C. De Baca v. Baca

• Decision Date: 13 January 1964
• Docket Number: No. 7321,7321
• Parties: Fidelia Tafoya C. de BACA, Contestant-Appellant, v. Eufracio BACA, Executor of the Last Will and Testament of Eloisa T. Gallegos, Deceased, Contestee-Appellee.
• Court: New Mexico Supreme Court

Page 392

388 P.2d 392

73 N.M. 387

Fidelia Tafoya C. de BACA, Contestant-Appellant, v. Eufracio BACA, Executor of the Last Will and Testament of

Eloisa T. Gallegos, Deceased, Contestee-Appellee.

No. 7321.

Supreme Court of New Mexico.

Jan. 13, 1964.

Joe L. Martinez, Edward J. Apodaca, William G. Fitzpatrick, Albuquerque, for appellant.

Robertson & Robertson, Raton, for appellee.

MOISE, Justice.

On January 19, 1961, the district court of Harding County, sitting as a probate court, entered an order admitting the will of Eloisa T. Gallegos, deceased, to probate, and naming the petitioner for probate, Eufracio Baca, as executor. The executor qualified on the same day. By the terms of the will so admitted to probate, Gertrude Tafoya, a sister of decedent, was sole beneficiary.

On July 17, 1961, a petition to set aside the probate of the will was filed by Fidelia Tafoya C. de Baca, also a sister of decedent, hereinafter referred to as 'contestant.'

On August 1, 1961, contestant filed an affidavit of disqualification of the resident district judge pursuant to Sec. 21-5-8, N.M.S.A.1953. In an 'Order Striking Affidavit' entered September 25, 1961, it is recited that the affidavit of disqualification be stricken pursuant to stipulation between counsel for petitioner for probate and counsel for contestant.

On October 5, 1961, the executor, purporting to appear specially, moved to dismiss contestant's petition because of the time that had passed since the will was admitted to probate without issuance of citation or service thereof on the executor or on Gertrude Tafoya, the sole devisee and legatee named in the will, as required by Sec. 30-2-14, N.M.S.A.1953. It was claimed that Gertrude Tafoya was an indispensable party, and that the court was without jurisdiction to proceed in the cause without her and the executor being present. On January 23, 1962, again purporting to appear specially, the executor filed a supplemental motion to dismiss, pointing out that more than twelve months had passed since the will was admitted to probate; that more than six months had passed since the 'Petition to Set Aside Probate' had been filed; that no citation as required by Sec. 30-2-14, N.M.S.A.1953, had been issued or served; that Gertrude Tafoya had died; that accordingly, the court was without jurisdiction of the subject matter; that the contest must be deemed abandoned; that the court had no jurisdiction over the person of the executor or over the deceased beneficiary claimed to be an indispensable party, and accordingly had no jurisdiction to proceed.

On February 2, 1962, the resident Judge recused himself, but on February 13, 1962, vacated the order of recusal 'upon application by the executor, and with the consent of counsel for the contestant, Fidelia Tafoya C. de Baca.' He thereupon recused himself insofar as any matters arising in the contest were concerned but specifically retained jurisdiction over the general administration of the estate. On February 20, 1962, Honorable E. T. Hensley, Jr., Judge of the Ninth Judicial District, was designated to hear and determine all matters relating to the contest.

After contestant and executor had filed their requested findings and conclusions, on July 23, 1962, the court made its findings of fact and conclusions of law in the case and the cause was dismissed. The dismissal was based on the failure to issue or have issued citation or other process to the executors, devisees and legatees of the will, as required by Sec. 30-2-14, N.M.S.A.1953, and the court's conclusion that it therefore lacked jurisdiction over the subject matter, over the person of the executor, or over the person of Gertrude Tafoya, or her personal representative. This appeal followed.

As her first point, contestant asserts that the court was in error in its findings and conclusions that the failure to sue out and serve citation upon the executor and the sole beneficiary named in the will, or her personal representative, divested the court of jurisdiction over the contest proceedings, over the executor and over the sole beneficiary or her personal representative.

The controlling statutes are:

'30-2-13. When a will has been approved, any person interested may at any time within six months after such probate, contest the same or the validity of the will. For that purpose he shall file in the court in which the will was proved, a petition in writing, containing his allegations against the validity of the will or against the sufficiency of the proof, and praying that the probate may be revoked.'

'30-2-14. Upon filing of the petition of contest a citation shall be issued forthwith to the executor, and to all devisees and legatees named in the will residing in the state, or to their guardians if any of them are minors, or their personal representatives if any of them are dead, requiring them to appear before the court within thirty days from service of said citation, to show cause why the probate of said will should not be revoked. Service of such citation shall be had in the same manner as service of summons in civil cases; Provided, however, that if service shall not be made within six months from the date of the issuance of said citation said contest shall be deemed to have been abandoned and said contest shall be by the court dismissed.'

'30-2-21. If no person shall, within six months after the probate, contest the same, or the validity of the will, or if on such contest the will is sustained, the probate of the will shall have the same effect as a final decree in chancery.'

30-2-14, supra, also was adopted as a rule of civil procedure. Sec. 21-1-1(4)(s), N.M.S.A.1953.

We embark upon our consideration of the problems here presented by noting that there was no right to contest a will at common law and that the right to do so exists by virtue of the statutes quoted above which being in derogation of common law must be strictly construed. In re Martinez' Will, 47 N.M. 6, 132 P.2d 422; Stitt v. Cox, 52 N.M. 24, 190 P.2d 434.

Contestant's argument under her point 1 is to the effect that the court having obtained jurisdiction of the contest through the timely filing of her petition to set aside probate, her failure to have citation issued or served as provided in Sec. 30-2-14, N.M.S.A.1953, did not divest the court of jurisdiction nor otherwise bar it from proceeding with the cause.

She asserts that the proceeding is in rem and that the presence of parties is not required, or at least is not jurisdictional. In support of this position she cites In re Towndrow's Will, 47 N.M. 173, 138 P.2d 1001. An examination of that case discloses that the opinion states that proceedings for probate of a will are in rem, comparable to proceedings to prove testaments in the 'common form' under the practice of English Ecclesiastical Courts, which proceeded ex parte and without notice to interested persons. The court at the same time noted that will contests in England were handled in 'solemn form,' where the surviving spouse or next of kin of the deceased to whom the property would descend if intestacy resulted were required to be present. Also, In re Roeder's Estate, 44 N.M. 429, 103 P.2d 631, was cited. That case held that a proceeding to prove a will is in rem, and then noting Sec. 30-2-13, supra, stated that a proceeding to prove a will was 'less formal than the proceeding authorized for contest of a will after probate.' Whether or not the proceeding to contest is likewise in rem, it is not necessary for us to decide. The cases relied on do not support the contestant's position.

That the lower court obtained jurisdiction of the subject matter with the timely filing of the petition to revoke probate, we think is obvious from a reading of the plain language of Sec. 30-2-13, supra. California, with a provision to contest similar to ours, has held jurisdiction of the court attaches when the petition inaugurating the contest is filed. In re Logan's Estate, 171 Cal. 357, 153 P. 388, 390. To like effect is Merrill v. District Court of Fifth Judicial Dist., 73 Wyo. 58, 272 P.2d 597, 599, under a comparable statute. The fact that the trial court was in error in its conclusion that it did not have jurisdiction of the subject matter, however, is not determinative of this appeal. Merrill v. District Court of Fifth Judicial Dist., supra, points out that no jurisdiction is obtained of parties to a will contest unless citation is issued and served on them. Los Angeles First Nat. Trust & Sav. Bank v. Superior Court, 94 Cal.App. 79, 270 P. 710; In re Logan's Estate, supra; and In re Simmons' Estate, 168 Cal. 390, 143 P. 697, are cited as authority. These decisions all support a conclusion that excusable failure to promptly issue citation may be remedied when the court in its discretion determines the action should not be dismissed for such cause. We quote from In re Logan's Estate, supra:

'* * * The jurisdiction of the court to entertain a proceeding for the revocation of the will does not depend upon the issuance and service of a citation within a year after the probate of the will. Jurisdiction of the court attaches on the filing of the petition inaugurating the contest. The office of the citation is only that of a summons--to give the court jurisdiction of the parties who would be affected by its revocation. It is not essential to the jurisdiction of the court that the citation be issued and served within a year. The only penalty for failure to have it issued within that time is that the court may dismiss the contest. And even where there has been a failure to have it issued within the year the court may nevertheless relieve a contestant for his failure to do so and thereupon order a citation issued and served. Estate of Simmons, 168 Cal. 390, 143 Pac. 697. * * *'

However, it does not appear that the statute either in Wyoming or in California provided that the citation issue 'forthwith,' but rather that it 'must' be issued 'upon...