In re Garcia's Estate.Montoya v. Dunlap

• Decision Date: 27 November 1940
• Docket Number: No. 4567.,4567.
• Citation: 107 P.2d 866,45 N.M. 8
• Parties: In re GARCIA'S ESTATE.MONTOYAv.DUNLAP et al.
• Court: New Mexico Supreme Court

45 N.M. 8

107 P.2d 866

In re GARCIA'S ESTATE.MONTOYA

v.DUNLAP et al.

No. 4567.

Supreme Court of New Mexico.

Nov. 27, 1940.

Appeal from District Court, Santa Fe County; David Chavez, Jr., Judge.

Proceeding in the matter of the estate of Kittura W. Garcia, deceased, by Melinda B. Montoya, petitioner, opposed by Charles Dunlap and others, respondents, wherein petitioner sought to establish a right to deceased's estate based upon an alleged unfulfilled agreement by deceased to adopt petitioner. From a judgment sustaining respondents' motion to dismiss, treated as a demurrer to the evidence, petitioner appeals.

Reversed and remanded with directions.

On respondents' demurrer to petitioner's evidence, case was not ripe for decision by chancellor weighing evidence and exercising his judicial discretion in saying whether, tested by certain principles, relief should be awarded or denied petitioner.

Reed Holloman and Albert H. Clancy, both of Santa Fe, for appellant.

F. A. Catron, of Santa Fe, for certain appellees.Geo. D. Pollock, of Salinas, Cal., and Harry S. Bowman, of Santa Fe, for certain appellees.L. C. White, of Santa Fe, for certain appellees.

SADLER, Justice.

Did the trial court err in sustaining the motion to dismiss, treated as a demurrer to the evidence, which the heirs at law of Kittura W. Garcia, deceased, interposed when Melinda B. Montoya in an effort to establish her claimed right to the entire estate of decedent, rested in the attempted proof of an agreement to adopt? This is the question presented for decision.

The matter arose in the district court of Santa Fe County where proceedings upon the estate of Kittura Garcia, deceased, were pending upon removal from the probate court of said county. Decedent's administrator filed a petition for determination of heirship upon which notice was duly given. In response to such notice the appellees filed their claims of heirship based on blood relationship and appellant filed her claim to heirship based upon an unfulfilled agreement to adopt.

In her petition, the said Melinda Montoya, the appellant, sets forth that when a child about seven years of age, Marcelino Garcia and Kittura W. Garcia, his wife, agreed and contracted with her paternal uncle with whom she was then living and who stood in loco parentis toward her, that they would take her into their home, and adopt, rear, educate and in every way treat and do for her as if she were their own child; that at the time of such agreement her mother was dead and she had been abandoned by her father, who, nevertheless, himself consented to the promised adoption.

Petitioner then alleged that pursuant to such promise the said Marcelino and Kittura Garcia took her into their home and family life, assumed all responsibility for her maintenance and care, and educated and at all times subsequent to such agreement did for her in every way as if she were their own child and held her out to others and treated her as such. Then follow allegations that the adoptive parents failed to take the legal steps provided by law for her adoption and failed to comply with their agreement and promise of adoption.

For purposes of this case it is agreed that the appellees represent the sole heirs at law of the decedent and are entitled to her estate based upon the varying degrees of blood relationship shown, unless the appellant ultimately establishes her right thereto for breach of the claimed agreement to adopt. The narrow question, as already indicated, is whether upon resting she had presented a prima facie case in support of the allegations of her petition sufficient to withstand the appellees' motion to dismiss treated as a demurrer to the evidence. This takes us at once to an analysis of the state of the proof.

The evidence disclosed that the said Marcelino Garcia and Kittura Garcia were husband and wife and childless, remaining so throughout their lives. They had been married nine years when the appellant was orphaned by the death of her mother in March, 1897. She was the eldest of four children, two boys and two girls, and at the time of her mother's death was at the home of a paternal uncle where she remained for about four months. This uncle was himself the father of ten or eleven children, residing in the home with him and his wife, their mother.

About four months following the death of her mother and when appellant was about seven years of age, she was taken into the home of Marcelino and Kittura Garcia, who treated her just as if she were their own child. They immediately placed her in school. She continued to reside in the Garcia home after first being taken into it, until August 14, 1905, the date of her marriage, except for a brief absence of about a week at the home of this uncle, as next related.

About two years after entering the Garcia home, and due to childish pique at a scolding from Mrs. Garcia for tardiness in reaching home from school, the appellant returned to the home of her uncle. Within a few days Marcelino Garcia went to the uncle's home and returned her to his own home. When he called at the uncle's home for the child, the uncle said to him: “You must adopt her this time.” To which statement Marcelino Garcia replied: “Yes, I will.”

Both at the time the Garcias first took appellant into their home and at the time Marcelino Garcia went for her to the uncle's home, as just related, the natural father of appellant was confined in the New Mexico State Penitentiary serving a life sentence for the commission of a felony.

From the time appellant was taken into the Garcia home, with an exception hereinafter to be noted, she always went under the name of “Melinda Garcia”. The Garcias provided and cared for her as if she were their own child, educated her, sending her to Loretto Academy in Santa Fe for three years, where she was registered and known as Melinda Garcia. Marcelino Garcia personally accompanied her to Loretto Academy on entering her there as a student and stated to the Mother Superior that she was not his own child but an adopted child. Each of the Garcias with whom the Mother Superior of the school was well acquainted, always spoke to her of the child as “my adopted daughter.” The Garcias always introduced or spoke of appellant to others as their daughter or adopted daughter and both were heard to say on more than one occasion that they had adopted her with her father's consent.

Conforming to a Spanish custom, shortly before the announcement of the engagement of appellant and her husband, the latter's father addressed a letter to Marcelino Garcia, treated as appellant's father, asking the hand of the latter's daughter in marriage to the writer's son. Consent was reluctantly given, the Garcias objecting to a marriage at the time because of appellant's extreme youth. It was necessary, because of her age, that she have the consent of her parent or guardian and upon a printed form prepared for endorsing such consent on the application for license, Marcelino Garcia, described as “the parent (or guardian) of” the appellant, signed a written consent to her marriage.

There was only one instance after appellant was taken into the home of Marcelino and Kittura Garcia that she ever employed the name under which she was born or went under any other name than that of “Melinda Garcia.” When she and her fiance were making application for a marriage license, she was about to sign the application “Melinda Garcia”. Father Raberole, Pastor of Guadalupe Church in Santa Fe, who was present, informed her that she should sign under the name by which she was christened. Acting upon this advice, she did so.

Following the marriage, the appellant and her husband resided near the Garcias in a home given her by Marcelino Garcia as a wedding present. Later, this home was exchanged for one next door to the Garcias and still later this home was sold and another purchased and occupied just across the street from them. The appellant displayed toward the Garcias the affection of a child for its parents, always referring to Kittura Garcia as “mamma” and the Garcias referring to appellant as either their daughter or adopted daughter and to appellant's children as their grandchildren and being referred to by these children in return as their grandparents.

When Marcelino Garcia was nearing death and a night or two before his removal to a hospital where he died within a short time, he requested of a friend who was attending him at night that he send for the appellant. This friend related what took place as follows: “A. He told me like this: ‘Mr. Thayer, I think my time has come and I want you to call one of my family.’ I said: ‘Who do you want, your sister?’ because Marcelino's sister lived only a little ways from there, ‘or your brother?’ He says: ‘No I want my daughter, you go and call Melinda.’ I went out and knocked at the door and I called her and she said she would come over, and when she came over there, I don't recall exactly what took place, but, however, he reached under the pillow and took a big purse that contained money and handed it to her, and he says: ‘I want you to have this, and nobody else’.”

Marcelino Garcia died on April 11, 1929. Kittura W. Garcia, his wife died intestate on June 29, 1936. For about ten weeks prior to her death she was bedfast and throughout that period the appellant and her two daughters ministered to her needs and wants. It may be added that throughout the period appellant resided in the Garcia home she helped clean house and did chores and other work around the place for which she neither asked nor received pay.

[1] Counsel for the appellant invoke against appellees the rule governing upon a demurrer to the evidence as stated in Dickerson v. Montoya, 44 N.M. 207, 100 P. 2d 904, and insist the evidence disclosed a prima facie case, rendering it error for the trial court to sustain the motion to dismiss. This rule, long applied here, is stated in the Dickerson case as...