In re Will.

• Decision Date: 26 November 1932
• Docket Number: No. 3671.,3671.
• Citation: 37 N.M. 18,16 P.2d 549
• Parties: In re RIEDLINGER'S WILL.
• Court: New Mexico Supreme Court

37 N.M. 18

16 P.2d 549

In re RIEDLINGER'S WILL.

No. 3671.

Supreme Court of New Mexico.

Nov. 26, 1932.Rehearing Denied Dec. 17, 1932.

Syllabus by the Court.

Where will was admitted to probate, objector in probate court who appealed to district court held entitled to jury trial (Comp. St. 1929, § 154-209).

Statute requiring attestation of will in testator's presence by two or more credible witnesses held not so comprehensive as to impliedly repeal prior existing statutory provisions not repugnant thereto (Comp. St. 1929, § 154-105).

Statute requiring attesting witnesses to have seen testator sign will held not impliedly repealed by subsequent statute (Comp. St. 1929, §§ 154-105, 154-108).

1. A will having been admitted to probate, one who objected in probate court and appealed to district court has right to trial by jury. 1929 Comp. St. § 154-209.

2. 1929 Comp. St. § 154-105 is not so comprehensive of the entire subject of the manner of making and attesting wills as to impliedly repeal prior existing statutory provisions not repugnant to it.

3. 1929 Comp. St. § 154-108 is unrepealed and governs attestation of wills.

Appeal from District Court, Grant County; Patton, Judge.

Proceedings for the probate of the will of Mina F. Riedlinger, deceased, in which P. J. Riedlinger and others, heirs at law, filed objections. From a judgment of the district court sustaining the will and admitting it to probate, on appeal from the probate court, the objectors appeal.

Judgment reversed, and the cause remanded, with directions.

Statute requiring attestation of will in testator's presence by two or more credible witnesses held not so comprehensive as to impliedly repeal prior existing statutory provisions not repugnant thereto, Comp.St.1929, § 154-105.

Frank H. Patton, of Silver City, for appellants.

W. B. Walton and R. M. Wiley, both of Silver City, for appellee.

WATSON, J.

This is an appeal from the judgment of the district court sustaining a will and admitting it to probate.

The matter reached the district court by appeal from a similar decision of the probate court taken by certain heirs at law, the present appellants, who appeared at the hearing, evidently as objectors to the probate of the will.

[1] The district judge overruled a demand of the objectors or contestants for a trial by jury. That action is here assigned as error. It presents a question of statutory construction.

The probate court has exclusive jurisdiction of the probate of wills. 1929 Comp. St. § 34-412. Its decisions are appealable to the district court. Id. § 34-420. If, on the hearing for proving the will, the probate judge “shall be of the opinion that the will is not valid,” he is to certify such opinion with the proceedings to the district court. There the matter is to “stand for hearing de novo *** the same as on appeal, but either party, on demand therefor, shall have the right to a trial by jury on such appeal.” Id. § 154-209. Interested persons may contest the will and pray revocation of probate at any time within one year after such probate. Id. § 154-211. If, on contest, the “probate judge shall be of the opinion that the probate should be revoked,” he is to certify that opinion, with the proceedings, to the district court, and the same proceedings are to be had as when such opinion is arrived at by the probate judge on application to probate the will. Id. § 154-213.

The provisions just referred to are respectively sections 48, 46, 11, 13, and 15 of the Laws of 1889, c. 90. They provide for a trial de novo in the district court of any decision of the probate judge as to admission to probate and revocation of probate. But, where the “opinion” of the probate judge is unfavorable to the will, the jurisdiction of the district court does not arise through an appeal in the ordinary sense of the word. It is an automatic statutory transfer of the jurisdiction, the law refusing to give effect to the adverse opinion of a probate judge. Appellee's position is that it is in that class of cases only that either party may demand a jury. If sustained, it would support the trial court's ruling.

It is true that the language of section 154-209, supra, does not necessarily confer the right upon interested persons in the situation of appellants, who, having objected to the original admission to probate, have appealed from an adverse judgment.

On the other hand, the language does not clearly exclude the right in cases like this. The section wherein the right is conferred (section 154-209) is not dealing with true appeals. But, the same result is accomplished, the only difference being in the method. Jurisdiction having been acquired by the district court, the matter stands “as on appeal.” The subsequent phrase, “such appeal,” may find its antecedent in appeals generally, or in the quasi appeal or removal prescribed in that section.

We may admit that, considering nicety of language and arrangement, appellee has the better of the argument. But, nothing presented or occurring to us suggests the appropriateness, wisdom, or sound policy of distinguishing, as to the right of trial by jury, between these quasi appeals, and ordinary appeals. In the one case, the matter stands “as on appeal”; in the other, it stands on appeal. Always the trial is de novo. The favorable or unfavorable “opinion” of the probate judge cannot affect the result in the district court. It has exactly the same question before it in either case, the validity of the will.

If the right of trial by jury is of value to either party in the one situation, it will be equally so in the other. The winning or losing of the skirmish in the probate court has no reasonable connection with a right to a jury in the battle in district court.

The Legislature has denied effect to the “opinion” of a probate judge adverse to a will; though his favorable opinion, unchallenged by an interested person, may stand. That distinction is plain. Among other reasonable explanations of it, it may be said to suggest a policy somewhat favoring wills. But, there is nothing in the distinction appellee urges to further such policy. The right, whatever it may be, is reciprocal. Either party may claim it.

The logic of the situation constrains us to hold that, in all of these cases in the district courts wherein the purpose is to procure or to revoke the probate of a will, the right of trial by jury has been granted, at the request of either party. The legislative language, while somewhat unfavorable to this view, does not exclude it. To hold that the intention was otherwise is to impute to the lawmaking body an arbitrary distinction, serving no purpose, advancing no interest or policy, and resulting in a degree of absurdity. So we conclude that it was error to deny appellants the right of trial by jury.

[2][3] In the district court there was a difference between counsel as to whether the evidence showed the attesting witnesses to have seen the testator sign the will. On this point the court found favorably to appellee. He did not and does not, however, stand solely upon the findings. He contends that they are unessential because, as he urges, Code 1915, § 5866 (1929 Comp. St. § 154-108), containing such requirement, was repealed by implication by Laws 1921, c. 83. The learned trial judge evidently took that view. The matter might give further trouble in this case if not decided now.

The latest expression of the Legislature as to attestation is: “All wills *** shall be *** attested in the presence of the testator by two or more credible witnesses.” Laws 1921, c. 83, 1929 Comp. St. § 154-105. Theretofore, “the witnesses *** must *** see the testator sign the will. ***” The question is whether the Legislature has abolished the earlier requirement. Not having done so expressly, it can have done so only by implication. What we seek is the legislative intent. Canons of construction may aid but cannot control decision.

Appellants urge the well-known rule that repeals by implication are not favored, that a later statute will be deemed to repeal an earlier by implication only to the extent of repugnancy, and that if the provisions of the two can be harmonized, both must be given effect.

Obviously, there is no inconsistency between the requirement of the later provision that the will be attested by two witnesses in the presence of the testator, and the earlier requirement that the witnesses see the testator sign. They govern different matters.

Appellee urges the equally familiar rule that if the new statute is comprehensive, and intended to exhaust the subject, earlier provisions will be deemed repealed. Coming to particulars, his contention is that the new statute deals comprehensively with the subject-matter expressed in its title, “An Act to Prescribe the Manner of Making and Attesting Wills. ***”

This subject-matter was covered by the following sections of the Code of 1915:

“§ 5858. Any will executed in any foreign jurisdiction, sufficient to convey the title or [of] real estate in such jurisdiction, shall be valid in this State to the same extent as in the jurisdiction where made.” 1929 Comp. St. § 154-102.

“§ 5861. Any person capable of making a will would do better by making it in writing than verbally, but a verbal will may be valid, on condition, that in either case they give it all the validity possible, as well as the freeness of the will, the proof of soundness of mind and entire judgment.”

“§ 5862. The will shall have all the validity required in the previous section; and when made in writing, it shall be signed by the testator, who, if unable or not knowing how to sign, shall request some reliable person to sign for him, and it shall be attested by able and qualified witnesses as provided by the laws prescribing the qualifications of witnesses to give evidence in court or out of court, in this State.”

“§ 5863. In the execution of all wills two or more witnesses shall be sufficient.” 1929...