Greig's Will, Matter of, 11851

Decision Date09 February 1979
Docket NumberNo. 11851,11851
Citation1979 NMSC 14,92 N.M. 561,591 P.2d 1158
PartiesIn the Matter of the Last WILL and Testament of Beatrice M. GREIG, Deceased. Melvin D. RUECKHAUS and Natalie Didama, Contestants-Appellants, v. Fletcher R. CATRON, Petitioner-Appellee.
CourtNew Mexico Supreme Court
OPINION

FEDERICI, Justice.

This case involves a dispute over which of two wills executed by Beatrice M. Greig, deceased, is entitled to probate. Three proceedings below are relevant to the appeal:

(1) An action filed in the District Court of Bernalillo County entitled "In The Matter of the Alleged Incompetency of Beatrice Worth Greig," No. 6-76-02395, in which the trial court determined that Ms. Greig was incompetent as of March 2, 1976;

(2) A probate proceeding filed by attorney Catron (appellee) in the District Court of Bernalillo County to probate a will executed by Ms. Greig in 1972, followed by an "Affirmation of Will" executed by Ms. Greig on June 2, 1976, affirming the 1972 will; and

(3) A probate proceeding filed by attorney Rueckhaus (appellant) in the Probate Court of Bernalillo County to probate a will executed by Ms. Greig in 1975.

The district court, in the course of its proceedings relating to the 1972 will, transferred the probate court proceeding to the district court and abated any action in that case until there was a hearing on the 1972 will. After trial, the court held that the 1972 will was effective by reason of the 1976 affirmation and admitted the 1972 will and the 1976 affirmation to probate as the Last Will and Testament of Beatrice Greig. The court refused to admit the 1975 will to probate. Appellant Rueckhaus and appellant Didama appeal.

Didama is a surviving heir of Ms. Greig. She claims that because of the incompetency of Ms. Greig neither the 1972 will, the 1975 will, nor the affirmation of 1976, are valid. Therefore, Didama argues that Ms. Greig died intestate and that she is entitled to all of decedent's estate as sole surviving heir. Didama did not enter an appearance or become a party below. Didama joined in this appeal without complying with any of the rules of appellate procedure. We hold that Didama is not a proper party to this appeal.

Even if we were to assume for purposes of discussion that Didama is a proper party, she could not prevail. Notwithstanding the guardianship order in Cause No. 6-76-02395, Ms. Greig had the requisite testamentary capacity to make a will. The controlling elements of testamentary capacity were set out by this Court in McElhinney v. Kelly, 67 N.M. 399, 356 P.2d 113 (1960): "(1) (K) nowledge of the meaning of the act of making a will, (2) knowledge of the character and extent of the estate, and (3) knowledge of the natural object of testator's bounty." Id. at 403, 356 P.2d at 115 (citations omitted). See also Hummer v. Betenbough, 75 N.M. 274, 404 P.2d 110 (1965).

In the present case, the trial court found that:

11. On June 2, 1976 when Beatrice Greig signed the Affirmation of Last Will and Testament, she understood the nature of the document and the effect of her execution of the Affirmation of Last Will and Testament.

12. At the time she signed the Affirmation of Last Will and Testament, Beatrice Greig knew the natural objects of her bounty.

There is substantial evidence in the record to support the findings made by the trial court and those findings are the facts upon which the case rests.

With reference to the 1972 will and the affirmation, the trial court made the following findings:

6. On June 2, 1976, Beatrice Greig executed in the presence of Marie Taylor, Diane L. Catron and Fletcher Catron a document captioned, "Affirmation of Last Will and Testament" which provided:

"I, Beatrice M. Greig, do hereby declare that my Will dated January 8, 1972, is my Last Will and Testament and I hereby revoke any and all subsequent Wills which may have been made by me to this date."

8. On June 2, 1976, at Beatrice Greig's request and in her presence and the presence of each other, Marie Taylor and Diane L. Catron witnessed Beatrice Greig's signature by signing their names to the Affirmation of Last Will and Testament.

Based upon its findings of fact, including those quoted above, the court concluded:

2. The January 8, 1972 Will was effective as the Last Will and Testament of Beatrice Greig, deceased, at the time it was signed.

3. If the January 8, 1972 Will was revoked, it was either revived by the Affirmation of Last Will and Testament dated June 2, 1976, or the Affirmation of Last Will and Testament is a testamentary instrument in and of itself which incorporated by reference the terms of the 1972 Will.

4. The January 8, 1972 will and the copy of the June 2, 1976 Affirmation of Last Will and Testament should be admitted to probate as the Last Will and Testament of Beatrice Greig, deceased.

Appellant Rueckhaus contends that the 1972 will was revoked by tearing...

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3 cases
  • Estate of Kimble, Matter of
    • United States
    • Court of Appeals of New Mexico
    • February 8, 1994
    ...of executing a will; (2) the extent and character of her estate; and (3) the natural objects of her bounty. In re Will of Greig, 92 N.M. 561, 562, 591 P.2d 1158, 1159 (1979) (quoting McElhinney v. Kelly, 67 N.M. 399, 403, 356 P.2d 113, 115 (1960)). Testamentary intent, on the other hand, fo......
  • Lucero v. Lucero, 14554
    • United States
    • Court of Appeals of New Mexico
    • September 21, 1994
    ... ... Aristeo C. LUCERO, Jr., Cross-Petitioner/Appellee ... In the Matter of the ESTATE OF Carolina M. LUCERO, Deceased ... No. 14554 ... Court of ... will in July 1984. In December 1986, one of Mrs. Lucero's sons, Aristeo Lucero ... ...
  • Estate of Greig, Matter of
    • United States
    • Court of Appeals of New Mexico
    • April 28, 1988
    ...appellate review and two related district court lawsuits. The estate has been in litigation for over ten years. See In re Will of Greig, 92 N.M. 561, 591 P.2d 1158 (1979). The present appeal is from the trial court's order which set fees for the estate's personal representative and lawyers ......

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