.W. 958", "category": "reporters:state_regional", "reporter": "S.W.", "case_ids": [ 10341333 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/sw/245/0958-01" ] }, { "cite": "244 N.W. 823", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1932, "opinion_index": 0 }, { "cite": "187 Minn. 228", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 1753358 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/minn/187/0228-01" ] }, { "cite": "146 P.2d 5", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1944, "opinion_index": 0 }, { "cite": "23 Cal.2d 676", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2207505 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/cal-2d/23/0676-01" ] }, { "cite": "206 Okl. 19", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 8892998 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/okla/206/0019-01" ] }, { "cite": "135 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574682 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0565-01" ] }, { "cite": "14 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "300 Mass. 95", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 864354 ], "opinion_index": 0, "case_paths": [ "/mass/300/0095-01" ] }, { "cite": "62 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2712439 ], "weight": 3, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/62/0383-01" ] }, { "cite": "63 N.M. 352", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2777122 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/63/0352-01" ] }, { "cite": "64 N.M. 374", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5344293 ], "weight": 3, "year": 1958, "opinion_index": 0, "case_paths": [ "/nm/64/0374-01" ] }, { "cite": "42 N.M. 337", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1569810 ], "weight": 2, "year": 1938, "opinion_index": 0, "case_paths": [ "/nm/42/0337-01" ] } ], "analysis": { "cardinality": 554, "char_count": 10350, "ocr_confidence": 0.644, "pagerank": { "raw": 6.823645209760889e-08, "percentile": 0.4164889536030865 }, "sha256": "24238aa772df6123ef26e5a69ae33fcee995672d7e9b2a88464fa16244e70aab", "simhash": "1:34a3a56c3c98ba2d", "word_count": 1710 }, "last_updated": "2023-07-14T18:21:18.946358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "OMAN and ARMIJO, JJ., concur." ], "parties": [ "Lucy G. McKENZIE, Individually and as Personal Representative and Executrix of the Last Will and Testament of Mervyn D. McKenzie, Dec\u2019d, and Elsa Z. Gibbe, Individually, and as Personal Representative and Administratrix of the Estate of Juan Zehtner, Deceased, Plaintiff-Appellant, (Elsa Z. Gibbe), v. K. S. N. COMPANY, Inc., Diversified Mining, Inc., and Bill Werd, as Executor of the Last Will and Testament of Robert C. Kirchman, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nThe issue is the authority of the probate court to grant letters of administration under that portion of \u00a7 31-1-3, N.M.S.A. >(1953) which reads:\n\u201c * * * if he died out of the state, having no mansion, house or place of abode, or lands within this state, letters \u25a0 may be granted in any county in which any personal estate of the deceased may be.\u201d\nDecedent, Juan Zehtner, had neither \u25a0mansion, house, place of abode nor lands in New Mexico. The only personal estate asserted is a cause of action for wrongful death. Under the facts of this case, the district court concluded that the probate \u2022court had no authority to issue letters of ' \u25a0administration in the Zehtner estate, and dismissed the complaint of Elsa Z. Gibbe, individually and as administratrix of the 'Zehtner estate. She appeals.\nDecedent Zehtner was an Austrian National permanently residing in Mexico. He was in an airplane\u2019crash in the State\u2019 \u25a0of Chihuahua, Mexico. The complaint alleges that Zehtner suffered injuries in the \u2022crash which resulted in his death; that the crash resulted from the negligence of defendants. The record does not show the place of the alleged negligence; we as\u25a0sume the alleged negligence occurred in' Mexico.\n\"Is the claim for wrongful death of a non-resident whose wrongful death occurred outside the state 'personal estate\u2019 sufficient for the issuance of letters of administration?\u2019\u2019\nTrujillo v. Prince, 42 N.M. 337, 78 P.2d 145 (1938) held that a New Mexico probate court had jurisdiction to appoint an -administrator to enforce a claim for the wrongful death of a reservation Indian whose death occurred in New Mexico but off the reservation. The New Mexico Supreme Court has also held that the right of indemnity under a liability insurance policy issued to a non-resident is sufficient to support the granting of administration upon the estate of the non-resident decedent whose act of alleged negligence occurred in this state. Kimbell v. Smith, 64 N.M. 374, 328 P.2d 942 (1958); In re Reilly\u2019s Estate, 63 N.M. 352, 319 P.2d 1069 (1957); Miller v. Stiff, 62 N.M. 383, 310 P.2d 1039 (1957). Miller states:\n\u201c* * * All that is n\u00e9c\u00e9ssary f'or the appointment is the mere allegation of ' a debtor in the state, for the truth of the alleg\u00e1tion can only be tried when thfe' alleged debtor, is a party. . 3\u2019 Beale,'\u00a1Conflict of Laws, \u00a7 467.3. The same rule is applied to any demand or right of claim. Gordon v. Shea, 1938, 300 Mass. 95, 14 N.E.2d 105, and authorities therein cited,\u201d (Emphasis added.) ,\nDefendant- would distinguish -the above cited New Mexico cases because, in each of. them the accident resulting in'death occurred in New Mexico . and,- here, the death occurred in Mexico.; This attempted distinction does not go' to. the jurisdiction of the probate \u25a0 court to issue letters, of administration. The probate court' has authority to issue letters-if there is.\u201cpersonal estate.\u201d The. claim for wrongful \u25a0 death is \u201cpersonal estate.\u201d The probate . court has authority to issue letters on the basis of that claim; the-fact that the accident occurred outside of New Mexico- does not deprive the probate court of jurisdiction to act on the claim which is before that court, and nothing in the record before us demonstrates that the probate court was without jurisdiction to issue letters.\nIn each of the following cases letters were validly issued although the accident resulting in the non-resident\u2019s death occurred outside of the state where the letters were issued. In re Scarborough, 261 N.C. 565, 135 S.E.2d 529 (1964) ; Fenton v. Sinclair Refining Co., 206 Okl. 19, 240 P.2d 748 (1952); In re Waits\u2019 Estate, 23 Cal.2d 676, 146 P.2d 5 (1944); Peterson v. Chicago B. & Q. Ry. Co., 187 Minn. 228, 244 N.W. 823 (1932) ; Lancaster & Wallace v. Sexton, 245 S.W. 958 (Tex.Civ.App.1922) ; State ex rel. Chicago B. & Q. R. Co. v. Probate Court, 149 Minn. 464, 184 N.W. 43 (1921).\nIs the claim within the county where the letters were issued?\nThe letters were issued by the probate court of Valencia County. Under \u00a7 31-1-3, supra, letters may be granted \u201cin any county in which any personal estate of the deceased may be.\u201d Is the claim for the wrongful death of Zehtner in Valencia County? If so, how did it get there?\nIn re Scarborough, supra, states:\n\u201cThe asset (right of action for wrongful death) has a situs in the county in which personal service can be had on the tort-feasor. * * * \u201d\nIn re Waits\u2019 Estate, supra, states:\n\u201c * * * An intangible, unlike real or tangible personal property, has no physical characteristics that would serve as a basis for assigning it to a particular locality. The location assigned to it depends on what action is to be taken with reference to it. It has therefore been widely held that a debt has its situs at the domicile of the debtor for purposes of administration, since it may be necessary to sue him there and to have an administrator appointed to bring suit. See 3 Beale, Conflict of Laws (1935), p. 1452; see 23 Minn.L.Rev. 221. By the same reasoning a debt will be regarded as an asset wherever the debtor is subject to suit. * * * \u201d\nSee In re Atychides\u2019 Estate, 26 Misc.2d 898, 203 N.Y.S.2d 677 (Surr.Ct.1960); Lancaster & Wallace v. Sexton, supra.\nThe claim for the wrongful death of Zehtner is in Valencia County if the defendants are subject to suit in that county. The sparse record does not permit an affirmative determination of whether the defendants are subject to suit in Valencia County; however, such an affirmative determination is not required.\nThe district .court sustained defendants\u2019 motion to dismiss on the basis that the probate court was without jurisdiction to issue letters of administration. The motion in district court was a collateral attack on the jurisdiction of the probate court. Unless lack of jurisdiction affirmatively appears, the probate action was not subject to collateral attack. Kimbell v. Smith, supra;. Miller v. Stiff, supra.\nSince it does not affirmatively appear that defendants were not subject to suit in Valencia County, the district court, in the collateral attack before it, could not properly conclude that the probate court was without jurisdiction on that basis.\nIs the sufficiency of the claim to he determined in the collateral attack?\nThe complaint alleges death resulting from a negligent act but does not allege on what basis the wrongful death claim is asserted. Specifically, we do not know whether the claim is based on the New Mexico wrongful death statutes or on the basis of Mexico law.\nDefendants, relying on Kandelin v. Lee Moor Contracting Co., 37 N.M. 479, 24 P.2d 731 (1933), contend that the claim is not based on Mexican law because Mexican law was not pleaded and has not been proved. Relying on Restatement, Conflict of Laws \u00a7 391 (1934) they assert there is no cause of action under New Mexico statutes, because the law of the place of the wrong (Mexico) governs the right of action for death. Thus, defendants argue that the probate court lacked authority to issue letters of administration because there is no basis for granting relief under the claim asserted.\nWe express no opinion as to whether foreign law is required to be pleaded and proved under our rules of civil procedure. See 2 Moore, Federal Practice, \u00a7 8.17(9) (2d ed. 1965). Kandelin v. Lee Moor Contracting Co., supra, was decided before our rules were in effect. Nor do we express an opinion as to whether the New Mexico wrongful death statutes can be applied where a non-resident death results from a negligent act occurring outside of New Mexico. These contentions go to the question of whether there is a basis for granting relief.\nDefendants\u2019 motion limited the issue before the district court. The issue was not whether there was a basis for granting relief; the issue was whether the probate court had authority to grant letters of administration. In deciding the question of the probate court\u2019s jurisdiction, the district court was not required to decide whether Gibbe had a basis for the claim asserted. Defendants\u2019 contentions may prove to be an insurmountable barrier to recovery; however, these contentions did not render the probate court powerless to appoint an administrator. In re Scarborough, supra; see In re Atychides\u2019 Estate, supra. While distinguishable on its facts, the following statement from Robinson v. Dana\u2019s Estate, 87 N.H. 114, 174 A. 772, 94 A.L.R. 1437 (1934) is appropriate:\n\u201c * * * Appointment or refusal to appoint does not depend upon the probable merits of the decedent\u2019s title or claim. It may be thought too doubtful to have appraisal value, but if any one having a proper interest deems it worth while to be asserted, an appointment should be made. The right to prosecute a claim having value if finally proved meritorious is in itself sufficient to meet the statutory test of estate.\u201d\nSee Fenton v. Sinclair Refining Co., supra.\nThe district court erred in concluding that the probate court did not have authority to issue Letters of Administration and in dismissing the complaint of Gibbe, as administratrix. The district court also dismissed the claim of Gibbe as an individual. No issue was presented concerning the dismissal of the individual claim.\nThe cause is remanded with instructions to set aside the order dismissing the claim of Gibbe as administratrix and to reinstate that portion of the complaint on the docket. No issue having been raised as to the dismissal of the claim of Gibbe as an individual, the order dismissing that claim remains in effect. Defendants are to pay the appellate costs.\nIt is so ordered.\nOMAN and ARMIJO, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Walter K. Martinez, Grants, for appellant.", "James T. Paulantis, Iden & Johnson, Albuquerque, John W. Reynolds, Robertson & Reynolds, Silver City, Bryant, Maxwell, Guilford & Sheahan, Los Angeles, Cal., for .appellee." ], "corrections": "", "head_matter": "442 P.2d 804\nLucy G. McKENZIE, Individually and as Personal Representative and Executrix of the Last Will and Testament of Mervyn D. McKenzie, Dec\u2019d, and Elsa Z. Gibbe, Individually, and as Personal Representative and Administratrix of the Estate of Juan Zehtner, Deceased, Plaintiff-Appellant, (Elsa Z. Gibbe), v. K. S. N. COMPANY, Inc., Diversified Mining, Inc., and Bill Werd, as Executor of the Last Will and Testament of Robert C. Kirchman, Defendants-Appellees.\nNo. 134.\nCourt of Appeals of New Mexico.\nJune 21, 1968.\nWalter K. Martinez, Grants, for appellant.\nJames T. Paulantis, Iden & Johnson, Albuquerque, John W. Reynolds, Robertson & Reynolds, Silver City, Bryant, Maxwell, Guilford & Sheahan, Los Angeles, Cal., for .appellee." }, "file_name": "0314-01", "first_page_order": 346, "last_page_order": 349 }