Calloway v. Miller

• Decision Date: 26 January 1954
• Docket Number: No. 5695,5695
• Citation: 1954 NMSC 14,58 N.M. 124,266 P.2d 365
• Parties: CALLOWAY v. MILLER et al.
• Court: New Mexico Supreme Court

Page 365

266 P.2d 365

58 N.M. 124

CALLOWAY v. MILLER et al.

No. 5695.

Supreme Court of New Mexico.

Jan. 26, 1954.

J. Benson Newell, Edward E. Triviz, Las Cruces, for appellants.

Johnston Jeffries, Aztec, Bert E. Newland, Deming, for appellee.

SEYMOUR, Justice.

Appeal is made from final judgment of the district court entered pursuant to verdicts of a jury on two issues, the first finding that testator lacked testamentary capacity, the second finding that testator was subjected to undue influence.

Appellant Robert L. Miller, executor of the estate of W. T. Calloway (deceased November 15, 1951), presented the alleged will of decedent to the probate court of Luna County and notice of hearing thereon was given. Prior to hearing, appellee Zella Calloway, decedent's cousin and a legatee under the purported will, filed her protest to the admission to probate, two of the stated grounds being those found in her favor by the verdicts of the jury. After hearing, the probate court entered its order approving the will and appointing as executor the appellant who was named as such in the will and who was a half-brother of decedent. Letters were issued and on June 21, 1952, appeal to the district court was taken by appellee--protestant. After certain amendments to the protest, the matter was tried before a jury with the result above stated.

Two of appellant's three points are based upon the ground that there was no substantial evidence from which the jury would determine the lack of testamentary capacity and the existence of undue influence as encompassed in the verdicts of the jury.

Appellant relies on one other point which will be considered first; it is as follows: Appellee protested the admission to probate pursuant to Sec. 32-210, 1941 Comp. This section provides for protest at the hearing in which the will is first offered for probate as distinguished from Sec. 32-212, 1941 Comp., providing for a contest at any time within six months after probate. The protest failed to include proper allegations of protestant's interest or capacity in the matter although sufficient actual interest existed. On hearing June 2, 1952, the probate court denied the protest and admitted the will to probate. Protestant appealed within days thereafter; on January 26, 1953, protestant filed a first amended protest in district court with proper allegations of interest. Proponent-appellant argues that this amendment introduced a new cause of action, thus initiating contest after probate pursuant to Sec. 32-212, supra; he further argues that this contest having been initiated by the amendment more than six months after the will was admitted to probate was barred by the six-month limitation contained in Sec. 32-212, supra.

In re Martinez' Will, 1942, 47 N.M. 6, 132 P.2d 422; In re Roeder's Estate, 1940, 44 N.M. 429, 103 P.2d 631; In re Riedlinger's Will, 1932, 37 N.M. 18, 16 P.2d 549; and Miera v. Akers, 1919, 25 N.M. 508, 184 P. 817, lead to the following conclusion: A protest prior to probate may be made pursuant to Sec. 32-210, supra, and whether successful or unsuccessful, appeal to the district court for trial de novo with a jury is available to both sides of the controversy. (It is immaterial in the instant case that under this statute trial de novo in district court is required in the event probate is refused.) The six-month limitation of Sec. 32-212, supra, which section provides for an independent, new action for contest after probate has no application to a proceeding such as that here involved, a protest filed prior to probate. Section 32-215, 1941 Comp., specifies the time within which appeal could be taken in this case from the decision of the probate court, and appeal was timely taken. Therefore, unless the amendment was such as to constitute a new, independent cause of action, thus requiring it to be a contest under Sec. 32-212, supra, the six-month limitation has no application here.

Turning to the question of the specific amendment here made, under Sec. 32-210, supra, we are dealing with a trial de novo in the district court. On trial de novo amendment of pleadings is permissible unless the cause of action or defense is changed. In re Pallister's Estate, 1944, 159 Kan. 7, 152 P.2d 61; 5 C.J.S., Appeal and Error, Sec. 1530(a)(b). The decision in Pointer v. Lewis, 1919, 25 N.M. 260, 181 P. 428, dealing with appeals from the justice of peace court is persuasive in this regard. The capacity of protestant to bring this action, i. e., her interest, is very different from her cause of action. Bancroft's Code Pleading Practice and Remedies, Vol. 1, Secs. 528, 532, pp. 278 and 280 respectively. Her cause of action was based upon the lack of testamentary capacity and on undue influence. This was not changed by the amendment. The great freedom of amendment allowed by our rules and the many recent decisions sustaining such freedom need no comment or citation. A case almost identical to the one before us is Jensen v. Hinderks, 1936, 338 Mo. 459, 92 S.W.2d 108. In that case a similar amendment was allowed even though the cause was thereby saved from a statute of limitations. Also see Early v. Burt, 1932, 134 Kan. 445, 7 P.2d 95. The contention of protestee-appellant on this first point must be denied.

In re Roeder's Estate, supra, is also helpful on this first point on the issue of appellee's interest as a contestant. Here, as in the Roeder case, the original petition in probate court named Zella Calloway as one of the 'heirs at law, legatees and devisees of the said deceased.'

Finally in connection with the first point, appellant argues that protestant failed to renounce under the will and that such renouncement is a prerequisite to protest. We find no merit in this point since, by the terms of the purported will, any person who objected to or contested the probate was cut off with the sum of $1. Under these circumstances, the filing of the protest was a sufficient renunciation.

Consideration of Points II and III requires a brief statement of facts. At the time of his death, decedent was approximately 88 years old. Throughout decedent's life everyone concerned in this case was 'family,' friendly and intimately concerned with each other's affairs. Decedent had participated in the run into Old Oklahoma in 1889 and located a homestead there; he was joined in Oklahoma by his half-brother, the appellant, in 1894, who spent several years with decedent. Zella Calloway, appellee, and her family also moved to Oklahoma in the early days. Subsequently, about 1905, the homestead was abandoned and decedent moved to the northern part of New Mexico, while appellant, after several years in northern New Mexico, settled in Deming. At the same time, appellee and her family came to San Juan County. All the testimony show that decedent was a careful, industrious farmer with a better than average business capacity and judgment, which resulted in his accumulation of considerable property. Various cousins, W. R. Calloway, Carl Calloway, Joe Calloway, Anna Calloway and Zella Calloway, the appellee, remained in Aztec, New Mexico and southern Colorado in the general neighborhood in which decedent lived. As decedent grew older, his health and strength declined and the cousins kept more and more closely in touch with him. During the early years in New Mexico the cousins would see decedent on holidays and perhaps once a month. In 1947 by reason of failing health, decedent went to live with appellee. From time to time he would go to Hot Springs for the baths and visit appellant in Deming. Subsequently, decedent lived for a period of time with his cousin W. R. Calloway in Tacoma, Colorado, which move was made with the knowledge of and after consultation with the appellant Miller. Apparently appellant and appellee jointly carried the responsibility of the welfare of decedent who had, in 1941, executed a will naming Robert Miller and Zella Calloway co-executors, by the terms of which will appellant was to receive 6/20ths of decedent's estate and appellee a 1/20th interest, the balance being divided among other various relatives. Appellee received no compensation during the period decedent lived in her home, a period of approximately six months, and at different times then and later, decedent made statements indicating that appellee would be remembered in his will. In the spring of 1950, appellant Miller visited in the northern part of the state and in southern Colorado and, with the knowledge and consent of everyone concerned, took decedent back with him to Deming, New Mexico, for a visit. Everyone concerned was conscious of the failing health of decedent, of his gradual loss of memory and of his weakening power of decision. Within a few weeks after decedent arrived in Deming, appellant wrote to appellee to the general effect that decedent wished to live permanently with him, his half-brother, in Deming and that, for the purpose of helping decedent, appellant was going to have various bank accounts moved to Deming...