In re Will.

• Decision Date: 22 November 1937
• Docket Number: No. 4252.,4252.
• Citation: 41 N.M. 723,73 P.2d 1360
• Parties: In Re MORROW'S WILL.
• Court: New Mexico Supreme Court

41 N.M. 723

73 P.2d 1360

In Re MORROW'S WILL.

No. 4252.

Supreme Court of New Mexico.

Nov. 22, 1937.

Appeal from District Court, Colfax County; M. A. Otero, Jr., Judge.

Proceeding by John Morrow, Jr., and others against the First National Bank in Raton and others, to contest the will of Mary J. Morrow. From an order dismissing the contest, petitioners appeal.

Reversed and remanded, with instructions.

In will contest by nephews and nieces of testatrix' deceased husband and by executrix of estate of husband's brother, claiming property inherited by testatrix from husband as his separate property, demurrer, stating that petition failed to show applicability of statute governing descent of such property, was too general to raise question of failure of petition to allege that testatrix' husband left no child or descendants of a child or that his parents were both dead. Comp.St.1929, §§ 68-410, 105-412, 154-211.

Hugo Seaberg, of Raton, and Reid & Iden, of Albuquerque, for appellants.

Crampton & Robertson, of Raton, for appellee First Nat. Bank in Raton.F. S. Merriau, of Raton, for appellee Anna Doogan.Fred C. Stringfellow, of Raton, guardian ad litem for appellee Margaret Jean Sweeney, a minor.

PER CURIAM.

Upon consideration of appellees' motion for rehearing, we have withdrawn the original opinion and substituted the following as the opinion of the court:

Opinion.

BRICE, Justice.

A demurrer was sustained to appellants' petition to contest the will of Mary J. Morrow, deceased. They declined to amend and the contest was dismissed. From the order of dismissal this appeal has been prosecuted.

The first paragraph of the petition is as follows: “Now come John Morrow, Jr., Ruth Morrow Hart as the executrix of the estate of John Morrow, Sr., Raymond Morrow, Ruth Morrow and James Morrow, all residents of the County of Colfax, State of New Mexico, as petitioners interested in the property of the deceased, Mary J. Morrow, attempted to be disposed of in the herein described will, and hereby contest the supposed and purported will presented to this court for probating by the First National Bank in Raton, of Raton, New Mexico, and because of the common and general interest of each and all of the heirs at law of the said Mary J. Morrow, hereinafter mentioned and described, these petitioners file this petition in their own behalf and in behalf of each and every one of the hereinafter described and interested persons, stating and describing each interest separately and individually; and the said contestants aver:”

The additional facts alleged in the complaint are in substance as follows:

John Morrow, Sr., of Wisconsin, died July 6, 1915, leaving surviving him four sons and one daughter, to wit: Julia Sweeney, Henry Morrow, Thomas E. Morrow, John Morrow, Sr., of New Mexico, and James Morrow. Fred Morrow of Wisconsin and Thomas Morrow of Colorado are the sons of James Morrow above mentioned. Thomas E. Morrow died intestate in Colfax county, N. M., on the 15th day of October, 1925, leaving surviving him Mary J. Morrow, his widow (the deceased). Ruth Morrow Hart, Mary Morrow Adams, John Morrow, Jr., Raymond Morrow, and James Morrow, all of New Mexico, are the sons and daughters and heirs at law of John Morrow, Sr., of New Mexico, who died February 25, 1935, of whose will Ruth Morrow Hart is the duly qualified and acting executrix, appointed by the probate court of Colfax county by an order entered April 6, 1935. All the above-named persons are interested in the estate of Mary J. Morrow and in the will herein described. Mary J. Morrow died the 7th day of January, 1935.

The property involved in this suit was inherited by Mary J. Morrow, deceased, from her deceased spouse, Thomas E. Morrow, of New Mexico, who inherited said property from his deceased father, John Morrow, Sr., of Wisconsin, and it was therefore the separate property of said Thomas E. Morrow of New Mexico at the time of his death.

The will of Mary J. Morrow, deceased, dated the 10th day of May, 1934, was filed for probate in the county of Colfax, and admitted to probate by order of the probate court of that county on the 18th day of February, 1935. The subscribing witnesses, E. Christiansen and Harry McBride, were each disqualified to act as a witness because among the persons and corporations receiving benefits and legacies under said will, in that they were stockholders, agents, and trusted employees of the beneficiary of the will, the First National Bank in Raton; and each are interested in said will and property devised and bequeathed thereby.

[1] At the time of the execution of the will of Mary J. Morrow, she was not of sound memory and disposing mind, but was of such age and extreme condition of mental and physical weakness that she was not capable of making a will. At said time and long prior thereto she was in poor health, unable to transact important business and not of mental capacity sufficient to enable her “to know her obligations to the natural objects of her bounty or the character or value of her estate nor to enable her to dispose of it according to a fixed purpose of her own.” That she had great confidence in the integrity of the officers and employees of the First National Bank in Raton, and by reason thereof called upon them to assist her in preparing her will. That by undue influence of said officers and employees, they procured her to make the present will, by which practically all of her property was devised and bequeathed to the First National Bank in Raton, as trustee, to be held for a period of ten years to the exclusion of the heirs at law, except Anna Doogan, a sister of the deceased. That said purported will was not the free and voluntary act of the decedent, but was procured by the improper and undue influence of said bank. The demurrer admitted these alleged facts. The court in its order probating the will found that Mary J. Morrow at the time of her death left no children or direct descendants.

The grounds of the demurrer are as follows:

First. That petitioners do not allege facts from which it can be determined that appellants are “persons interested,” as contemplated by the statute; in that the facts pleaded, if proven, would not establish that appellants are heirs at law of Mary J. Morrow, deceased.

Second. That, assuming the facts alleged are sufficient to show that appellants are heirs at law of Mary J. Morrow, deceased; yet they are not “persons interested” in contemplation of section 154211, Ann.Comp.St.1929, because they were not such heirs at law until after the will of Mary J. Morrow, deceased, had been probated.

The statute in question is: “When a will has been approved, any person interested may at any time within one year 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 proved, 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.”

The claim of interest is made as heirs of Mary J. Morrow, deceased, under section 68-410, N.M.Comp.St.1929, the material part of which is as follows:

“If a deceased person is a widow, or widower, and leaves no issue, ***

“If the estate, or any portion thereof, was separate property of such deceased spouse, while living, and came to such decedent from such spouse by descent, devise, or bequeath, such property goes in equal shares to the children of such spouse and to the descendants of any deceased child by right of representation, and if none, then to the father and mother of such spouse, in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such spouse and to the descendants of any deceased brother or sister by right of representation.”

The last-stated ground of demurrer raised the principal question, which will be disposed of first.

So that the issue will be clearly stated, we copy the following from appellee's brief: “As indicated above, it may be conceded that (assuming John Morrow, Sr., of New Mexico himself had an interest) if he had died after Mary J. Morrow but before her will was probated, then the present contestants would have been ‘interested’ in the probate of the will and would consequently have been entitled to file a contest petition. *** We contend that where the testator's heir dies or makes an assignment prior to probate, his heirs, personal representatives, or assigns acquire an interest sufficient to enable them to contest. But if the testator's heir dies after probate or attempts to make an assignment after probate, the heirs, personal representatives, and assigns have no interest sufficient to entitle them to contest the will. Much confusion has resulted from a failure to note this important distinction.” (Appellees' italics)

Appellees contend in other words, though the appellants are in fact “interested persons,” yet because they did not become interested until after the will was probated, they are deprived of the right to prove (if they can) that the instrument probated as the last will and testament of Mary J. Morrow was in fact not her will; though the will was forged or executed by means of duress, fraud or undue influence, appellants must be deprived of rights which it is conceded are theirs. We cannot conceive of any reason for such discrimination on the part of the Legislature, and no such construction should be adopted unless the wording of the statute requires it.

In Re Baker's Estate, 170 Cal. 578, 150 P. 989, 992, in holding that the personal representative of the contestant of a will should have been substituted for him upon his death, it is stated: “Such in its general aspects is the nature of the proceeding for the contest of a will. Specifically our law provides (Code Civ.Proc. 1327) that ‘any person interested’ may contest a will which has been admitted...