Gregg v. Gardner

• Decision Date: 23 December 1963
• Docket Number: No. 7284,7284
• Citation: 388 P.2d 68,73 N.M. 347,1963 NMSC 223
• Parties: Casandra GREGG et al., Plaintiffs-Appellants and Cross-Appellees, v. Marion Hogan GARDNER, also known as Paddy Hogan Gardner, Defendant-Appellee and Cross-Appellant, Mrs. John Hugen, also known as Sydne Lee Hughen, and Mrs. Frankie Freitas, and First National Bank of Las Cruces, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 68

388 P.2d 68

73 N.M. 347

Casandra GREGG et al., Plaintiffs-Appellants and Cross-Appellees, v. Marion Hogan GARDNER, also known as Paddy Hogan Gardner Defendant-Appellee and Cross-Appellant Mrs. John Hugen, also known as Sydne Lee Hughen, and Mrs Frankie Freitas, and First National Bank of Las Cruces, Defendants-Appellees.

No. 7284.

Supreme Court of New Mexico.

Dec. 23, 1963.

Shipley, Seller & Whorton, Lorna Shipley, Alamogordo, for appellants.

J. D. Weir, J. R. Crouch, Las Cruces, for Marion Hogan Gardner.

Edward E. Triviz, Las Cruces, for First National Bank of Las Cruces.

MOISE, Justice.

Out of a series of most inforeseen, untoward and lamentable events arises this difficult, albeit interesting, litigation.

On July 25, 1956, Irma G. Evans, the testatrix, executed her will. At that time testatrix was married to Bernard B. Evans, who was and had been an invalid for a number of years. She had two children, Bodwin Lee Evans, a daughter, and Ryan Gregg Evans, a son, who were 10 and 9 years old, respectively.

Bernard B. Evans, the husband, died on March 1, 1957. Thereafter, on October 19, 1959, testatrix executed a codicil dealing with certain real estate which she had acquired from her father, but otherwise she left the 1956 will unchanged. On December 3, 1960, John Gregg, brother of testatrix, named as executor and trustee in the will, died. Her father, who was living when the will was executed, also died. On December 22, 1960, testatrix and her two children died as the result of an accident, the two children predeceasing their mother by a short period.

The will and codicil were offered for probate and duly admitted. The First National Bank of Las Cruces, New Mexico, was appointed Administrator with the will annexed on February 21, 1961. The first amended complaint in this cause was filed September 20, 1961. It is an action brought by a sister of decedent, and by the widow of John Gregg, a deceased brother, on behalf of her four children, nieces and nephew of decedent, all claiming to be heirs at law, seeking a declaratory judgment construing the will and declaring the rights of the parties as to the following matters specified in the prayer:

'(a) That the express trust set out in the Last Will and Codicil of said Irma Gregg Evans, Deceased, failed for lack of beneficiaries.

'(b) That the failure of said trust for the use and benefit of her children or their issue gave rise to a resulting trust, as to all personal property of her estate, for the benefit of her heirs at law.

'(c) That the real estate owned by decedent at her death is expressly charged with the burden of payment of her debts, taxes and the expenses of administration of her estate, and the same must be paid from that source, so far as possible, before payment of any of said items shall be made from the personalty of her estate; and that the net assets of her estate should be distributed as claimed and asserted by plaintiffs in the second paragraph of Section 4 of this Complaint.

'(d) That the sales of real estate made by said Irma Gregg Evans in her lifetime constituted equitable conversion of the affected real estate into personal property, and ademption.

'(e) That, if this Court shall adjudge that the real estate of the decedent Irma G. Evans is not charged with the burden of payment of her debts, taxes, and the expenses of administration of her estate, then the real estate and personal property distributable to said Marion Hogan Gardner is and should be charged with an equitable lien for payment of its aliquot share of the mortgage debt above mentioned, for the benefit of the other distributees of the estate of said deceased person.

'(f) That the costs of this action and reasonable attorneys' fees for Plaintiffs' attorneys and for any Guardian Ad Litem for minor parties hereto shall be paid from the funds of the estate of said Irma Gregg Evans, Deceased, before other distribution shall be made therefrom; and for such further relief as may be equitable and proper.'

Marion (Paddy) Hogan Gardner, niece of decedent, who claims to be the sole beneficiary under the will, together with the administrator CTA, the alternate trustees named in the will, and all other known heirs at law, were named defendants and, in addition, certain unknown persons and unknown heirs of deceased heirs at law were joined. The alternate trustees did not appear or defend the action.

The material portions of the will which the court was called on to construe are the following:

'1. I understand that as a married woman, I have no power of testamentary disposition over any community property owned by my husband and me; but that I do have the power of testamentary disposition over my separate property and estate. I am the owner of real estate about one-half mile north of State College in Dona Ana County, New Mexico, which is my separate property and which I wish to dispose of upon my death as hereinafter set forth.

'2. I name and appoint my brother, John J. Gregg of Alamogordo, New Mexico as executor of this Will, and direct that no bond shall be required of him.

'3. I direct that all my just debts, including the expenses of my last illness and funeral, be paid by my executor as promptly as possible.

'4. After the payment of my debts, taxes and expenses of administration, I give and devise all of my real estate to my aforesaid brother, John J. Gregg, or to his successors, IN TRUST NEVERTHELESS, to and for the uses and purposes following, that is to say, for the maintenance, support and education of my two minor children, Bodwin Lee Evans, my daughter, now ten years of age, and Ryan Gregg Evans, my son, now nine years of age, until the youngest of them shall attain the age of twenty-five years. In the administration of said trust I hereby fully authorize and empower my said trustee and his successors: (Here follow sub-paragraphs (A) to (D), inclusive, containing a statement of powers and duties of the trustees with regard to handling of the trust property).

'(E) When the youngest of my said children shall attain the age of twenty-five years, my said trustee shall convey the aforesaid real estate or such part thereof as remains unsold, to my said children, share and share alike (and I hereby give and devise the same, accordingly), and to the lawful descendents of such of my children as may have previously died leaving lawful issue him or her surviving, such lawful descendent or descendents to take the share that his parent would have taken if living, per stirpes, and not per capita.

'(F) If either of my said children shall die before attaining the age of twenty-five years, without issue, then the surviving child shall take his or her share and upon attaining the age of twenty-five years the entire trust estate shall be conveyed to such surviving child (and I hereby give and devise the same, accordingly).

'(G) If both of my said children shall die before attaining the age of twenty-five years, without issue, then and in that event I give and devise all of the aforesaid real estate, or such part thereof as may remain in the hands of the trustee, to my niece, Marion (Paddy) Hogan of El Paso, Texas, and her heirs and assigns.

* * *

* * *

'7. I give and bequeath all of my personal property, of whatsoever kind and wheresoever situated and of which I shall die possessed to my husband, Bernard B. Evans, if he shall survive me. If he shall not survive me, then I give and bequeath all of said personal property to my trustee or trustees for the use and benefit of my children and subject to the trust provisions hereinbefore enumerated.'

The codicil of October 11, 1959, stated that in addition to the real estate owned as separate property and mentioned in paragraph one of her will, testatrix also owned as separate property an undivided interest in some real estate in Alamogordo, Otero County, New Mexico. She stated that it should not be included in the trust provided for in paragraph four of the will as long as her father should live, but if he should pre-decease testatrix then upon her death, if she had not disposed of the property, it should pass to her trustee 'in accordance with Paragraph Four.'

The following findings of fact made by the court, none of which are attacked, are also material to show the changes in the property after execution of the will. Out of these changes arise some of the problems which we are here called upon to resolve.

'29. On the date of execution of her Last Will, Irma Gregg Evans owned a nominal amount of personal property and owned valuable real estate, near State College, in Dona Ana County, New Mexico, which was her separate property; and she was indebted to the extent of $10,000.00 or more.

'30. After the dates when she executed her Last Will and the Codicil thereto, Irma Gregg Evans borrowed approximately $17,000.00 from the Defendant First National Bank of Las Cruces, New Mexico; and to secure payment of the note which evidenced said debt, she mortgaged her real estate in Dona Ana County, New Mexico, to said Bank, and assigned to it two escrow contracts covering sales of portions of her said real estate, under which the aggregate purchase price was approximately $47,000.00; and said mortgage, assignments and contracts were in effect at the time of her death.'

The trial court, in a written opinion filed in the case, expressed the feeling that while the decision did not result in 'an equitable distribution of this estate,' since if felt 'that the equities all lie on the side of the plaintiffs herein,' nevertheless was convinced that he had 'no right to interpret the will according to what he feels the equities are in the case, but that he must interpret the will as a whole as to the language used in the will, thereby determining what the intention of the testatrix was,' and concluded that 'When the children, who were the beneficiaries of the trust, died before the testatrix * * * it was her intention then that her entire...