Hilton's Estate, Matter of
| Citation | 649 P.2d 488,1982 NMCA 104,98 N.M. 420 |
| Decision Date | 15 June 1982 |
| Docket Number | No. 5454,5454 |
| Parties | In the Matter of the ESTATE OF Joseph L. HILTON, Deceased. Ara Hilton, Personal Representative-Appellee, Elmer Darrell Hilton and Phyllis Hilton Elkins, Petitioners-Appellants, Loretta Szaloy, Ara Carden and Laura Griffin, Respondents-Appellees. |
| Court | Court of Appeals of New Mexico |
Appellants, as grandchildren of Joseph L. Hilton, deceased, (testator), appeal from an order of the district court denying their claim for an intestate share of testator's estate. Appellants assert that the court erred as a matter of law (1) in finding that testator intended to disinherit appellants, upon evidence admitted solely for a limited purpose; and (2) in denying appellants an intestate share of testator's separate estate under the pretermitted children section of the New Mexico Probate Code, § 45-2-302, N.M.S.A.1978.
We affirm.
Testator died on August 2, 1980, at age 92, leaving a Last Will and Testament, dated August 30, 1972. The adversary parties herein are appellants, Phyllis Hilton Elkins and Elmer Darrell Hilton, who were not mentioned by name in testator's will; appellees, Ara Hilton, testator's surviving widow, and testator's surviving three daughters: Loretta Szaloy, Ara Carden, and Laura Griffin.
Testator was married twice. He had four children by his first marriage: the three daughters, who are appellees herein, and one son, Elmer Hilton. Testator's son predeceased him and died in August, 1965, prior to the execution of testator's will. Testator's deceased son had two children who survived him (testator's grandchildren), Phyllis Elkins and Elmer Darrell Hilton, who are the appellants herein.
Testator was divorced from his first wife and subsequently married Ara Hilton. Testator had no children from his second marriage.
Testator's will was admitted to probate in the Quay County District Court on September 24, 1980. After making provision for testator's debts and funeral expenses, the will provided in applicable part as follows:
II.
I give, devise and bequeath my home place consisting of 1486.42 acres in Quay County, New Mexico, ..., and also the Williams, Gregory and Spann lands owned by me in Jack County, Texas, near Jacksboro, Texas, to my beloved wife, ARA HILTON, for the term of her natural life, subject only to the provisions of paragraph IV, herein, and at her death to my three daughters, Loretta Szaloy, Ara Carden and Laura Griffin, or children surviving them, if they or any of them should predecease my wife, Ara Hilton, share and share alike. If any one or more of said daughters should predecease Ara Hilton and leave no children, then said land shall go to my surviving daughters or children surviving them.
III.
I give and bequeath to my beloved wife, Ara Hilton, and to my three daughters, Loretta Szaloy, Ara Carden and Laura Griffin, all monies which I may have at the time of my death, share and share alike. If my beloved wife should predecease me, the bequest to her hereunder shall lapse, and said monies shall be divided equally among my said daughters. In the event any one or more of my daughters should predecease me, their share shall go to their surviving children. If any one or more of my daughters should predecease me and leave no children, it is my will that their share shall be distributed equally to the surviving legatees hereunder.
....
V.
I give, devise and bequeath all of the remainder of my estate whether consisting of real, personal or mixed property and wherever found or situated to my three daughters, share and share alike. If any one or more of them should predecease me, then it is my will that the share of said deceased shall go to their surviving children. If any one of them should predecease me, leaving no children, it is my will that my entire residuary estate shall go to the surviving residuary devisees hereunder.
....
VII.
I declare that I have only three children, namely: Loretta Szaloy, Ara Carden and Laura Griffin, my daughters, and that if any other person claims to be a child or heir of mine and establishes such claim in a Court of competent jurisdiction, I give to such person the sum of One Dollar.
Paragraph IV provided a specific bequest to testator's wife's grandson, Larry Williams in appreciation for his help in testator's farming operations. Paragraph VI named testator's wife executrix of the will and designated his oldest daughter, Loretta Szaloy, as alternate executrix in the event of his wife's inability to serve. The will was properly subscribed and witnessed.
At the conclusion of the hearing on appellants' petition for an intestate share of decedent's estate as omitted heirs under the last will and testament, the trial court denied appellants' claims. The court entered the following pertinent findings of fact:
5. By his Will, Joseph L. Hilton left the residue of his estate to Loretta Szaloy, Ara Carden and Laura Griffin. The Will did not mention ... Elmer Darrell Hilton or Phyllis Elkins by name....
....
7. The decedent did not otherwise provide for Elmer Hilton, his deceased son, during Elmer's lifetime; nor did the decedent otherwise provide for the petitioning grandchildren during his lifetime.
8. Throughout their lifetime, both before and after the execution of the will involved herein, Elmer Darrell Hilton and Phyllis Elkins had periodic contacts, both in person and by letter, with their grandfather, Joseph L. Hilton. Mr. Hilton was, therefore, aware of their existence at the time of executing his will and thereafter.
9. During the lifetime of Joseph L. Hilton, there was never any mention nor any hint of any person claiming to be a child of Joseph L. Hilton other than Loretta Szaloy, Ara Carden, Laura Griffin and Elmer Hilton who were children of his first marriage.
10. Joseph L. Hilton intended to refer to Elmer Darel (sic) Hilton and Phyllis Elkins when he included the provision in his will that stated, 'if any other person claims to be a child or heir of mine and establishes such claim in a court of competent jurisdiction, I give to such person the sum of One Dollar.'
Appellants have challenged the court's findings no.'s 8, 9 and 10.
Appellants argue that the trial court's decision and findings of fact no.'s 8, 9 and 10, determining that the testator intentionally excluded appellants from his will, were improperly predicated upon extrinsic evidence admitted solely for a different, limited purpose, contrary to the court's ruling announced on a motion in limine.
Prior to the hearing on the merits, the trial court heard appellants' motion in limine to restrict the evidence at trial regarding testator's intent to disinherit the children of his deceased son. The trial court ruled that under Probate Code § 45-2-302(A)(1), supra, the court must determine from the language of the will itself that the failure to provide for appellants was intentional. The court, however, held that extrinsic evidence of matters outside the will was admissible under § 45-2-302(A)(3), supra, as bearing upon appellees' contention that testator had provided for appellants by transfer of property outside the will and intended that the transfer be in lieu of testamentary disposition.
Under § 45-2-302(A), supra, if a testator omits a child from a will, the child or his issue is disinherited only when: (1) the omission appears to be intentional clearly from the face of the will, (2) the testator at the time of execution of the will had one or more children and devised substantially all of his estate to the testator's spouse; or (3) testator provided for the omitted child by transfers outside his estate with the intent that such transfers be in lieu of testamentary disposition. If the testator's intent does not appear from the language of the will itself or cannot be established by one of the other criteria above, the law presumes that the failure to mention the child in the will was unintentional.
Although under § 45-2-302(A)(1), supra, extrinsic evidence is not admissible to overcome the presumption against disinheritance and the intention to disinherit must appear in the language of the will itself, extrinsic evidence is admissible under the statute to attempt to prove the testator's intent to disinherit under the situations contemplated by § 45-2-302(A), subsections (2), and (3), supra.
The trial court did not find from the evidence presented that the testator provided for appellants outside the will in lieu of any testamentary disposition. As shown by the court's findings, the trial court did, however, consider extrinsic evidence as to the surrounding circumstances known to the testator at the time of the execution of his will. Matter of Estate of Shadden, 93 N.M. 274, 599 P.2d 1071 (Ct.App.), cert. denied, 93 N.M. 172, 598 P.2d 215 (1979).
Appellants have challenged findings 8, 9 & 10, but have not challenged the court's finding no. 7, which found from extrinsic evidence presented that decedent's only son, Elmer Hilton, was predeceased, and that decedent did not otherwise provide for his grandchildren (appellants) during his lifetime. The trial court could properly receive extrinsic evidence to show the testator's awareness of appellants' existence at the time he executed his will-since this went to the issue of whether he had otherwise provided for them during his lifetime. The court's finding no. 8, challenged by appellants, is directly related to the court's finding no. 7, not challenged and is consistent with the court's ruling admitting the evidence for a limited purpose. The court's finding no. 9 is immaterial to the ultimate issues determined by the court, i.e., whether the testator intended to disinherit...
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