In re Martinez' Will.Martinez v. Martinez

• Citation: 47 N.M. 6,132 P.2d 422
• Decision Date: 21 May 1942
• Docket Number: No. 4634.,4634.
• Parties: In re MARTINEZ' WILL.MARTINEZ et al.v.MARTINEZ et al.
• Court: Supreme Court of New Mexico

47 N.M. 6

132 P.2d 422

In re MARTINEZ' WILL.MARTINEZ et al.

v.MARTINEZ et al.

No. 4634.

Supreme Court of New Mexico.

May 21, 1942.Rehearing Denied Jan. 15, 1943.

Appeal from District Court, Mora County; Irwin S. Moise, Judge.

Proceeding in the matter of the last will and testament of Epimenio Martinez, deceased, wherein a will contest filed by Rafael T. Martinez and others was contested by Doroteo M. Martinez and others.

From a judgment of dismissal, the contestants appeal.

Affirmed.

Where will was admitted to probate in October, 1939, the act effective in June, 1939, shortening time for commencing will contest from year to six months was applicable, so that action to contest filed more than six months after admission to probate was filed too late, in view of rule that will contest is new and independent action, the right to prosecute which does not accrue until admission of will to probate. Comp.St.1929, § 154-211, as amended by Laws 1939, c. 34, § 1.

Mariot H. Murphy, of Santa Fe, for appellants.

Noble & Spiess and Luis E. Armijo, all of Las Vegas, A. Gilberto Espinosa, Dennis Chavez, and Stanley Miller, all of Albuquerque, and H. E. Blattman, of Las Vegas, for appellees.

MABRY, Justice.

This is an appeal from a judgment of the District court of Mora county, dismissing a will contest upon the ground of lack of jurisdiction in the District court to hear and determine the issues. The question of jurisdiction was raised by appellees' demurrer to appellants' petition to contest, and the vital question involved has to do with the applicability of Chap. 34 of the Laws of 1939. This act changes the time within which contest proceedings might be instituted by any person interested from 12 months to 6 months after approval of the will.

Appellants contend that since the case at bar was “pending” at the time of the enactment of the Act of 1939, such act could have no applicability in view of the constitutional prohibition hereinafter to be discussed.

The will in question was denied probate by the Probate court of Mora county on April 15, 1939, and held invalid; and thereafter, and in accordance with law, the Probate judge ordered the will, and testimony taken before him and transcribed, transmitted to the clerk of the District court of the said county for hearing. § 154-209, N.M.Comp.Laws 1929. Thereafter and on Oct. 14, 1939, after hearing, the District court signed an order or judgment approving and admitting the will to probate; and, on Oct. 7, 1940, which was more than six months but less than a year from the date of the entry of the said order or judgment of the District court admitting said will to probate, the contest petition herein involved was filed.

Counsel agree that there is but a single question presented for review by this court, viz., Does § 1 of Chap. 34 of the Laws of 1939, limiting the time to six months, instead of one year as formerly, in which contest proceedings must be commenced, apply to this case? Section 1, Chap. 34, Laws of 1939, upon which the demurrer to the contest petition was based provides:

“When a will has been approved, any person interested may at any time within six months after such probate, contest the same or the validity of the will. For that purpose he shall file in the court in which the will was approved, a petition in writing, containing his allegations against the validity of the will or against the sufficiency of the proof, and praying that the probate may be revoked.”

This act amended § 154-211 of the N. M.Comp.Laws of 1929, but the only change made in the earlier act was that whereby the one-year period allowed for instituting contest proceedings was shortened to six months, as above stated.

It is the contention of appellants that Chap. 34, Laws 1939, has no application to the case at bar because, this being a “pending case”, to apply it here would violate Art. 4, § 34 of the Constitution of New Mexico, which reads: “No act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case.”

We are brought directly, then, to an examination into the one question which this appeal presents, viz., Even though it could be said this is a “pending case” in some sense of the word, was it a pending case in which the “right or remedy” of appellant was affected on June 11, 1939, the date when the amendatory act of 1939 became effective? See Stockard v. Hamilton, 25 N.M. 240, 180 P. 294; State ex rel. State Tax Commission v. Faircloth, 34 N.M. 61, 277 P. 30. If the 1939 Act is to be brought within the prohibition of the Constitution, it must be because it affected the right or remedy of appellants; it could not be claimed that it changed any rule of evidence.

[1] It must be conceded that at common law there was no proceeding by which a will could be contested in the sense we exercise the right and employ the remedy under modern statutes. In re Morrow's Will, 41 N.M. 117, 121, 64 P.2d 1300. Any such right and remedy as now recognized in such contest proceedings, exists only by virtue of statute, and should be strictly construed. 68 C.J. 925.

Appellees argue that since the right to contest is statutory, and that such right does not accrue until after the will has been approved, any statutory change in establishing a bar to such contests unless commenced within the period prescribed, is not antagonistic to the constitutional provision above set out and here relied upon. Appellants, on the other hand, contend that because of the character of the proceeding under our statute, and the language of the statutes which they would apply, that the contest proceeding is nothing more or less than a continuation of the action or proceeding to probate the will and that this is a pending case from the time of the commencement of the petition to probate until the expiration of the time when no further right to contest exists. They rely upon § 154-223, N.M.Comp.Laws of 1929 as well as 154-211 N.M.Comp.Laws of 1929, which is the same as § 1 of the 1939 Act except that by the amendatory act six months instead of one year has been fixed as the period of bar, as we have said. Sec. 154-223 provides:

“Effect of probate. If no person shall, within one year after probate, contest the same, or the validity of the will, or if on such contest the will is sustained, the probate of the will shall have the same effect as a final decree in chancery.”

[2] Appellants contend that since there is no express repeal of this section found in the 1939 Act, it stands as the law, to be reconciled, if possible, with the subsequent enactment of 1939. And, reliance is placed upon this statute in support of appellants' claim that the order of the court in approving and admitting the will to probate is not a final adjudication of the issue or determination of the cause since, the probate does not have “the same effect as a final decree in chancery” until one year has elapsed, and when no person has, within that time, contested the validity thereof. We can not agree with appellants' appraisal of these statutes or the effect achieved by the enactment of Chap. 34 of the Laws of 1939. We hold that the Act of 1939 served to repeal § 154-223, supra.

[3] It is true that repeals by implication are not favored and that where two statutes can be construed together and thus preserve the objects to be obtained by each, they should be so construed. Territory v. Riggle, 16 N.M. 713, 120 P. 318; Territory v. Digneo, 14 N.M. 157, 103 P. 975; James v. Board of Com'rs of Socorro County, 24 N.M. 509, 174 P. 1001, 1003. But, this effect must be given to statutes only when it may be done “without contradiction or repugnancy or absurdity or unreasonableness.” James v. Board of Com'rs of Socorro County, supra. When we examine these two statutes, it becomes clear that they can not be construed so as to give effect to each without contradiction or repugnancy or absurdity or unreasonableness.

[4][5] It is not difficult to understand the purpose which the 1939 Legislature had in mind in shortening the time for commencing such actions when we examine such act in the light of Chap. 136 of the Laws of 1937, passed only two years earlier. Section 1 of the Act of 1937 amended Section 47-505 of the 1929 Compilation so as to shorten the time within which claims against the estates of deceased persons could be presented, from twelve months to six months. Changes affected by the 1937 Act regarding executors and administrators, and as they provided for the closing of estates immediately after the expiration of six months,...