Estate of Kimble, Matter of

• Citation: 1994 NMCA 28,871 P.2d 22,117 N.M. 258
• Decision Date: 08 February 1994
• Docket Number: No. 14437,14437
• Parties: In the Matter of the ESTATE OF Lola KIMBLE, Deceased. Corea McKAY, Contestant-Appellant, v. O.C. KIMBLE, Proponent-Appellee.
• Court: Court of Appeals of New Mexico

Page 22

871 P.2d 22

117 N.M. 258

In the Matter of the ESTATE OF Lola KIMBLE, Deceased.

Corea McKAY, Contestant-Appellant, v. O.C. KIMBLE, Proponent-Appellee.

No. 14437.

Court of Appeals of New Mexico.

Feb. 8, 1994.

Robert O. Beck, Beck & Cooper, Lawyers, Clayton, for contestant-appellant.

Gary D. Alsup, Alsup Law Office, Clayton, for proponent-appellee.

OPINION

BLACK, Judge.

Corea McKay (Contestant) challenges the validity of a will of her deceased sister, Lola Kimble (Decedent). On appeal, Contestant argues that the district court: (1) erred in directing a verdict on the issue of due execution; (2) erred in directing a verdict on the issue of testamentary intent; (3) abused its discretion in holding that the issue of mistake had not been properly raised; and (4) abused its discretion in limiting closing argument on these issues. We affirm.

I. FACTS

Decedent moved to Union County about 1936. She married Roy Kimble in 1938, and they remained married until his death in 1972. When Decedent married Roy Kimble in 1938, O.C. Kimble, Roy Kimble's son, was twenty-three and living on his own. However, O.C. Kimble had relatively frequent contact with Decedent. Decedent's family, on the other hand, had relatively few contacts with her after she left Oklahoma in the 1930's, and those contacts diminished over the years. The last time Decedent made a trip to Oklahoma to visit her family was in 1972. Contestant made overnight visits to Decedent's residence on only one or two occasions after 1972.

Decedent died February 19, 1992. A will dated January 13, 1986, was tendered for probate by the personal representative, O.C. Kimble (Proponent), Decedent's stepson. Under that will Proponent would receive Decedent's entire estate. An objection and counter petition was filed by Contestant.

The will proffered by Proponent is on two sheets of paper. The signatures of the attesting witnesses appear on the second sheet and are dated "1-13-86." The witnesses to the execution of the proffered will were W.L. Gibbs and J.H. Jackson, Jr. Gibbs is the president and chairman of the board of the Farmers and Stockmens Bank of Clayton and has been president of that institution since 1974. Jackson is a member of the board of the same bank and has been the senior vice president of that institution since 1974. Both attesting witnesses testified that they had known Decedent for more than twenty years; that on January 13, 1986, they were greeted by Decedent in her home; that Decedent told them she had asked them to come there to witness her will; that Decedent appeared alert and oriented in all respects and knew who they were, who she was, and what she was doing. Both witnesses also testified they saw her sign both pages of the document tendered for probate by Proponent; that Decedent was behaving in a normal and rational manner on the day she executed her will; that they had no doubt in their minds that the will tendered for probate by Proponent was the document they saw Decedent execute January 13, 1986; that the will was executed in their presence and in the presence and sight of each other; and that Decedent told them that the document was her will.

There was evidence that at the time of execution of the will Decedent was 92 years old and in a state of mental and physical decline. A physician testified that by 1988 Decedent suffered from Alzheimer's, senile dementia, or a combination of the two.

The first page of the proffered will contains a typographical error. ("Heretofore" was misspelled.) The date on the first page has been whited out and changed to read, "this 13 day of January, 1986." Both witnesses indicated that at the time they saw Decedent sign, there were two pages, but they did not see any white-out on the first page. The first page of the will stops approximately two inches above the bottom of the page, and the last line of the attestation clause and the witnesses' signatures appear on a second page.

The case went to trial before a Union County jury in October 1992. Contestant raised the objections of lack of due execution, lack of testamentary intent, lack of capacity, and undue influence. Proponent moved for a directed verdict on all issues at the end of the Contestant's case and again at the conclusion of all the evidence. The district court directed a verdict on the issues of due execution and testamentary intent. The district court also held that mistake had not been raised in the pleadings or tried by consent and refused the instructions that Contestant tendered on the issue of mistake. The jury found in favor of Proponent.

II. STANDARD OF REVIEW

Directed verdicts are not favored and should only be granted when a jury could not logically and reasonably reach any other conclusion. Western States Mechanical Contractors, Inc. v. Sandia Corp., 110 N.M. 676, 679, 798 P.2d 1062, 1065 (Ct.App.), cert. denied, 110 N.M. 653, 798 P.2d 1039 (1990). However, it is fundamental that evidence must be adduced to support all issues of fact essential to the maintenance of an enforceable claim. C.E. Alexander & Sons v. DEC Int'l, Inc., 112 N.M. 89, 93, 811 P.2d 899, 903 (1991). If the evidence fails to present or support an issue essential to the legal sufficiency of the asserted claim, the right to a jury trial disappears. Id. Whether there exists sufficient evidence to support a claim or defense is a question of law for the trial court, reviewable by the appellate court. Sunwest Bank, N.A. v. Garrett, 113 N.M. 112, 115, 823 P.2d 912, 915 (1992).

III. DUE EXECUTION

The will at issue contains an attestation clause in the following form:

The foregoing instrument, consisting of two typewritten pages, was signed, published and declared by the Testatrix to be her Last Will and Testament in the presence of us, who at her request, in her presence, and in the presence of each other, have hereunto subscribed our names as witnesses.

While not in the form which would create a conclusive presumption pursuant to NMSA 1978, Section 45-3-406 (Repl.Pamp.1983), the above attestation clause is sufficient to create a rebuttable presumption of due execution of the will. See In re Estate of Padilla, 97 N.M. 508, 510-11, 641 P.2d 539, 541-42 (Ct.App.1982); see also NMSA 1978, Sec. 45-2-504 (Repl.Pamp.1993) (dictating required language).

In formal testacy proceedings, proponents of the will have the burden of establishing prima facie proof of due execution. NMSA 1978, Sec. 45-3-407 (Repl.Pamp.1993). The proponent, therefore, must introduce evidence the will was signed by the testator, in the presence of two or more credible witnesses, who must have signed in the presence of the testator and each other. NMSA 1978, Sec. 45-2-502 (Repl.Pamp.1993). In the present case, Proponent introduced evidence to this effect and, the evidence was sufficient to establish prima facie proof.

Contestant argues that the evidence regarding the execution of the proffered will was conflicting and that the district court therefore erred in directing the verdict. Contestant would support her argument by pointing to "suspicious circumstances" such as the obvious white-out and the witnesses' testimony that they did not remember such white-out at the time they attested the will.

Contestant failed to produce any evidence, however, as to why these facts are significant, especially since both witnesses testified that they saw Decedent sign both pages of the will in their presence. Where the only evidence is that the will was signed by testator and attested by the witnesses on the same date, the fact the will was misdated is immaterial. Miller v. Mitchell, 224 Ark. 585, 275 S.W.2d 3, 5-6 (1955); see also McIntire v. McIntire, 162 U.S. 383, 396, 16 S.Ct. 814, 819, 40 L.Ed. 1009 (1896) (decedent's alteration of date did not materially modify or abrogate the will). But see In re Estate of Campbell, 47 Wash.2d 610, 288 P.2d 852, 855 (1955) (erasures and possible alterations as to year of execution of will deemed material where suspicious circumstances were evident each time date appeared in will and question whether will at issue was latest will that existed).

Contestant next argues that a suspicious circumstance exists arising from the fact that Decedent signed the will in two places on the first page, yet the witnesses failed to initial that page. While it is good practice to have witnesses initial the pages they do not sign, Thomas E. Atkinson, Handbook of the Law of Wills Sec. 74, at 350 (2d ed. 1953), it is more significant here that Decedent signed both pages. Moreover, as legal scholars have repeatedly pointed out, the requirement of additional formalities in the attestation of wills is unlikely to provide any safeguard against the substitution of fraudulent documents. Atkinson, supra, Sec. 72, at 340; 2 William J. Bowe & Douglas H. Parker, Page on the Law of Wills Sec. 19.120, at 231-32 (rev. treatise 1960); Ashbel G. Gulliver & Catherine J. Tilson, Classification of Gratuitous Transfers, 51 Yale L.J. 1, 10-11 (1941).

The final suspicious circumstance alleged by Contestant is the "large unfilled space" following a portion of the attestation clause on the first page. (Including the signature of Decedent at the bottom of the page, the space on the first page of the proffered will is less than two inches.) Contestant argues this space was sufficient to allow the addition of the last line of the attestation clause, as well as the signatures of both witnesses, so that the entire will would have appeared on one page.

Under the English Wills Act, it was required that the testator sign at the end or foot of the will. Thomas J. Goger, Annotation, Wills: When is Will Signed at "End" or "Foot" as Required by Statute, 44 A.L.R.3d 701, 706 (1972). The purpose was to prevent fraudulent additions. Atkinson, supra, Sec. 64, at 304-05. Our version of the Uniform Probate Code, however, contains no such requirement, see Section 45-2-502, and even under the Wills Act and its...