{
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  "name": "In the Matter of the Last Will and Testament of Hazel Cash FERRILL, Deceased: Lyle E. TEUTSCH, Jr., Petitioner, v. Don CASH, Respondent",
  "name_abbreviation": "Teutsch v. Cash",
  "decision_date": "1983-03-22",
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  "casebody": {
    "judges": [
      "SOSA, Senior Justice, and STOWERS, J., concur.",
      "PAYNE, J., respectfully dissenting.",
      "FEDERICI, J., not participating."
    ],
    "parties": [
      "In the Matter of the Last Will and Testament of Hazel Cash FERRILL, Deceased: Lyle E. TEUTSCH, Jr., Petitioner, v. Don CASH, Respondent"
    ],
    "opinions": [
      {
        "text": "OPINION\nRIORDAN, Justice.\nLyle Teutsch (Teutsch), special administrator for the will of Hazel Cash Ferrill (Ferrill), petitioned the trial court for an allowance of attorney\u2019s fees in excess of the statutory amount. The trial court denied the request for excess attorney\u2019s fees as did the Court of Appeals. Certiorari was granted. We reverse.\nThe issue on appeal is whether a special administrator who hires an attorney to defend a contested will, is entitled to have attorney\u2019s fees and costs paid out of the estate.\nFerrill died on December 18,1979, leaving an estate of over $800,000.00. On January 11, 1980, the personal representative named in the will, renounced his appointment and nominated Teutsch to be the personal representative. Teutsch filed a petition to be appointed personal representative. On January 16, 1980, the trial court appointed Teutsch as special administrator. Teutsch was never appointed personal representative.\nOn February 15, 1980, Ferrill\u2019s grandson, and on April 9, 1980, Ferrill\u2019s son filed objections to probating Ferrill\u2019s will. Teutsch retained an attorney to defend the will and to aid him in his capacity as special administrator. After the will contest, the jury declared the will invalid because of undue influence. In In Matter of Ferrill, 97 N.M. 383, 640 P.2d 489 (Ct.App.1981), cert. quashed, 98 N.M. 51, 644 P.2d 1040 (1982), the trial court\u2019s decision was upheld.\nTeutsch petitioned the trial court to award attorney\u2019s fees in excess of the statutory amount set forth in Sections 45-3-719 and 45-3-720, N.M.S.A.1978, for defending Ferrill\u2019s will. Teutsch also asked for costs. The parties stipulated to the reasonableness of the amount of attorney\u2019s fees and costs relating to the special administration and the will contest. The trial court approved attorney\u2019s fees of $6,480.00 and costs of $458.43 that related to the special administration and ordered that they be paid out of the estate. However, the trial court concluded that Teutsch, as special administrator, could not obligate the estate for the additional attorney\u2019s fees of $24,388.50 and costs of $2,183.02, incurred in defending the will. On appeal, the Court of Appeals upheld the trial court\u2019s ruling because there is no duty expressed by statute for a special administrator or personal representative to defend a will. We reverse the Court of Appeals ruling.\nOn January 16, 1980, the trial court in appointing Teutsch, as special administrator, stated that he was, \u201cto preserve the estate and to secure its proper administration until such time as general personal representative is appointed by the Court. * * * \u201d The general powers and duties of a special administrator appointed by order of the court, are contained in Section 45-3-617, N.M.S.A.1978, which states:\nA special administrator appointed by order of the district court in any formal proceeding has the power of a general personal representative except as limited in the appointment and duties as prescribed in the order. The appointment may be for a specified time, or to perform particular acts or on other terms as the district court may direct.\nTeutsch correctly points out that the definition of a personal representative includes a special administrator. \u00a7 45-l-201(A)(29), N.M.S.A.1978. Teutsch also contends that a personal representative has a duty to defend a will relying on Section 45-2-902(A), N.M.S.A.1978, which states, \u201c[a]ny person having custody of a will, shall, as soon as he is informed of the death .. . deliver such will to a person able to secure its probate [Emphasis added].\u201d Therefore, he further contends that if such a duty is undertaken in good faith, then attorney\u2019s fees and costs incurred in defending the will are properly payable out of the estate, pursuant to Section 45-3-720, which provides that:\nAttorneys for personal representatives of decedents\u2019 estates shall be allowed out of such estates, as fees for representing such personal representatives in the conducting of ordinary probate proceedings.\nWe agree with both of Teutsch\u2019s contentions.\nNew Mexico case law has not previously addressed the question of whether there is a duty for a personal representative to defend a will. Nor is there a section contained in the New Mexico Probate Code, Sections 45-1-101 through 45-7-401, N.M.S.A.1978 (Orig.Pamp. and Cum.Supp.1982), that addresses this duty. However, other states have held that it is the duty of an executor to offer a will for probate and to make all reasonable efforts to sustain its validity when contested. In re Swanson\u2019s Estate, 240 Iowa 1011, 38 N.W.2d 652 (1949); In re Wah-Kon-Tah-He-Ump-Ah\u2019s Estate, 128 Okla. 179, 261 P. 973 (1927); Ex Parte Miller, 192 S.C. 164, 5 S.E.2d 865 (1939). And as long as there is a good faith attempt by the personal representative to defend the will, attorney\u2019s fees are allowed whether the will is upheld or not. Mitchell v. Parker, 227 Ala. 676, 151 So. 842 (1933); Ex Parte Miller, supra; Smith v. Haire, 133 Tenn. 343, 181 S.W. 161 (1915).\nThe trial court concluded that Teutsch acted \u201cin good faith and reasonable prudence in hiring the law firm * * * to represent him in his duty of securing the probate of said will.\u201d We have held that where a case is tried and the trial court makes findings of facts and conclusions of law, we will not reverse unless the findings cannot be sustained by evidence or inferences. Barber\u2019s Super Markets, Inc. v. Stryker, 84 N.M. 181, 500 P.2d 1304 (Ct.App.), cert. denied, 84 N.M. 180, 500 P.2d 1303 (1972). We find that there is evidence to support that Teutsch acted in good faith in probating Ferrill\u2019s estate.\nTherefore, since Teutsch had been appointed as special administrator and no personal representative had been appointed, he was under a duty to \u201csecure\u201d probate of Ferrill\u2019s will. Although the will was found invalid, Teutsch still had the duty to defend it. In re Wah-Kon-Tah-He-Ump-Ah\u2019s Estate, supra. Since the trial court found that Teutsch acted in good faith in \u201csecuring\u201d the probate of the will, attorney\u2019s fees and costs are recoverable.\nThe Court of Appeals and trial court are reversed. The case is remanded with directions to approve the request for attorney\u2019s fees and costs for the will contest.\nIT IS SO ORDERED.\nSOSA, Senior Justice, and STOWERS, J., concur.\nPAYNE, J., respectfully dissenting.\nFEDERICI, J., not participating.",
        "type": "majority",
        "author": "RIORDAN, Justice."
      }
    ],
    "attorneys": [
      "Kegel, Montez & Piat, Ralph M. Montez, Santa Fe, for petitioner.",
      "Popejoy & Leach, Thomas L. Popejoy, Jr., Richard E. Ransom, Albuquerque, for respondent."
    ],
    "corrections": "",
    "head_matter": "660 P.2d 593\nIn the Matter of the Last Will and Testament of Hazel Cash FERRILL, Deceased: Lyle E. TEUTSCH, Jr., Petitioner, v. Don CASH, Respondent\nNo. 14447.\nSupreme Court of New Mexico.\nMarch 22, 1983.\nSee also 97 N.M. 383, 640 P.2d 489; 98 N.M. 51, 644 P.2d 1040.\nKegel, Montez & Piat, Ralph M. Montez, Santa Fe, for petitioner.\nPopejoy & Leach, Thomas L. Popejoy, Jr., Richard E. Ransom, Albuquerque, for respondent."
  },
  "file_name": "0503-01",
  "first_page_order": 535,
  "last_page_order": 537
}