In re Akin's Estate.Ament v. Watkins

• Decision Date: 28 September 1937
• Docket Number: No. 4276.,4276.
• Citation: 72 P.2d 21,41 N.M. 566
• Parties: In re AKIN'S ESTATE.AMENTv.WATKINS et al.
• Court: New Mexico Supreme Court

41 N.M. 566

72 P.2d 21

In re AKIN'S ESTATE.AMENT

v.WATKINS et al.

No. 4276.

Supreme Court of New Mexico.

Sept. 28, 1937.

Appeal from District Court, Luna County; George W. Hay, Judge.

In the matter of the estate of Martha Chesebrough Burdick Akin, deceased. Contest of a will by Charles Albert Ament against Florence Martha Ament Watkins, and Herman Lindauer, administrator of the estate of Martha Chesebrough Burdick Akin, deceased. Judgment for defendants, and plaintiff appeals.

Affirmed.

In a will contest, evidence that genuine signature of testatrix appeared beneath the attestation clause in will, and was subscribed by genuine signatures of two witnesses, made prima facie proof that execution of will complied with requirements of statute. Comp.St.1929, §§ 154-105, 154-108.

Wilson & Woodbury, of Silver City, and Mae M. Ament, of Alpine, Tex., for appellant.

A. W. Pollard and A. W. Marshall, both of Deming, for appellees.

BRICE, Justice.

This appeal was taken from a judgment of the district court of Luna county in an action to contest the will of Martha C. B. Akin, deceased, adjudging that such will was in fact the will of the testatrix.

A number of grounds were alleged in the petition to defeat the will, but all abandoned except one to the effect that the will was not executed as provided by sections 154-105 and 154-108, Ann.Comp.St. 1929, which are:

“All wills by which any property, real, personal or mixed, is devised or bequeathed, shall be reduced to writing and signed by the testator, or some one in his presence and by his direction, and attested in the presence of the testator by two or more credible witnesses. Provided, however, that any will which has been admitted to probate in any other state according to the laws of such state, shall be admitted in this state in the manner provided by law.” Section 154-105.

“The witnesses to a written will must be present, see the testator sign the will, or some one sign it for him at his request as and for his last will and testament, and must sign as witnesses at his request in his presence and in the presence of each other.” Section 154-108.

The court made numerous findings of fact, most of them evidentiary and unnecessary to a determination of the case; but it is agreed that all facts necessary to support the district court's judgment were proven except the manner of the execution of the will.

The will was dated December 23, 1931; the testatrix died on the 8th day of May, 1935, in Luna county, N. M.; the will was duly probated as the last will and testament of the alleged testatrix, on the 10th day of June, 1935, and the contest petition was filed December 26th following.

The instrument (except the word “witnesses”and their signatures) was in the handwriting of the testatrix and her purported signature thereto was in fact her genuine signature. Beneath her signature was the word “witnesses,” and underneath that word were the genuine signatures of W. P. B. McSain and J. J. Aragon, Jr.

The closing of the will, including the signatures of the testatrix and witnesses, is as follows:

“In witness thereof

“I Martha Chesebrough Burdick Akin have here unto subscribed my hand this day

“Martha Chesebrough Burdick Akin

“December 23rd, 1931

“Witnesses

“Wm. P. D. McSain

“J. J. Aragon, Jr.”

The substance of the district court's findings of fact, Nos. 12, 13, and 14, is: The will was signed by the testatrix as and for her last will and testament on the 23rd day of December, 1931, at the First National Bank of Las Cruces, N. M., in the presence of W. P. B. McSain and J. J. Aragon, Jr., who saw the testatrix sign the same as stated by her, as and for her last will and testament, and, at her request and in her presence and in the presence of each other, the said McSain and Aragon signed the will as subscribing witnesses. That in fact it was duly executed with all the formalities required by the New Mexico statutes.

It is these findings of fact only that are attacked. The question is whether they were established by substantial evidence.

The witness W. P. B. McSain died in 1933, and the only testimony of appellee with reference to the execution of the will was that of Mrs. Florence Watkins, a daughter of the testatrix, and J. J. Aragon, Jr., the only living witness to the execution of the will.

Mrs. Watkins testified that in December, 1931, she took her mother from Deming, N. M., to El Paso, Tex.; that her mother stopped at the First National Bank of Las Cruces to see Mr. McSain, who was an old friend. When her mother came back to the automobile, she said, “That is done.” Witness did not know her mother's purpose in going into the bank; that she had found the will in her mother's home at a place where her mother told her it would be in case of her death; that it was in her mother's handwriting.

J. J. Aragon, Jr., one of the subscribing witnesses to the will, testified that on December 23, 1931, he was an assistant cashier of the First National Bank of Las Cruces; that he had known W. P. B. McSain, the other subscribing witness, since 1928; that he and Mr. McSain saw Mrs. Akin sign her name to the will, and that Mr. McSain and Mrs. Akin were both present at the time he and Mr. McSain signed as subscribing witnesses; that the genuine signatures of himself and Mr. McSain appear thereon; that he signed it in the presence of Mr. McSain and Mrs. Akin, but that he did not know whether at Mrs. Akin's or Mr. McSain's request, or both; that Mr. McSain signed it in the presence of Mrs. Akin and the witness, but he did not know at whose request.

This testimony was greatly weakened by his further examination in which he stated in substance that he had only a faint recollection of what took place; that it was several years ago and he did not remember all the details; that he did not recall where it was signed; that he was often called upon to witness wills and other instruments at the bank and to take acknowledgments; that the signature of Mrs. Akin must have been affixed when he signed as a witness, else he would not have witnessed it; nor would he have done so unless he had been requested so to do. He stated: “I don't remember seeing anybody sign it. Evidently I was asked to witness it or I wouldn't. I don't remember anything about it except, like I said, I witnessed it, and I was asked to witness it. I don't believe I would have witnessed a signature unless the principal signed in my presence and before I signed it as a witness. I wrote to Mr. Pollard (Proponent's attorney) that I did not remember witnessing Mrs. Akin's will. However, my signature appeared on it as a witness. At that time I had no independent recollection of the transaction whatever, and any recollection I have now is based on the fact that my name appears on the instrument as a witness. I don't remember where the paper was signed nor where Mr. McSain and Mrs. Akin were at the time. At that time I was working at the window and Mr. McSain worked toward the front, next to the window. I don't remember whether Mrs. Akin came into the bank. I never knew her, and don't ever remember seeing her. I must have seen her; I witnessed the will. The only way I can fix the date is because it appears on the will. It looks to me like the signatures are written in different ink. I wrote mine with my fountain pen. Mr. McSain's signature is written in a different ink from any of the others. My recollection is based entirely on the instrument itself to a certain extent. I knew what the instrument was when I signed...