In re Teopfer's Estate.Teopfer v. Kaeufer.
| Decision Date | 13 September 1904 |
| Citation | 12 N.M. 372,78 P. 53 |
| Parties | In re TEOPFER'S ESTATE.TEOPFERv.KAEUFER. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
1. In this territory wills may be revoked, not only by a written instrument, as provided in section 1953, Comp. Laws 1897, but also in certain causes by operation of law.
2. The marriage of a testator, whether or not it is followed by the birth of a child, revokes an antenuptial will.
Appeal from District Court, Bernalillo County; before Justice Benjamin S. Baker.
In the matter of the estate of Menna Teopfer. Petition of Henry Kaeufer for letters of administration was opposed by Mary Teopfer. From the judgment, Mary Teopfer appeals. Affirmed.
One Menna Teopfer, then an unmarried woman, made a will on the 11th day of July, 1900, by which she devised all of her property to her sister Mary, and to the children of her said sister, should such sister die before her. On April 8, 1901, she married Henry F. Kaeufer, and on June 13, 1902, she died, leaving surviving her husband. Deceased never had any children as the result of her marriage. Her property remained in her name at her death, and the will had never been revoked by any written instrument. On September 2, 1902, the will was duly filed in the probate court of Bernalillo county by the surviving husband, and at the same time he filed his petition asking that letters of administration be issued to him, on the grounds that the marriage of Menna Teopfer to him, subsequent to the making of the will, revoked the will, and that therefore the deceased died intestate. The application of the surviving husband was opposed by Mary Teopfer. The evidence of the subscribing witnesses to the will was taken by deposition, and was in substance that Menna Teopfer duly signed the will, and that they affixed their names to the same as witnesses in her presence and in the presence of each other; and the judge of probate approved the will, from which Henry F. Kaeufer, appellee herein, prayed an appeal to the district court of the county of Bernalillo, which appeal was granted, bond was given, and the clerk of the probate court certified “a full, true, and complete transcript of the proceedings and all matters relating to the estate of Menna Teopfer, deceased, now on record or on file” in his office, to the district court of the second judicial district. On February 6, 1903, a stipulation was filed in the district court, stating the facts on which the contest of the will should be submitted to the court. Issue of citations was waived, and Mary Teopfer and the minor heirs (her children) entered their appearance by their attorneys. The case came up for argument on the record and stipulation of facts on February 6, 1903, and was continued to give the attorney for Mary Teopfer additional time in which to submit authorities to the court. On February 12, 1903, a motion was made to strike the stipulation from the files of the court, and set it aside, on the ground that it had been signed improvidently, which motion was denied. Motion was then made to strike out certain portion of the record, which was also overruled. On the same day motion to dismiss the appeal was also filed and overruled, and on February 20, 1903, a final judgment was entered in said cause, decreeing that the will of Menna Teopfer was not “eligible to probate” and denying the probation thereof. To this judgment the attorney for Mary Teopfer excepted, and appealed to this court.
Comp.Laws 1897, § 2014, Laws 1901, p. 158, c. 81, § 40, providing that proceedings now provided by law for review in the district court of any decision of a probate court as to a last will and testament shall not be affected, that portion of section 2014 authorizing the party aggrieved by a decision as to a will to appeal to the district court within three months is still in force.
S. B. Gillett, for appellant.
John H. Stingle, for appellee.
MILLS, C. J. (after stating the facts).
Of the seven assignments of error only the sixth and seventh will need any considerable discussion by us, as the others can readily be disposed of.
The first and fifth assignments will be considered as one. The first alleges that the transcript of record from the probate court, filed in the district court, contained no copy of the will of Menna Teopfer, and the fifth alleges that the court erred in declaring said will not “eligible to probate,” because said will was not before the court. Our examination of the transcript of record shows that the will was certified by the clerk of the probate court to the district court. A copy of the will is found on pages 10 and 11 of the transcript, and it is nowhere claimed that is not an exact copy of the original on file in the probate court. The stipulation which is filed in this case shows what the will was, and admits that it was made and executed by the deceased, and that it was filed in the probate court of Bernalillo county. This stipulation or agreed statement of facts is neither the pleadings nor the issues. It is simply the proofs upon which the cause was tried by the district court. Territory v. Santa Fé Pac. R. Co., 10 N. M. 415, 62 Pac. 985.
The second alleged error is that the appeal from the probate to the district court was not taken as required by law, and that the court should have sustained the motion to dismiss the appeal. Section 2014 of the Complied Laws of 1897, providing for appeals from probate courts, was amended by section 40, c. 81, p. 158, Laws 1901; but this amended section expressly provides that it “shall not affect any proceeding or proceedings now provided by law for the review in the district court of any decision of any probate court upon the approval or disapproval of any last will or testament.” Consequently section 2014, Comp. Laws 1897, is still in force so far as appeals in matters relative to the allowance or disallowance of the probate of a will is concerned, and that section provides that in all matters relative to wills any party aggrieved by the decision of the probate court shall have the right to appeal to the district court in the manner provided by law within three months; and section 929, Comp. Laws 1897, provides that “appeals from the judgment of the probate court shall be allowed to the district court in the same manner and subject to the same restrictions as in case of appeals from the district court to the Supreme Court.” This seems to have been done in this case, for an appeal was prayed for and granted, bond was given, and the entire record was sent up, and the whole matter was before the district court for a trial de novo. There was no error in overruling the motion to dismiss.
The third error assigned is that the court erred in refusing to strike our certain parts of the record in regard to the issuance of letters of administration to Henry F. Kaeufer, because that was no part of the record in the matter of the will of Menna Teopfer. We do not consider this point as well taken; nor do we see, even if the learned judge below had allowed it, that it would have made any difference in the decision he arrived at in this case. In his petition opposing the allowance of the probate of the will the appellee herein asked that letters of administration be issued to him; but the probate court, so far as appears from the record before us, never did issue letters of administration to Henry F. Kaeufer, but, on the contrary. Approved the will and continued the application for the issuing of the letters of administration asked for, to which continuance the attorney for Kaeufer then and there excepted. The district court never acted on the matter of the issuing these letters of administration, as no appeal was taken from the action of the probate judge, nor could any have been taken, as no final decision was made by the probate judge.
The next assignment is that the court committed error in refusing to set aside the stipulation between counsel. There was no error in the refusal of the judge of the district court to set aside the stipulation of facts, on which stipulation the case was tried before him. The grounds set up in the motion asking the court to set aside the stipulation are not in our opinion sufficient to have warranted the district court in so doing. After hearing the case argued and after having attentively listened to counsel, we are of the opinion that the stipulation very fairly states the facts of the case, and from an examination of the record and the facts as set out in the briefs of the attorneys who tried the case we believe that the evidence, if it had been heard by the court, would have...
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