In re The Last Will and Testament of Welch, 101520 NMCA, A-1-CA-37121
| Opinion Judge | BRIANA H. ZAMORA, JUDGE. |
| Party Name | IN THE MATTER OF THE LAST WILL AND TESTAMENT OF MARIE G. WELCH, Deceased, v. JAMES WESLEY WELCH; JOE MICHAEL WELCH; and BARBARA GRACE PARKER, Intervenor Defendants/Appellants, PREMIER OIL & GAS, INC. and RALPH S. GRIFFIN, Intervenor Plaintiffs/Appellees, and SAMUEL G. ALDERMAN a/k/a SAMUEL G. ALDERMAN, JR.; RALPH S. GRIFFIN; UNKNOWN HEIRS OF JO... |
| Attorney | Rodey, Dickason, Sloan, Akin & Robb, P.A. Jocelyn Drennan Edward Ricco Albuquerque, NM Thompson & Knight LLP Gregory D. Binns Dallas, TX for Appellee Premier Oil & Gas, Inc. Martin, Dugan & Martin W.T. Martin Jr. Kenneth D. Dugan Carlsbad, NM for Appellee Griffin Montgomery & Andrews, P.A. Sharon... |
| Judge Panel | WE CONCUR: JACQUELINE R. MEDINA, Judge. MEGAN P. DUFFY, Judge, (concurs in result only). |
| Case Date | October 15, 2020 |
| Court | Court of Appeals of New Mexico |
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY William G.W. Shoobridge, District Judge.
Rodey, Dickason, Sloan, Akin & Robb, P.A. Jocelyn Drennan Edward Ricco Albuquerque, NM Thompson & Knight LLP Gregory D. Binns Dallas, TX for Appellee Premier Oil & Gas, Inc.
Martin, Dugan & Martin W.T. Martin Jr. Kenneth D. Dugan Carlsbad, NM for Appellee Griffin
Montgomery & Andrews, P.A. Sharon T. Shaheen Kaleb W. Brooks Santa Fe, NM Kelly Hart & Hallman LLP Harold L. Hensley, Jr. Bill B. Caraway Jeff Kuhnhenn Midland, TX David E. Keltner Marianne M. Auld Matthew D. Stayton Fort Worth, TX for Appellants
OPINION
BRIANA H. ZAMORA, JUDGE.
{¶1} James Wesley Welch, Joe Michael Welch, and Barbara Grace Parker, (collectively, the Welches) appeal the district court's grant of summary judgment quieting title in favor of Premier Oil & Gas Inc. (Premier) and Ralph S. Griffin, and finding that Premier is a bona fide purchaser with respect to the minerals (the Minerals) at issue in this case. On appeal, the Welches argue that the district court erred in granting summary judgment in favor of Griffin and Premier because the wills at issue devised vested future interests in the Minerals to the Welches' predecessors in title, and because the proceeding through which Griffin derived his title to the Minerals is void for lack of proper notice. The Welches further contend that the district court erred in refusing to construe the terms of the 1980 will (the 1980 Will) because the district court misapplied our probate code's statutory bars. For the reasons that follow, we affirm the district court's grant of summary judgment in favor of Premier with respect to its status as a bona fide purchaser but reverse the grant of summary judgment in favor of Griffin.
BACKGROUND
{¶2} A long and complicated chain of events led to the district court's ruling in this case. Nearly two dozen separate individuals and corporations were parties to this case at various points. Purported interests in the Minerals were repeatedly sold and transferred, and multiple claimants to the Minerals passed away during the course of the events we describe below. For the sake of expediency, efficiency, and clarity, we present here only those facts relevant to our ultimate holdings.
A. The Parties
{¶3} At issue in this case are rights of ownership to Minerals located in Eddy County, New Mexico, which derive from Herbert and Marie Welch, husband and wife, who owned the Minerals as joint tenants. Herbert and Marie had no children. The Welches claim title to the Minerals based on devises to their predecessors in interest, Joe H. Welch (Herbert's brother) and Grace Welch Phelan (Herbert's sister) made by Marie and Herbert. Barbara Grace Parker is the granddaughter of Grace Welch Phelan. James Wesley Welch and Joe Michael Welch are the sons of Joe H. Welch.
{¶4} Griffin is Marie's nephew, and claims title to the Minerals through a 2007 heirship proceeding (the 2007 Heirship Proceeding). Finally, Premier claims ownership of the Minerals through purchase; a series of transactions resulted in Premier's ultimate ownership of the Minerals after they were sold by Griffin.
{¶5} While not a party to this appeal, Samuel G. Alderman (deceased) filed the underlying proceeding now subject to this appeal and played an important factual role in this matter. Alderman is Marie Welch's cousin, and claims an interest in the Minerals through devise.
B. The 1974 Will
{¶6} The factual events leading to this appeal began over forty-six years ago. On February 6, 1974, Herbert and Marie Welch executed a joint last will and testament (the 1974 Will). In paragraph two of the 1974 Will, Herbert devised to Marie "all of [his] property of every kind, both real and personal, wherever the same be found or located." However, paragraph six of the 1974 Will provided "[t]hat the survivor shall divide our estate, which is community property, in the following manner, to-wit; the community interest of HERBERT WELCH shall be equally divided between Joe H. Welch, his brother, and Grace Welch Phelan, his sister[.]"
{¶7} After Herbert's death, Marie filed an action to probate the 1974 Will in Eddy County, New Mexico (the 1975 Proceeding). The probate court entered a final decree in the 1975 Proceeding, finding that Marie was the sole beneficiary, heir, devisee, legatee, and interested party with respect to Herbert's estate, and ordering all of Herbert's property distributed to Marie. While serving as executrix of Herbert's estate, Marie executed a mineral deed transferring the Minerals to herself as a "feme sole." The legal description of the minerals set forth in the deed encompasses all of the mineral interests at issue in this case. No person has ever filed a direct challenge to the 1975 Proceeding.
C. The 1980 Will
{¶8} The record suggests that Marie drafted a number of wills, including a 1976 will (the 1976 Will) between the time of Herbert's death, and her own death in 1987. In 1980, Marie executed the 1980 Will, which is the latest will that appears in the record before this Court. The 1980 Will contains the following relevant provisions: ITEM 6.
If owned by me at my death, I give, devise and bequeath my undivided one-fourth (1/4) interest in mineral rights that I received from my deceased husband to Joe H. Welch of Carlsbad, New Mexico; however, if he should predecease me then I hereby give, devise and bequeath that share to the issue of his body per stirpes.
ITEM 7.
If owned by me at my death, I give, devise and bequeath all mineral rights owned by me in my own name on properties in Montana and New Mexico in equal shares to Ralph S. Griffin of Carlsbad, New Mexico and Samuel G. Alderman of Jacksonville, Florida.
Marie named Alderman as her personal representative, and provided Alderman with the original of the 1980 Will shortly after its execution.
{¶9} Marie moved to Florida sometime prior to July 1976. She died on December 27, 1988, in Duval County, Florida. No one attempted to probate the 1980 Will within three years of Marie's death, nor did anyone take steps to dispose of Marie Welch's estate in accordance with the terms of any will or the law of intestacy until 2007. Alderman held that the 1980 Will was in his possession, but did not offer it for probate because he was hiding from creditors.
D. The 2007 Heirship Proceeding
{¶10} Griffin knew that Marie had executed a will in 1976, however he was not aware of its contents, he did not have the will in his possession, and he did not know the identities of any devisees other than himself and Alderman. There is no evidence that Griffin was aware of the 1980 Will. In the months following Marie's death, Griffin attempted to contact Alderman by phone and in writing on several occasions to discuss Marie's estate, and probate of the 1976 Will. In one such letter, Griffin wrote, "I am not sure if you have probated Aunt Marie's will or if she had a new one written since the one dated July 6, 1976 in which uncle Harvey was named executor with you and me as co-executors." Alderman did not respond to Griffin's attempts to discuss Marie's estate by phone and letter, and at some point, his telephone was disconnected. Griffin checked the probate records in Florida to determine if Marie's estate had been probated, but his search revealed no records. Griffin eventually hired a private investigator to locate Alderman in a final attempt to determine the status of Marie's estate, but the private investigator was unable to locate him.
{¶11} On January 16, 2007, more than seventeen years after his efforts to locate Alderman and the 1976 Will proved unsuccessful, Griffin filed a petition for determination of heirship in New Mexico with respect to Marie (the 2007 Heirship Proceeding). In his petition for determination of heirship, Griffin declared that Marie died intestate and that he was Marie's sole heir. Griffin did not make any further efforts to locate Alderman and noticed the 2007 Heirship Proceeding by publication alone, addressing the notice "to the unknown heirs of Marie Griffin Welch[, ]" without naming specific individuals. On March 30, 2007, the court issued a final judgment in the 2007 Probate Proceeding. The district court found that Marie Welch died intestate, that Griffin was her sole heir, and awarded title to the Minerals to Griffin as his sole and separate property. No person has ever previously filed a direct challenge to the validity of the 2007 Heirship Proceeding. [1]
E. The 2012 Proceeding
{¶12} In 2012 Alderman filed a petition for formal probate of will and appointment of personal representative, initiating the present litigation (the 2012 Proceeding). Alderman sought to probate the 1980 Will and obtain title to certain portions of the Minerals. Griffin joined the 2012 Proceeding and opposed Alderman's efforts to probate the 1980 Will and appoint himself personal...
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