LAWS OF NEW MEXICO, 1955, CH. 20

CHAPTER 20

AN ACT RELATING TO THE POWER OF THE VETERANS' SERVICE COMMISSION TO ACT AS EXECUTOR, ADMINISTRATOR OR GUARDIAN; AMENDING SECTION 74-1-9, NEW MEXICO STATUTES ANNOTATED, 1953 COMPILATION, (BEING LAWS, 1927, CHAPTER 147, AS AMENDED BY THE ADDITION OF SUBJECT SECTION BY LAWS 1937, CHAPTER 87, SECTION 2).

SENATE BILL No. 35; APPROVED FEBRUARY 18, 1955

Be It Enacted by the Legislature of the State of New Mexico: Section 74-1-9, New Mexico Statutes Annotated, 1953 Compilation, (being Laws 1927, Chapter 147, as amended by the addition of subject section by Laws 1937, Chapter 87, Section 2) is amended to read as follows:

74-1-9. Power To Act as Executor, Administrator, or Guardian.-The New Mexico Veterans' Service Commission shall have the power and authority to act as executor under the last will, or as administrator of the estate of any deceased veteran, or as the guardian of the estate of any minor child of any veteran, or as the guardian of the estate of any insane or incompetent veteran, or as guardian of the estate of any person who is a bona fide resident of New Mexico and who is certified by the Veterans Administration as having money due from the Veterans Administration, the payment of which is dependent upon the appointment of a guardian for said person. No fee shall be allowed or paid to the commission for acting as such executor, administrator, or guardian.

When the commission is appointed executor in the last will of any veteran, the court or officer authorized to grant letters testamentary in this State shall, upon the proper application, grant letters testamentary thereon to such commission. When application is made to any court or officer having authority to grant letters of administration with the will annexed upon the estate of any veteran, or upon the estate of any deceased veteran who may have died intestate, and there is no person entitled to such letters who is qualified, competent, willing or able to accept such administration, such court or officer may, at the request of any party interested in the estate, grant letters of administration to the commission. Any court or officer having authority to grant letters of guardianship of any infant may, upon the same application as is required by law for the appointment of a guardian of such an infant appoint the commission as guardian of the estate of any infant who is the child of a veteran. Any court having jurisdiction to appoint a guardian of the estate of a lunatic, idiot, incompetent, or habitual drunkard may appoint the commission to be such guardian when such lunatic, idiot, incompetent or habitual drunkard is a veteran. Any court having jurisdiction over any person who is a resident of New Mexico, and who is certified by the Veterans Administration as having money due from the Veterans Administration, the payment of which is dependent upon the appointment of a guardian for said person, may appoint the commission to be such guardian.

Such court or officer may make orders respecting the commission as such executor, administrator, or guardian and require the commission to render all accounts which such court or officer might lawfully require if such executor, administrator, or guardian were a natural person.

NEW MEXICO STATS. 1941, ANNO., § 35–135

35-135. Accounts of guardians-Procedure when benefits received from United States veterans' bureau.-Every guardian shall render an account of his guardianship at the end of one [1] year from his appointment, and shall fully account for all moneys, effects and property of his ward that may come to his hands, and shall afterwards render annual accounts and make settlement of his guardianship from time to time as the court of probate may by order direct: Provided, that in those cases where the person under guardianship is in receipt of financial benefits from the U. S. veterans' bureau, the court shall take no action toward the allowance of any account tendered by the guardian of such person until thirty [30] days notice of the filing of such account shall have been afforded by the court to the U. S. veterans' bureau by which payments are being or have been made on behalf of such person, in order to permit the filing of any protest by such U. S. veterans' bureau against the allowance of the account so

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tendered. [Laws 1859-1860, p. 52; C. L. 1865, ch. 65, § 31; C. L. 1884, § 1021; C. L. 1897, § 1456; Code 1915, § 2575; Laws 1927, ch. 137, § 1, p. 376; C. S. 1929, § 62-122.]

Compiler's Note.

Section 30 of Comp. Laws 1865, ch. 65 is compiled as § 35-114.

Title of Act.

An act to amend section No. 2575 of the Code of 1915 relative to accounts of guardians. [Laws 1927, ch. 137.1

Amendment.

The 1927 amendment inserted the word "annual" before the word "accounts"; and added the proviso.

Cited:

In re Cuellar's Estate, 38 N. M. 518, 36 Pac. (2d) 526.

Collateral References.

Adjudication of account of guardian as prerequisite to remedy against third person in respect of property transferred to him in breach of trust. 132 A. L. R. 1353.

Advances or payments made from his own fund to ward, right of guardian to reimburse himself for. 115 A. L. R. 875.

Death of guardian as affecting right to compensation. 7 A. L. R. 1595.

Lapse of time after guardian's settlement as affecting his liability. 50 A. L. R. 61.

Rents and profits or use and occupation, duty of guardian who is also a cotenant to account for. 27 A. L. R. 233.

Right of guardian who promises to provide out of own estate for ward to allowance out of ward's estate. 56 A. L. R. 536.

Self-dealing, failure of guardian to disclose, as ground for vacating order or decree settling account. 132 A. L. R. 1522.

Settlement of annual or intermediate account of guardian, conclusiveness and effect of. 99 A. L. R. 996.

SECTION.

33-305. Appraisals.

ARTICLE 3-INVENTORY AND APPRAISAL OF ESTATES

33-305. Appraisals.-The commissioner of revenue shall upon the effective date of this act appoint two (2) resident property-owners in each county of this state as appraisers. The said appraisers shall serve at the pleasure of the commissioner of revenue and may be removed by him at any time. The commissioner of revenue shall file without cost in the office of the county clerk of each county the appointment of appraisers when made and thereafter shall file with said county clerk the removal of any of said appraisers and the appointment of other persons in their places. It shall be the duty of the appraisers so appointed to appraise all of the property of each estate administered in their respective counties at its full value at the time of decedent's death. The clerk of the county in which any estate is being administered shall immediately, upon the inventory of any estate being filed, send a copy thereof to each of said appraisers, who shall make an appraisal of all said property and return said appraisal under oath within ten (10) days to the court in which the estate is being administered, and the clerk of the court shall, immediately upon the filing of said appraisal, notify the administrator or executor of said estate of the filing of said appraisal; provided, however, that said appraisers shall not be required to make such return of appraisals until they have been compensated for their services as provided in this section. In the event any inventory shows property located in more than one (1) county of this state, the clerk shall send a copy of the inventory to the appraisers in each of said counties, and it shall be the duty of said appraisers to appraise the property located within their county and make return thereof as herein provided. If any appraiser is interested in any manner in any estate to be appraised or is unable for any reason to act, he shall immediately notify the commissioner of revenue, who shall appoint a substitute appraiser, and the substitute appointment shall be filed in the particular estate involved. Each appraiser shall receive compensation at the rate of $5.00 per day while necessarily engaged in the appraisal of any estate, but in no event to exceed $25.00. He shall also be paid necessary expenses incurred in the performance of his duties in an amount determined by the court in which the estate is being administered. The compensation and expenses of said appraisers shall be a part of the costs of administration and shall be paid out of said estate. The appraised value of the estate so determined shall be final unless appeal therefrom shall be taken by the bureau of revenue on behalf of the state of New Mexico, or by some other person interested in said estate. If the bureau of revenue, or any other person interested in said estate shall be dissatisfied with said appraisal, an appeal therefrom may be taken to the court in which said estate is pending within thirty (30) days from the date of the giving of notice by the clerk of

the court of the filing of such appraisal. The court shall within twenty (20) days from the date of such appraisal hear evidence and determine the correctness of said appraisal. If the determination is made by the probate court, the bureau of revenue, or any other person interested in the estate, may appeal therefrom to the district court of the county in which the probate court is situated within thirty (30) days from said determination. The bureau of revenue, or any other party interested in the estate may appeal to the Supreme Court from the decision of the district court with regard to the appraisal of estates within sixty (60) days after the determination thereby, and the procedure of such appeal shall be in accordance with the procedure in civil cases, or in accordance with rules promulgated by the Supreme Court of the state of New Mexico. In the event supplemental inventories are filed in any estate, the property shown therein shall be appraised in the same manner provided. Provided, however, when the estate consists of assets derived from direct payment from the United States Veteran's Administration or War Department of the United States and proof thereof having been satisfactorily made, such estate shall not be appraised. [Laws 1937, ch. 181, § 5, p. 471; 1941, ch. 164, § 1, p. 291; 1945, ch. 101, § 1, p. 155.]

Title of Act.

An act to amend section 33-305 of the New Mexico Statutes, 1941, Annotated, relating to the appraisal of decedents' estates. [Laws 1945, ch. 101.]

Amendment.

The 1945 amendment added the words "and the clerk of the court shall, immediately upon the filing of said appraisal, notify the administrator or executor of said estate of the filing of said appraisal" following the words "in which the estate is being administered" and the word "however" following the word "provided" in the fifth sentence of this section; substituted the words "giving of notice by the clerk of the court of the filing of such appraisal" for the words "return of the appraisers" at the end of the twelfth sentence, and added the last sentence to this section.

Opinions of Attorney-General.

The appraisement provided for herein may be dispensed with upon an order of the probate court. 1943-44, No. 4565.

Violation of this section by one of the appointed appraisers for an estate acting also as the administrator is not a misdemeanor, nor does such action vitiate the proceedings, though if steps are taken by an interested party in time, an appraiser could be removed when acting in such dual capacity. 1947-48, No. 5026.

NEW MEXICO STATS. ANNO (1951 POCKET SUPP), §§ 35-401-35.422

Copies of public records to be furnished.

35-417.

35-418.

35-419.

Discharge of guardian and release of sureties.

Commitment to Veterans Administration or other agency of United States government.

Liberal construction.

35-420. Short title.

35-401. Definitions.-As used in this act :

"Person" means an individual, a partnership, a corporation or an association. "Veterans Administration" means the Veterans Administration, its predeces

sors or successors.

"Income" means moneys received from the Veterans Administration and revenue or profit from any property wholly or partially acquired therewith.

"Estate" means income on hand and assets acquired partially or wholly with "income."

"Benefits" means all moneys paid or payable by the United States through the Veterans Administration.

"Administrator" means the administrator of veterans affairs of the United States or his successor.

"Ward" means a beneficiary of the Veterans Administration.

“Guardian” means any fiduciary for the person or estate of a ward. [Laws 1945, ch. 117, § 1, p. 192.]

Compiler's Note.

The section heading was part of the original act.

Title of Act.

An act concerning the guardianship of incompetent veterans, and other incompetent and minor beneficiaries of the Veterans Administration, and concerning commitment to the Veterans Administration or other agency of the United States of persons eligible for care or treatment and to make uniform the law with reference thereto, and declaring an emergency. [Laws 1945, ch. 117.]

Comparative Legislation. Uniform Veterans' Guardianship Act:

Ariz. Code 1939, §§ 42-301-42-320.

Ark. Laws 1943, Act 177.

Idaho. Sess. Laws 1943, ch. 39.

35-402. Administrator as party in interest. The administrator shall be a party in interest in any proceeding for the appointment or removal of a guardian or for the removal of the disability of minority or mental incapacity of a ward, and in any suit or other proceeding affecting in any manner the administration by the guardian of the estate of any person or former ward whose estate includes assets derived in whole or in part from benefits heretofore or hereafter paid by the Veterans Administration. Not less than 15 days prior to hearing in such matter, notice in writing of the time and place thereof shall be given by mail (unless waived in writing) to the office of the Veterans Administration having jurisdiction over the area in which any such suit or any such proceeding is pending. [Laws 1945, ch. 117, § 2, p. 192.]

Compiler's Note.

The section heading was part of the original act.

35-403. Application.-Whenever, pursuant to any law of the United States or regulation of the Veterans Administration, it is necessary, prior to payment of benefits, that a guardian be appointed, the appointment may be made in the manner hereinafter provided. [Laws 1945, ch. 117, § 3, p. 192.] Compiler's Note.

The section heading was part of the original act.

35-404. Limitation on number of wards.-No person other than a bank or trust company or the New Mexico Veterans Service Commission or public corporation shall be guardian of more than five [5] wards at one time, unless all the wards are members of one family. Upon presentation of a petition by an attorney of the Veterans Administration or other interested person, alleging that a guardian is acting in a fiduciary capacity for more than five [5] wards as herein provided and requesting his discharge for that reason, the court, upon proof substantiating the petition, shall require a final accounting forthwith from such guardian and shall discharge him from guardianships in excess of five [5] and forthwith appoint a successor. [Laws 1945, ch. 117, § 4, p. 192.] Compiler's Note.

The section heading was part of the original act.

35-405. Appointment of guardians.—(1) A petition for the appointment of a guardian may be filed by any relative or friend of the ward or by any person who is authorized by law to file such a petition. If there is no person so authorized, or if the person so authorized refuses or fails to file such a petition within thirty [30] days after mailing of notice by the Veterans Administration to the last known address of the person, if any, indicating the necessity for the same, a petition for appointment may be filed by any resident of this state.

(2) The petition for appointment shall set forth the name, age, place of residence of the ward, the name and place of residence of the nearest relative, if known, and the fact that the ward is entitled to receive benefits payable by

or through the Veterans Administration and shall set forth the amount of moneys then due and the amount of probably future payments.

(3) The petition shall also set forth the name and address of the person or institution, if any, having actual custody of the ward and the name, age, relationship, if any, occupation and address of the proposed guardian and if the nominee is a natural person, the number of wards for whom the nominee is presently acting as guardian. Notwithstanding any law as to priority of persons entitled to appointment, or the nomination in the petition, the court may appoint some other individual or a bank or trust company as guardian, if the court determines it is for the best interest of the ward.

(4) In the case of a mentally incompetent ward, the petition shall show that such ward has been rated incompetent by the Veterans Administration on examination in accordance with the laws and regulations governing the Veterans Administration. [Laws 1945, ch. 117, § 5, p. 192.]

Compiler's Note.

The section heading was part of the original act.

35-406. Evidence of necessity for guardian of infant.-Where a petition is filed for the appointment of a guardian for a minor, a certificate of the administrator or his authorized representative, setting forth the age of such minor as shown by the records of the Veterans Administration and the fact that the appointment of a guardian is a condition precedent to the payment of any moneys due the minor by the Veterans Administration shall be prima facie evidence of the necessity for such appointment. [Laws 1945, ch. 117, § 6, p. 192.]

Compiler's Note.

The section heading was part of the original act.

35-407. Evidence of necessity for guardian for incompetent.-Where a petition is filed for the appointment of a guardian for a mentally incompetent ward, a certificate of the administrator or his duty authorized representative, that such person has been rated incompetent by the Veterans Administration on examination in accordance with the laws and regulations governing such Veterans Administration and that the appointment of a guardian is a condition precedent to the payment of any moneys due such ward by the Veterans Administration, shall be prima facie evidence of the necessity for such appointment. [Laws 1945, ch. 117, § 7, p. 192.]

Compiler's Note.

The section heading was part of the original act.

35-408. Notice. Upon the filing of a petition for the appointment of a guardian under this act, notice shall be given to the ward, to such other persons, and in such manner as is provided by the general law of this state, and also to the Veterans Administration as provided by this act. [Laws 1945, ch. 117, § 8, p. 192.]

Compiler's Note.

The section heading was part of the original act.

The

35-409. Bond.-(1) Upon the appointment of a guardian, he shall execute and file a bond to be approved by the court in an amount not less than the estimated value of the personal estate and anticipated income of the ward during the ensuing year. The bond shall be in the form and be conditioned as required of guardians appointed under the general guardianship laws of this state. court may, from time to time, require the guardian to file an additional bond. (2) Where a bond is tendered by a guardian with personal sureties, there shall be at least two [2] such sureties, and they shall file with the court a certificate under oath which shall describe the property owned, both real and personal, and shall state that each is worth the sum named in the bond as the penalty thereof over and above all his debts and liabilities and the aggregate of other bonds on which he is principal or surety and exclusive of property exempt from execution. The court may require additional security or may require a corporate surety bond, the premium thereon to be paid from the ward's estate. [Laws 1945, ch. 117, § 9, p. 192.]

Compiler's Note.

The section heading was part of the original act.

35-410. Petitions and accounts, notices and hearings.-(1) Every guardian, who has received or shall receive on account of his ward any moneys or other thing of value from the Veterans Administration shall file with the court