Matter of Estate of Kerouac

966 P.2d 191, 126 N.M. 24
CourtNew Mexico Court of Appeals
DecidedOctober 28, 1998
Docket18,495
StatusPublished
Cited by2 cases

This text of 966 P.2d 191 (Matter of Estate of Kerouac) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Estate of Kerouac, 966 P.2d 191, 126 N.M. 24 (N.M. Ct. App. 1998).

Opinion

966 P.2d 191 (1998)
126 N.M. 24
1998-NMCA-159

In the Matter of the ESTATE OF Jan Michelle KEROUAC, deceased.
Gerald NICOSIA as Literary Personal Representative, Appellant,
v.
John LASH as General Personal Representative, Appellee.

No. 18,495.

Court of Appeals of New Mexico.

September 11, 1998.
Certiorari Granted October 28, 1998.

*192 Jerome N. Field, Jerome N. Field, Inc., San Francisco, CA, John S. Campbell, Wiggins, Campbell & Wells, P.A., Albuquerque, NM, for appellant.

Rodney L. Schlagel, Sherrill K. Filter, Emily A. Franke, Butt, Thornton & Baehr, P.C., Albuquerque, NM, for appellee.

OPINION

WECHSLER, J.

{1} This case poses the issue of interpreting the first codicil to a will to determine whether the general personal representative or the literary personal representative of the estate of Jan Michele Kerouac (Decedent) has the authority to make decisions regarding pending litigation involving a separate will contest at the time of Decedent's death. As part of an informal probate proceeding, the district court entered an order interpreting the first codicil determining that the general personal representative holds the authority to make decisions regarding the pending litigation, but authorized a stay pending appeal by the literary personal representative. For the reasons discussed below, we affirm the district court's decision.

Facts

{2} Decedent died in June 1996 in New Mexico. Her will contained a first codicil executed on June 28, 1995, replacing the paragraphs discussing the role of the personal representative in her will executed in January 1994 and otherwise adopting the will. The first codicil states in pertinent part:

SEVENTH: I appoint JOHN LASH as General Executor of this Will for all purposes save those concerning any rights that I now possess or may hereafter possess in any literary works or literary archival materials, including but not limited to any literary works or literary materials of my father, JACK KEROUAC, and my own literary works and materials, including but not limited to Baby Driver and Train Song. As to these literary works and materials, I appoint GERALD NICOSIA as Literary Executor. In his capacity as Literary Executor, he shall make all decisions regarding the appropriate publication, republication, sale, license or any other exploitation of any nature of any intellectual property rights I have in any literary works or materials. He shall do these things with due regard to fostering economic return without devaluing or cheapening the literary works or any intellectual property rights flowing therefrom, or in any way reflecting negatively on me, my father, or my heirs or beneficiaries. In return for his services as Literary Executor, GERALD NICOSIA shall receive as compensation 10% (ten-percent) of any income generated by any publications, sales or other licensing arrangements that he has negotiated, payable to him at receipt of any such income by the estate. Such 10% shall be paid directly by the publisher, purchaser or licensee to the Literary Executor whenever possible. In the event of the predecease of JOHN LASH or in the event that he is unable for any reason or declines to act as General Executor as defined herein, then I nominate and appoint MAXINE BOWERS. my sister-in-law, as General Executrix of this Will, with the same power, rights, discretions, obligations and immunities. No bond shall be required of any Executor appointed in this Will; none of the Executors nominated in this Will shall be personally liable for any loss or damage in connection with the administration of my estate, except in the case of willful misconduct or gross negligence.
....
EIGHTH: I authorize my General Executor to sell at either public or private sale, with or without notice, any non-literary property belonging to my estate and to *193 invest any surplus monies subject only to any confirmation required by law.

{3} At the time of her early death, Decedent was involved in a will contest regarding the probate of her grandmother's will in Florida. Decedent was the daughter of the late author Jack Kerouac, and his second wife, Joan Haverty. When Jack died in 1969, his third wife, Stella Sampas, took a dower's share (one-third interest) and his mother, Gabrielle Kerouac, received the remaining two-thirds of his estate. When Gabrielle passed away in 1973 in Florida, the terms of her will left all of Jack's personal property to Sampas. Sampas died in Florida in 1990 leaving her property, including the property she received from Gabrielle's estate, to her relatives.

{4} Decedent did not receive notice of either of these probate proceedings. After she learned of Gabrielle's will, she commenced an action in Florida state court on May 16, 1994, seeking to revoke the probate of Gabrielle's will alleging that the will was a forgery. This action had not been resolved at the time of Decedent's death and is still pending. If Gabrielle's will is determined to have been a forgery, Decedent's estate and Paul Blake Jr., Gabrielle's other grandchild, or his heirs, would inherit the estate through intestacy. The estate includes certain rights to some of Jack Kerouac's literary works. After Decedent's death, John Lash, acting as the general personal representative of Decedent's estate, reached an agreement with the heirs of Sampas to confidentially settle and dismiss the litigation involving Gabrielle's will.

{5} During a status conference before the Florida court, Gerald Nicosia, the acting literary personal representative, opposed dismissal of the litigation. The judge expressed concerns about the respective authority of the general personal representative and the literary personal representative. The Florida court subsequently entered an order staying the litigation before it, pending a determination by the New Mexico state courts as to the authority of each representative.

{6} The general personal representative then filed a motion in New Mexico state court to interpret the codicil and determine his authority as the general personal representative. Following briefing and a hearing, the district court entered an order granting the general personal representative the authority to control the litigation in Florida. The literary personal representative appeals from this order.

Discussion

{7} Despite the apparent complexity of the litigation, the issue to be resolved in this case is straightforward—whether the interpretation of Decedent's first codicil authorizes the general personal representative or the literary personal representative to make decisions regarding the Florida litigation.

{8} Initially, we note that while the will and codicil use the term "executor," our Uniform Probate Code recognizes the term "personal representative," but also includes "executor" in its definition. See NMSA 1978, § 45-1-201(A)(34) (1995). Since New Mexico uses the term "personal representative," we will use that term in our discussion. Additionally, the Uniform Probate Code does not expressly provide for the appointment of a literary personal representative, see NMSA 1978, §§ 45-3-701 to -721 (1975, as amended through 1995), and no New Mexico case law exists recognizing a literary personal representative.

{9} However, we liberally construe the Uniform Probate Code to meet its policies, which include effectuating the intent of the decedent. See NMSA 1978, § 45-1-102 (1975); see also In re Estate of Romero, 115 N.M.

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Bluebook (online)
966 P.2d 191, 126 N.M. 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-estate-of-kerouac-nmctapp-1998.