Girard v. Girard.

• Decision Date: 17 November 1923
• Docket Number: No. 2857.,2857.
• Citation: 221 P. 801,29 N.M. 189
• Parties: GIRARD ET AL.v.GIRARD.
• Court: New Mexico Supreme Court

29 N.M. 189

221 P. 801

GIRARD ET AL.

v.GIRARD.

No. 2857.

Supreme Court of New Mexico.

Nov. 17, 1923.Rehearing Denied Jan. 18, 1924.

Syllabus by the Court.

Upon the death of a married man who dies intestate, with a surviving widow and without issue, his entire estate descends to and becomes her property.

If such an intestate leaves no wife, the portion of his estate which would have gone to her ascends to and becomes vested in his parents; if only one parent survives such intestate, the entire estate vests in such surviving parent.

If both parents are dead, the portion of the estate which would have gone to them had they been living shall be disposed of in the same manner as if they had survived the intestate and had died in the full possession and ownership of such estate.

In the construction of contracts, where it is sought to deprive either husband or wife of property rights growing out of the marital relation, courts will go no further than the language of the contract extends, and will not deprive either spouse of such rights unless there is a clear and unmistakable intention to barter them away.

Where a separation contract between husband and wife does not, by express terms or by necessary implication, provide that she waives, releases, relinquishes, and renounces her right to inherit from him upon his death, intestate and without issue, such right still remains with and may be enforced by such surviving widow.

Additional Syllabus by Editorial Staff.

Necessary implication means so strong a probability of intention that an intention to the contrary or otherwise than that imputed cannot be reasonably supposed.

Appeal from District Court, Bernalillo County; Hickey, Judge.

Suit by Augustine J. Girard, individually and as administratrix of the estate of Joseph F. Girard, deceased, against Margaret Morrison Girard. Judgment for plaintiff, and defendant appeals. Reversed and remanded with directions.

On July 14, 1906, Joseph F. Girard, who was then a widower, and Margaret Morrison, who was then a widow, were married at Albuquerque, N. M., and immediately thereafter began living together as husband and wife. They continued to so live until September 8, 1917, when, as the result of divers disputes and unhappy differences which had arisen between them, they ceased to live together and permanently separated. On that day they entered into a written contract of separation, which, after providing that the husband released all claims to the property then owned or afterwards acquired by the wife, contained the following pertinent provisions:

“And, further, that the said party of the first part has at the time of signing this agreement paid to his said wife the sum of four thousand ($4,000.00) dollars, receipt of which is hereby acknowledged by the said second party, and which the said party of the second part does hereby take in full satisfaction of her support and maintenance and all alimony whatever, and the said party of the second part in consideration of the sum of one dollar to her in hand paid, the receipt of which is hereby acknowledged and confessed, does hereby agree to and with her said husband, the party of the first part, that she will, and hereby does by this agreement, release all right, title, or interest of any kind whatsoever, in law or in equity, which she may now have or possess, to any and all property of any kind or description, real or personal, now owned by or hereafter acquired by the said party of the first part during his natural life.”

On September 14, 1917, the said Joseph F. Girard executed his last will and testament, by the terms of which he gave, bequeathed, and devised unto his said wife the sum of $1; he likewise gave to an adopted son of his deceased son the sum of $1; and he further gave to his stepson, Charles Girard, the sum of $2,000. He then gave, bequeathed, and devised unto his married daughter, Julia Emily Ward, the rest, residue, and remainder of his estate, and appointed her executrix of such will, with the added provision that no bond be required of her.

Julia Emily Ward died on September 26, 1921, without issue, and on November 9, 1921, Joseph F. Girard died at Albuquerque, N. M., leaving no issue of either marriage. Afterwards and on December 22, 1921, by an order duly and regularly made by the probate court of Bernalillo county, the above-mentioned will was regularly admitted to probate, and the appellee Augustine J. Girard, who is a niece of the deceased, was duly appointed administratrix with the will annexed, and letters of administration accordingly issued. The said Augustine J. Girard, acting both in her individual and official capacity, instituted this suit against all of the persons whom she claimed to be the heirs at law of the deceased, setting forth the blood relationship or kinship which each bore to him, together with an allegation of the fractional part of the estate owned by each of them, respectively. The will was fully pleaded, with the several bequests therein contained, as well as the death of Julia Emily Ward prior to that of Joseph F. Girard, and that, by virtue of said will, the appellant was entitled to only $1 from the assets of the estate. Appellee prayed that the heirship of all the defendants be determined by the court; their respective interests in the estate be adjudicated; that such estate be partitioned, and to that end that commissioners be appointed.

The appellant, Margaret Morrison Girard, answered denying that she owned and was entitled to only $1 of said estate, and, by cross-complaint, pleaded that she was the wife and surviving widow of the deceased; that, by reason of the predecease of Julia Emily Ward, the general residuary bequest in her favor contained in said will had lapsed; that her (appellant's) husband died without issue, and that by reason thereof she inherited and became the owner of said estate in its entirety, whether it be community or separate property. She further pleaded the separation agreement referred to, but contended that by its terms she did not waive, release, relinquish, or renounce her right to so inherit from her said husband. She further pleaded at length the expenditure of certain community money belonging to herself and husband in the improvement of the properties involved, and sought to tinge them as community property by reason thereof.

The appellee by answer to such cross-complaint admitted the marriage of the appellant to the deceased, that she is his surviving widow, as well as the execution of the separation agreement; but contended that, by the express terms of the contract, the appellant had waived, released, and relinquished her right to inherit from her said husband, but, if not expressly so provided, then it was the agreement, intention, and understanding of the parties at the time they entered into the contract, and they intended to so provide. By an amendment duly made, the appellee further prayed that if the court should determine the contract did not provide as the parties intended and agreed, that it be reformed to conform to their intention, understanding, and agreement at the time it was entered into.

The trial court found that all of the property involved was the separate property of the deceased husband; he made no finding with reference to the expenditure of community money in the improvement thereof; he found that the separation agreement was entered into; and concluded, as a matter of law, that by its terms the appellant had released and relinquished all her right to inherit the estate upon the death of her husband. Decree was rendered determining the heirship of the several defendants, adjudicating their respective interests in the estate, and awarding to the appellant the sum of $1 as provided in the will. From this decree she has appealed.

Where a separation contract between husband and wife does not, by express terms or by necessary implication, provide that she waives, releases, relinquishes, and renounces her right to inherit from him upon his death intestate and without issue such right still remains with and may be enforced by such surviving widow.

Rodey & Rodey, of Albuquerque, for appellant.

Downer & Keleher, of Albuquerque, and F. M. Downer, Jr., of Denver, Colo., for appellees.

BRATTON, J. (after stating the facts as above).

[1][2][3] The conclusion which we have reached renders it necessary to consider but one question in the case, although others are discussed by counsel in their briefs. It is provided by statute that the entire estate of a married man who dies intestate, with a surviving wife and without issue, descends to and becomes the property of the wife. If he leaves no wife, it becomes the property of his parents, and if only one parent is living, the portion which would have gone to the deceased parent vests in the surviving parent.

“If the intestate leaves no issue, the whole of his estate shall go to his wife; if he leaves no wife, the portion which would have gone to her shall go to his parents. If one of his parents be dead, the portion which would have gone to such deceased parent, shall go to the surviving parent.” Section 1845, Code 1915.

And it is further provided by statute that, if both parents are dead, the portion of the estate which would have ascended to them, under the terms of the statute just quoted, shall be disposed of in the same manner as if they had outlived the intestate and had died in possession and ownership of such property.

“If both parents be dead, the portion which would have fallen to their share, by the above rule, shall be disposed of in the same manner as if they had outlived the intestate, and died in the possession and ownership of the portion thus falling to their share; and so on through the ascending ancestors and their issue.” Section 1846, Code 1915.

The appellant is the surviving widow of the deceased, and, as such, contends that by virtue of the provisions contained in section 1845...