Boddy v. Boddy

• Decision Date: 21 November 1966
• Docket Number: No. 7934,7934
• Citation: Boddy v. Boddy, 420 P.2d 301, 77 N.M. 149, 1966 NMSC 242 (N.M. 1966)
• Parties: Oscar A. BODDY, Waltman S. Boddy and Leo C. Yates, Appellants, v. Ora Lee BODDY, Appellee.
• Court: New Mexico Supreme Court

Page 301

420 P.2d 301

77 N.M. 149

Oscar A. BODDY, Waltman S. Boddy and Leo C. Yates Appellants, v. Ora Lee BODDY, Appellee.

No. 7934.

Supreme Court of New Mexico.

Nov. 21, 1966.

Rueckhaus & Brown, Melvyn D. Baron, Albuquerque, for appellants.

Charles F. Barnhart, Albuquerque, William I. Buhler, Truth or Consequences, for appellee.

OPINION

NOBLE, Justice.

The intestate heirs of Ben B. Boddy have appealed from a judgment of the district court admitting to probate an instrument purporting to be his last will and testament.

The instrument, as executed February 28, 1963, made nominal bequests to two brothers, and left the rest and residue of decedent's estate, consisting of his separate property, to Ora Lee Boddy, the decedent's wife. The court found that thereafter Ben B. Boddy and Ora Lee Boddy were divorced March 3, 1964, and did not remarry. The record also shows a property settlement agreement between the Boddys approved by the court in the divorce proceeding. Following the divorce, on March 9, 1964, the testator printed the word 'void' in letters varying from one to three inches in height in three places across the first page and again across the second page of the twopage again across the second page of the two-page B. Boddy, March 9, 1964' written once on each page thereof following the words 'void.' These markings were superimposed on all typewritten paragraphs of the will excepting the attestation clause, paragraph number four, which made the devise to Ora Lee Boddy, and paragraph number five which named an attorney to represent the executor. The trial court found that the signature and date 'March 9, 1964' were written across the instrument by the testator contemporaneously with the markings 'void.'

Appellants urge reversal of the judgment admitting the will to probate upon the grounds that (1) the trial court erred in concluding as a matter of law that § 30--1--8, N.M.S.A.1953, provides the exclusive method of revoking a will; and (2) the divorce and property settlement revoked the will by operation of law. Our disposition of the first point makes it unnecessary to consider the second.

Section 30--1--8, N.M.S.A.1953, was enacted as § 1, ch. 59, Laws 1891, and has not been amended. It reads:

'Any will may be revoked by the testator by an instrument in writing, executed and attested in the same manner as is required by law for the execution and attestation of a will, by which instrument the marker distinctly refers to such will and declares that he revokes it; or such will may be revoked by the making of a subsequent valid will disposing of the same property covered by the first will, although no reference be made in the later will to the existence of the earlier one.'

The trial court's conclusions of law:

'1. That the makings placed on the testator's will on March 9, 1964, did not effect a revocation of the will and the same is now the last will and testament of BEN B. BODDY, deceased.

'2. That markings of 'void,' the lines, the signatures and dates placed on the will on March 9, 1964, were not executed and attested as required by Section 30--1--8, N.M.S.A. (1953 Comp.).

'* * *

'5. That the will of BEN B. BODDY, deceased dated February 28, 1963, is entitled to be admitted to probate without regard to the markings placed thereon in March, 1964, by the Testator(,)'

make it appearent that the decision and judgment resulted from the court's impression that the statute provides the exclusive method of revoking a will. In this the trial court erred.

The proponents of the will rely strongly upon the oft-repeated rule that where statutes regulate the method of revocation, they are mandatory and controlling so that revocation may be accomplished only in the manner prescribed by such statutes. See Albuquerque National Bank v. Johnson, 74 N.M. 69, 390 P.2d 657. However true this statement may be, our statute only purports to regulate revocation by a subsequent instrument in writing. Two other methods, speaking in generic terms, by which a will may be revoked are left untouched. These methods are, namely, revocation by physical act performed or inflicted on the face of the will, including burning, cancelling, tearing, obliterating or destroying; and revocation by operation of law. See Page on Wills, § 21.1. This court has recognized both. In re Roeder's Estate, 44 N.M. 578, 106 P.2d 847; Teopfer v. Kaeufer, 12 N.M. 372, 78 P. 53, 67 A.L.R. 315; Brown v. Heller, 30 N.M. 1, 227 P. 594, all acknowledge revocation by operation of law. And Perschbacher v. Moseley, 75 N.M. 252, 403 P.2d 693, impliedly recognized destruction as a means of revocation.

Prior to the English Statute of Frauds and the Statute of Victoria, any act or declaration of a testator which showed an intention to revoke was effective to accomplish that purpose. The Statute of Frauds was enacted to prevent abuses in attempts to defeat valid wills, but it expressly permitted revocation thereof by 'burning, cancelling, tearing or obliterating' the instrument with intent to revoke it, as well as by a subsequent testamentary instrument. Section 22, ch. 3 of 29 Car. II (1677). New Mexico adopted the common law or lex non scripta and such British statutes of a general nature not local to that kingdom nor in conflict with our Constitution or specific contrary statutes, which are applicable to our conditions and circumstances and which were in force at the time of American separation from England, and made it binding as the rule of practice and decision in the courts of this State. Sec. 21--3--3, N.M.S.A.1953. The Statute of Frauds is part of this common law. Ades v. Supreme Lodge Order of Ahepa, 51 N.M. 164, 181 P.2d 161; Maljamar Oil & Gas Corp. v. Malco Refineries, 155 F.2d 673 (10th Cir.1946); Ickes v. Brimhall, 4o N.M. 412, 79 P.2d 942; Sellman v. Haddock, 62 N.M. 391, 310 P.2d 1045.

Thus, were it not for § 30--1--8, supra, it is clear a will could be revoked by burning, cancelling, tearing, obliterating, or destroying the will if done with the requisite revoking intent. The question becomes, then, is § 30--1--8, N.M.S.A.1953, a specific contrary statute abrogating these common law methods of revocation? We believe not. Section 30--1--8 addresses itself only to revocation by subsequent written instrument. To hold that it nonetheless pre-empts a revocation by operation of law or revocation by physical act performed on the face of the will would be contrary to our prior holdings and notions of justice and common sense. We hold, therefore, that § 30--1--8 is mandatory only in that it governs the manner by which a will may be revoked by a subsequent written instrument. A will may also be revoked by the common law methods of burning, cancelling, tearing, obliterating or destroying.

Albuquerque National Bank v. Johnson, supra, demands no different result. That decision discussed the Statutes of Frauds and Victoria, and said that since the enactment of those statutes a prior will may be revoked 'by a subsequent testamentary instrument' in only the two ways provided by § 30--1--8. Johnson, by its express language, was limited to an attempted revocation by a subsequent testamentary instrument, and expressed no opinion as to the validity of revocation by other means permitted by the common law after the enactment of the Statute of Frauds.

We have thus determined...