Garcia Y. Perea v. Barela
| Decision Date | 20 August 1891 |
| Citation | 27 P. 507,6 N.M. 239,1891 -NMSC- 034 |
| Parties | GARCIA Y PEREA v. BARELA. |
| Court | New Mexico Supreme Court |
Bill in equity by Guadalupe S. de Garcia by Perea against Mariano Barela for relief from fraud. Judgment for plaintiff below which, on appeal by defendant, was affirmed in the supreme court. See 23 P. 766. Defendant now moves for a rehearing. Denied.
On rehearing.
This is an application for a rehearing of this case, which was argued and decided at the January term, 1890. 23 P. 766. Upon the hearing of the cause, counsel for appellant contended that the court below had not jurisdiction to hear and determine the cause, for the reason that section 562, Comp. Laws 1884 vested in the probate court exclusive original jurisdiction to determine all matters of controversy involved in the cause; and this court decided that, if said section 562 was susceptible of the construction claimed for it, said section was in conflict with section 1868 of our organic law, which provides that "the supreme court and the district courts, respectively, of every territory, shall possess chancery as well as common-law jurisdiction." The appellant insists that this court erred in its former opinion, and asks to have the cause reheard upon this and other grounds stated in the petition for a rehearing.
Section 10 of our organic act provides that The supreme court of the United States in Ferris v. Higley, 20 Wall. 375, clearly defined the meaning of the words, "shall be as limited by law," and held that it was inconsistent with the nature and scope of probate courts to confer common-law and chancery jurisdiction upon such courts in the territory of Utah, whose organic law, in this respect, is substantially like ours. To hold that the probate court of Dona Ana county was possessed of powers to give adequate relief in this case would be to decide that such court possessed chancery jurisdiction. The circumstances of the case and the relief sought are of equitable cognizance, and such as could only be relievable in a court possessing chancery jurisdiction. In any view of the case, the jurisdiction of the probate court is only exclusive as to claims against an estate not exceeding $100. The appellee's claim against the estate under the will was for money devised to her, which amounted to some $6,000 therefore she could, under section 562, bring her suit in the district court in the first instance. Ordinarily such a suit would be at law, but in this case the appellee had a right to sue on the equity side, in order to get relief from the receipt which she insists the appellant fraudulently obtained from her; and equity, being properly invoked for the one purpose, would retain jurisdiction for all purposes necessary to give her complete relief in respect to that claim. The provision of the act of congress, that "the supreme court and district courts, respectively, of every territory shall possess chancery as well as common-law jurisdiction," excludes the idea that the probate courts shall have exclusive jurisdiction in cases where equities are involved. Nor would a due regard to public policy and the protection of estates of decedents justify the grant of such extensive powers to probate courts as constituted in New Mexico.
The appellee contends that the appellant had an adequate remedy by appeal from the action of the probate court. We do not think so. The subject of this controversy was some $6,000, which appellee claims was left her by the will of her deceased husband, and that the appellant took possession of the money, and fraudulently obtained from her a receipt for all claims against the estate; that the appellant made no mention of this money in the inventory filed by him in the probate court, but claimed the same belonged to his mother and himself as residuary legatees named in the will. These facts present a case of purely equitable cognizance. She might have taken steps for the protection of her rights in the probate court; but can it be said that the remedy afforded in that court was as ample and adequate as that of the district court? Even the district court would have been powerless to have given her relief under a common-law proceeding. Sections 1446-1449 limit the power and prescribe the duty of a judge of probate with respect to the probate of the will. Under these sections the probate judge cannot declare a will or codicil invalid because the will was not executed according to the statutes; but if he shall have doubt as to whether the will ought to be approved on account of its not being executed according to the statutes, he should note his doubts at the foot of the will, and return it to the person presenting the same, and such person may then present the will to the district court for a judicial determination of its validity. This is not done by way of an appeal, but may be by an original suit instituted for that purpose in the district court. In this case a codicil of the will was attested by but two witnesses. The statute requires three. The probate judge, however, approved the codicil, notwithstanding its defective execution. If the probate judge has not power to declare a will or codicil invalid because it is not executed under the solemnities prescribed by statute, we think it follows as a necessary corollary of that proposition that such court would not have power to judicially determine that such will or codicil was valid. Could the probate judge, by approving a codicil to the will, which was invalid under our statute, deprive the parties interested of the right to have the validity of the codicil judicially determined by the district court? It was the duty of our probate judge, when the will was presented to him for probate, having the codicil thereto, which codicil was attested by only two witnesses, to have returned the will to the appellant without approval, and to have indorsed thereon his reason for withholding his approval. Then the appellant could have presented the matter to the district court for a judicial determination of the question, as it is provided in section 1449 that any proceedings had by said judge of probate, not in conformity with the provisions of this act, shall be declared null and of no effect by the district court. The statute does not prescribe the proceedings in which this may be done, and, therefore, to give effect to the statute, there is no reason that it may not be done in any case in which the question may be made an issue. We do not mean to say that in no case could the probate judge admit to probate and approve a will or a codicil of the will. But if the will and codicil presented to the probate judge appeared to that court to have been executed and attested in the manner required by statute, he could give it his approval; but such approval would be in the exercise of an administrative, and not a judicial, function, and, notwithstanding his approval, a party interested in the will could invoke a judicial determination by the district court as to whether the will was or was not executed and attested as required by statute.
It is contended by the appellants in their motion that the organic act confers an exclusive probate jurisdiction on the probate court, which the legislature is authorized to define. The federal supreme court, in the case referred to, does not so construe it. Justice MILLER, in the opinion, says: But it is claimed that, if the organic act had not conferred such exclusive jurisdiction, this legislature could rightfully do so without conflict with the act of congress. This proposition is correct,...
To continue reading
Request your trial