Hummer v. Betenbough

• Decision Date: 12 July 1965
• Docket Number: No. 7457,7457
• Citation: 1965 NMSC 75,75 N.M. 274,404 P.2d 110
• Parties: Alice Joann HUMMER and Patsy Ruth Hughes, Appellants, v. C. G. BETENBOUGH and Ronald Betenbough, a minor, by and through his attorney and guardian ad litem, Finis L. Heidel, Appellees, Isa McClish, Intervenor-Appellee.
• Court: New Mexico Supreme Court

Page 110

404 P.2d 110

75 N.M. 274

Alice Joann HUMMER and Patsy Ruth Hughes, Appellants, v. C. G. BETENBOUGH and Ronald Betenbough, a minor, by and through his attorney and guardian ad litem, Finis L. Heidel, Appellees Isa McClish, Intervenor-Appellee.

No. 7457.

Supreme Court of New Mexico.

July 12, 1965.

Harris & Norwood, Roswell, for appellants.

Alex D. Solsbery, Roswell, for intervenor-appellee.

CHAVEZ, Justice.

This is an appeal from a judgment of the district court affirming the decision of the probate court, which decreed that the instrument tendered by petitioner C. G. Betenbough dated August 10, 1946, be admitted to probate as the last will and testament of Alice Eva Whitmire.

On May 12, 1958, appellant Alice Joann Hummer filed a petition for letters of administration in the probate court of Lea County, New Mexico. The petition recited the death of Alice Eva Whitmire on May 2, 1958, and that deceased left a will dated May 26, 1941. On May 12, 1958, by order, Alice Joann Hummer was appointed administratrix of the estate of Alice Eva Whitmire and letters of administration issued to her.

On June 20, 1958, C. G. Betenbough filed in the probate court of Lea County a petition for probate of will and revocation of administration, which alleged that Alice Eva Whitmire left a last will and testament dated August 10, 1946. This later instrument left the sum of $1.00 to the testatrix's son Buford R. Horton; bequeathed to appellants, Hummer and Hughes, a one-half interest in certain lands in Lea County; bequeathed to testatrix's sister, appellee Isa McClish, a house and lot located in Lovington, New Mexico; and devised all of the rest, residue and remainder of decedent's estate to C. G. Betenbough and T. Betenbough; their heirs and assigns.

On December 16, 1958, the probate court entered its order revoking the letters of administration issued to appellant Alice Joann Hummer and admitting to probate the last will and testament offered by C. G. Betenbough dated August 10, 1946.

Appellants appealed the decision of the probate court to the district court and said court, on September 13, 1962, entered its decision favorable to C. G. Betenbough, proponent of the August 10, 1946, will. Judgment was entered declaring the August 10, 1946, will as the last will and testament of Alice Eva Whitmire. Appellants then perfected this appeal.

The district court found that Alice Eva Whitmire died May 2, 1958, owning certain real and personal property in Lea County, New Mexico; that on or about August 8, 1946, Alice Eva Whitmire was a resident of Lea County, New Mexico, and that on or about August 8, 1946, the instrument tendered by proponent of decedent's will was prepared by decedent's attorney, Donald Brown; that on August 10, 1946, decedent executed her last will and testament in the presence of W. E. Bondurant, Jr. and James T. Jennings, as attesting witnesses, and complied with all formalities respecting the execution thereof as provided by Sec. 32-104, N.M.S.A., 1941 Comp., and Sec. 30-1-4, N.M.S.A., 1953 Comp.; that at the time such instrument was executed and attested, the testatrix knew and understood the nature and effect of making and executing her last will and testament, understood the nature and extent of the property she then owned, and had an understanding and present recollection of the members of her family; that the preparation and execution of said will and testament was in accord with the instructions and expressed desires of the testatrix, and its execution by her was free and voluntary without duress or undue influence by any person whomsoever.

The district court concluded as a matter of law that the instrument tendered by proponent C. G. Betenbough is the last will and testament of Alice Eva Whitmire and revoked all previous testamentary instruments made by decedent; that the objections to probate of will and revocation of administration by appellant should be overruled; and that all requested findings of fact and conclusions of law submitted by appellants be refused.

On August 10, 1946, the same day decedent executed the will offered by C. G. Betenbough, decedent's son Buford R. Horton filed a petition alleging that Alice Eva Whitmire was an incompetent and prayed that she be declared an incompetent, and that a guardian be appointed for her estate. At the conclusion of the incompetency hearing on August 17, 1946, the district court held that, at the time this suit was filed on August 10, 1946, Alice Eva Whitmire was incapable of handling her property. Judgment was entered decreeing: 'That Alice Eva Whitmire is an incompetent person, the Court having found her so as of the date of the hearing, to-wit: August 17, 1946.' The trial court appointed W. M. Beauchamp guardian of her person and property.

On July 12, 1946, decedent executed a deed conveying all of her property to her brother, C. G. Betenbough and to his wife. On the morning of July 13, 1946, decedent went to the clerk of the district court of Lea County, W. M. Beauchamp, and being disturbed about the deed, asked Mr. Beauchamp what he thought should be done. Mr. Beauchamp told her that the only thing that he could advise was for her to secure an attorney to help her and bring an action to set aside the deed and recover the property.

On July 18, 1946, decedent retained George T. Harris, a practicing attorney in Hobbs, New Mexico, to bring suit to recover the property deeded to decedent's brother. She told Mr. Harris that 'she did not know why she conveyed it to her brother, that she did not mean to do it.' Mr. Harris then prepared and filed the complaint against C. G. Betenbough seeking to revoke the deed.

A few days later, T. Betenbough and decedent came back to see Mr. Harris and T. Betenbough stated that decedent desired to have the suit dismissed. Decedent also stated she wanted the suit dismissed in answer to Mr. Harris' further questions. Mr. Harris refused to dismiss the suit because he believed that T. Betenbough was trying 'to beat the old lady out of her property.' T. Betenbough then stated--'Well, we will get another lawyer and fire you and dismiss the case.' Mr. Harris replied that he would go into court and tell all he knew about the case. T. Betenbough then offered Mr. Harris $1,000 as a fee and Mr. Harris refused, stating he had not earned it yet.

On August 12, 1947, a hearing was held in the district court on the lawsuit filed by Mr. Harris to recover the land deeded by decedent to her brother, C. G. Betenbough. Mr. Beauchamp, who had been named as guardian of decedent's estate in the incompetency hearing, was substituted as partyplaintiff in that action. At the conclusion of this hearing decedent was adjudged incompetent at the time that she executed the deed on July 12, 1946, and at all times subsequent thereto. The trial court found in its judgment that:

'* * * the plaintiff, Alice E. Whitmire, was on the 12th day of July, 1946, and at all times subsequent thereto, up to and including the present date, incapable of managing her business affairs and it is necessary that she have a Guardian for such purpose, and was on said date of July 12, 1946, not in possession of her mental faculties and at the time of the execution of said deed aforesaid was not capable of knowing what she was doing in the execution of said deed.'

On November 19, 1947, the superior court in and for the county of Los Angeles, found decedent to be mentally ill and in need of institutional care, and she was committed to the state hospital in Patton, California, for treatment. She remained there until her death.

The sole appellee on this appeal is testatrix's sister Isa McClish, the rights of C. G. and T. Betenbough having been previously adjudicated by this court in Hughes v. Betenbough, 70 N.M. 283, 373 P.2d 318.

Appellants' sole contention is that there was a lack of substantial evidence to support the findings of the trial court.

In Pentecost v. Hudson, 57 N.M. 7, 252 P.2d 511, this court discussed the substantial evidence rule and stated:

'It is a familiar rule of law which has been applied time and again by this court that the appellate court will not pass upon the weight of the evidence; and if there was a conflict of evidence the findings of the court below would be sustained. Citation of authorities is unnecessary.

'The plaintiff requested the trial court to make certain findings of fact which were refused. These requests are a challenge to the sufficiency of the evidence to sustain the findings made by the trial court. This court, has so repeatedly held that the evidence must be considered in an aspect most favorable to the appellees and that the facts found by the lower court are the facts to be reviewed by us and if supported by substantial evidence they must be sustained, that a citation of authorities is unnecessary.'

In Marchbanks v. McCullough, 47 N.M. 13, 132 P.2d 426, substantial evidence is defined as follows:

'If reasonable men all agree, or if they may fairly differ, as to whether the evidence establishes such facts, then it is substantial. * * *'

In Lindley v. Lindley, 67 N.M. 439, 356 P.2d 455, involving an attempt to set aside gifts on grounds of the donor's mental incompetency, this court cited and quoted from Marchbanks v. McCullough, supra, and Pentecost v. Hudson, supra, and then stated:

'While we believe that the court equally well could have arrived at the opposite conclusion on the matter of the donor's competency, nevertheless this court will not pass on the weight of the evidence. Two psychiatrists testified that the donor was incompetent; three psychiatrists testified that she was competent; innumerable lay witnesses testified on each side; almost all agree that the donor was in frail health and hard of hearing and had a speech defect * * *, which the defendants' expert witnesses testified probably accounted for her apparent confusion at times. To further outline the evidence supporting a...