Galvan v. Miller
| Decision Date | 26 August 1968 |
| Docket Number | No. 8307,8307 |
| Citation | 445 P.2d 961,79 N.M. 540,1968 NMSC 139 |
| Parties | Joe H. GALVAN, Guardian ad litem for Carolyn Wright Garner, a minor, Appellant, v. Ira B. MILLER, Iva Lucille Miller, Executrix of the Last Will and Testament of Yule N. Miller, Deceased, Ulric F. Miller, Elger E. Miller, and Joetyne M. Wright, Appellees. Joetyne M. WRIGHT, Appellant, v. Ira B. MILLER, Iva Lucille Miller, Executrix of the Last Will and Testament of Yule N. Miller, Deceased, Ulric F. Miller, Elger E. Miller and Joe H. Galvan, Guardian ad litem for Carolyn Wright Garner, a minor, Appellees. E. E. MILLER, Appellant, v. Ira B. MILLER, Ulric F. Miller, and Iva Lucille Miller, Executrix of the Last Will and Testament of Yule N. Miller, Deceased, Appellees. Iva Lucille MILLER, Executrix of the Last Will and Testament of Yule N. Miller, Deceased, Cross-Appellant, v. Elger E. MILLER, Joetyne M. Wright, Carolyn Wright Garner, Joe H. Galvan, Guardian ad litem for Carolyn Wright Garner, a minor, and Ulric F. Miller, Cross-Appellees. |
| Court | New Mexico Supreme Court |
Suit was brought in the district court of Lincoln County consolidating two will contests in the matter of the last will and testament of Fountain Alexander Miller, deceased. The cause was tried to the court without a jury and judgment was entered setting aside a judgment of the probate court, which had admitted the 1952 will of F. A. Miller to probate, and admitting instead the 1946 will of F. A. Miller to probate as a prior valid will. Legatees of the 1952 will appeal, and the representative of a legatee of a 1938 will cross-appeals.
F. A. Miller had four children and heirs, to-wit: Appellant Elger E. Miller; appellees Ira B. Miller and Ulric F. Miller; and Yule N. Miller, whose widow, Iva Lucille Miller as executrix of his estate, is cross-appellant. Other parties to this action are appellant Joetyne M. Wright, the daughter of Elger E. Miller; and appellant Joe H. Galvan, guardian ad litem for Carolyn Wright Garner, a minor, the daughter of Joetyne M. Wright.
After F. A. Miller's death on April 11, 1965, in Lincoln County, Ira B. Miller and Yule M. Miller, as sons and heirs-at-law of F. A. Miller, on August 13, 1965, filed in the district court of Lincoln County a petition in probate No. 37, alleging that in 1936 Alice Miller, the deceased wife of F. A. Miller, and F. A. Miller, for consideration, executed joint and mutual wills, and claimed that these became irrevocable upon the death of Alice Miller. The terms thereof were set forth. It was alleged that the joint will of F. A. Miller had become lost or destroyed and that its whereabouts was unknown, although a diligent search had been made. Petitioners prayed that this will be admitted to probate as the last will and testament of F. A. Miller. In a second cause of action, petitioners alleged that a will of March 10, 1938, devised and bequeathed F. A. Miller's property substantially in accordance with his agreement with Alice Miller and prayed that, if the first will should not be admitted to probate, the 1938 will should be. Petitioners also asked that, if it should be determined there was no valid joint will and F. A. Miller had the right to revoke the will of 1938, then a will dated December 16, 1946, should be admitted to probate. If the court were not to comply with the prayers of the first three causes of action, it was asked that the estate of F. A. Miller be probated in accordance with the law of intestacy. E. E. Miller responded to the petition; denied that F. A. Miller and Alice Miller had agreed to execute and had executed joint and mutual wills; admitted that F. A. Miller had executed a will in 1938, but denied that the heirs-at-law, the devisees and legatees thereunder were those alleged by the petition of the proponents to so be; admitted that F. A. Miller had executed a will in 1946, but denied that the heirs-at-law, devisees and legatees thereunder were those alleged by the proponents in their petition to so be; and moved that the court dismiss with prejudice all four of petitioners' causes of action.
On October 1, 1965, cause No. 1111 in the probate court of Lincoln County was docketed in the district court of Lincoln County as probate No. 39. It included a petition filed by E. E. Miller in the probate court on April 26, 1965, seeking the admission to probate of a will executed by F. A. Miller dated April 1, 1952. Also included in this cause docketed in the district court was a petition filed by Ira Miller and Yule Miller in the probate court on August 20, 1965, in which petition it was alleged that the 1952 will was invalid and void for the following reasons: (a) That it violated the 1936 agreement between F. A. Miller and his deceased wife regarding the making of joint and mutual wills; (b) that it was not freely and voluntarily made or executed, in that its execution was procured by fraud and undue influence practiced upon F. A. Miller by E. E. Miller and Joetyne M. Wright, acting individually or in concert, and that as a result of such conduct E. E. Miller and Joetyne M. Wright became the principal beneficiaries under the will; (c) that the signature on the will was obtained through duress practiced upon F. A. Miller by E. E. Miller and Joetyne M. Wright; and (d) that at the time of its execution, F. A. Miller was legally incompetent to make or execute a valid will. E. E. Miller responded, denying these allegations. On August 23, 1965, the probate court admitted the 1952 will to probate. The admission of this will was appealed to the district court of Lincoln County and, for purposes of convenience, probate Nos. 37 and 39 were consolidated for trial on the merits in the district court.
On July 27, 1966, the judgment of the district court was filed overruling the probate court's admission of the 1952 will on the grounds that the execution of the will had been procured through the fraud and undue influence of E. E. Miller. The court admitted the 1946 will to probate.
The trial court found, inter alia, the existence of a confidential and fiduciary relationship between F. A. Miller and his son E. E. Miller at the time the 1952 will was drawn, and more particularly that:
We first consider appellant E. E. Miller's fourth point, under which the argument is made, among others, that the trial court failed to find undue influence. It is basic that a judgment cannot be sustained on appeal unless the conclusion upon which it rests finds support in the findings of fact. Thompson v. H. B. Zachry Co., 75 N.M. 715, 410 P.2d 740 (1966); Star Realty Company v. Sellers, 73 N.M. 207, 387 P.2d 319 (1963); Isaac v. Seguritan, 66 N.M. 410, 349 P.2d 126 (1960); Jontz v. Alderete, 64 N.M. 163, 326 P.2d 95 (1958); Consolidated Placers, Inc. v. Grant, 48 N.M. 340, 151 P.2d 48 (1944). The trial court must make ultimate findings of fact. Evidentiary findings are not required. Rule 52(B)(a)(2) (§ 21--1--1(52)(B)(a)(2), N.M.S.A., 1953 Comp.); State ex rel. State Highway Commission v. Pelletier, 76 N.M. 555, 417 P.2d 46 (1966); Hoskins v. Albuquerque Bus Company, 72 N.M. 217, 382 P.2d 700 (1963); Christmas v. Cowden, 44 N.M. 517, 105 P.2d 484 (1940); Fraser v. State Savings Bank, 18 N.M. 340, 137 P. 592 (1913). Ultimate facts are the facts which are necessary to determine the issues in the case, as distinguished from the evidentiary facts supporting them. Rule 52(B)(a)(2), supra. In Star Realty Company v. Sellers, supra, this court held that:
'* * * They are the controlling facts, without which the court cannot correctly apply the law in rendering its judgment. * * *'
Thompson v. Zachry Co., supra; Brundage v. K. L. House Construction Company, 74 N.M. 613, 396 P.2d 731 (1964); Apodaca v. Lueras, 34 N.M. 121, 278 P. 197 (1929). E. E. Miller argues that although the trial court mentioned 'influence' several times in its findings, the only reference to 'undue influence' is merely an aside rather than a finding. It is true that not all influence is 'undue' influence. The mere fact that influence is exerted upon a testator does not of itself vitiate the testator's will, or require that it be set aside, or denied probate. McElhinney v. Kelly, 67 N.M. 399, 356 P.2d 113 (1960). It is only undue influence which has this effect. However, we believe that the trial court's finding of fact No. 9 constitutes a finding of fact of undue influence. The trial court in that finding said, essentially, that F. A. Miller would not, except for the undue influence practiced upon him by E. E. Miller, have executed the instrument dated April 1, 1952. Nothing more is required for a finding of fact of undue influence. Appellant E. E. Miller in his sixth point attacks the trial court's conclusions of law Nos. 2, 3, 4, 5 and 6. We have already disposed of the question as to whether or not the trial court found undue influence as a fact. Therefore, the validity and applicability of these conclusions of law depend, at the outset without here...
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