In re Will.

• Decision Date: 22 May 1943
• Docket Number: No. 4731.,4731.
• Citation: 47 N.M. 173,138 P.2d 1001
• Parties: In re TOWNDROW'S WILL.
• Court: New Mexico Supreme Court

47 N.M. 173

138 P.2d 1001

In re TOWNDROW'S WILL.

No. 4731.

Supreme Court of New Mexico.

May 22, 1943.Rehearing Denied June 30, 1943.

Appeal from District Court, Eighth District, Colfax County; Kool, Judge.

Proceeding to contest the will of Emma F. Towndrow, deceased. Judgment for contestees, and contestants appeal.

Affirmed.

In proceeding to contest will on ground that district court, to which proceeding for probate of will was removed from probate court, had no jurisdiction to enter order admitting will to probate because copies of notice of probate proceeding were not mailed to testatrix's nonresident heirs, as required by statute, where affidavits and files in such proceeding are not in evidence, Supreme Court will presume, in support of district court's judgment, that names of such heirs do not appear in proponent's affidavit and cannot be ascertained from files in probate proceedings so as to render published notice, addressed “To Whom It May Concern,” sufficient. 1941 Comp. §§ 32-204, 32-206, 32-203.

Hugo Seaberg, of Raton, for contestants.

Wilson & Wright, of Raton, for contestees.

BRICE, Justice.

This proceeding was brought to contest the probated will of Emma F. Towndrow, deceased, under Sec. 32-212, New Mexico Statutes, 1941, which is as follows: “Contest of probate.-When a will has been approved, any person interested may at any time within six (6) 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 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.”

From an adverse judgment petitioners have appealed.

No evidence was introduced and the cause was tried upon the undenied allegations in the petition and answer. From these pleadings, and admissions in the briefs, we deduce the following admitted facts:

Emma F. Towndrow died in Colfax County, New Mexico, in May, 1940, leaving an estate consisting of real and personal property. Her husband, Arthur Towndrow, predeceased her. Neither of them left issue, and their respective parents predeceased them.

Arthur Towndrow had nine brothers and sisters, of whom two brothers are dead, leaving children. Five of his brothers and sisters are petitioners in this contest proceeding. The heirs at law of Arthur Towndrow consisted of his seven living brothers and sisters and ten nephews and nieces, who are children of his deceased brothers. His living brothers and sisters and a nephew and a niece are residents of Colfax County, New Mexico, and eight nephews and nieces are residents of the states of New York and Connecticut. There are, therefore, eighteen living persons who were heirs at law of Arthur Towndrow and who, it is claimed by contestants, are heirs at law of Emma F. Towndrow, deceased. They will be referred to herein as the Towndrow heirs.

During the marriage of Arthur Towndrow and Emma F. Towndrow, they accumulated community property, and upon the death of Arthur Towndrow intestate, Emma F. Towndrow (they having no children) succeeded, as his widow, to the ownership of their community property, by virtue of the descent and distribution statutes of this state. The property which was devised and bequeathed in the probated will of Emma F. Towndrow was substantially the same property which was owned in community by her and her husband during his lifetime.

The will in question was duly filed for probate in the probate court of Colfax County, as provided by Sec. 32-202, N.M. Statutes, 1941, which is as follows: “Probate judges, in their respective counties, are authorized to probate wills, by receiving the evidence of the witnesses, who were present at the time of making the same, and all other facts in relation to the investigation of the validity thereof.”

A day was fixed for the probating of the will as required by Sec. 32-203, N.M. Statutes, 1941, which is as follows: “After the will is produced and read, the probate judge or county clerk shall ascertain from the will, and by the affidavit of the person producing the same and any other satisfactory evidence that may be obtained, the names and residences of the widow or husband or heirs-at-law of the decedent, who of such are minors, and the names and residences of their guardians, if any, and shall thereupon fix a day for proving the will, which day shall be during a term of the probate court and may be postponed from time to time, in the discretion of the court.”

None of said Towndrow heirs was personally served with notice of the hearing at which the alleged will of Emma F. Towndrow was probated, nor was such notice mailed to any of them, though none of them waived service of notice or entered his appearance in the proceeding to probate said will, or was present at the hearing thereof in person or by attorney.

The county clerk, however, issued and published a notice of such hearing, as provided by Sec. 32-204, N.M. Statutes, 1941, (old trial court rule 154-204), which is as follows: “The county clerk shall issue a notice of the time thus fixed, signed by himself under the seal of the probate court, said notice being entitled ‘Last Will and Testament of -’ (giving name of the decedent,) and being addressed ‘To Whom It May Concern,’ which notice shall be personally served upon the heirs-at-law, the guardians of any such heirs who are minors, *** so far as they are resident within the state, at least ten days before the day of hearing. Such notice shall also be published in some newspaper published in the county, if there be one, once a week for four consecutive weeks, the last publication of which shall be at least three days before the time fixed for such hearing. ***”

After the publication of notice of the day fixed for probating the will, the proceeding was removed to the District Court of Colfax County as authorized by Secs. 16-419 and 16-420, N.M. Statutes, 1941, and thereafter the District Court assumed jurisdiction of the entire proceeding, and entered its order admitting the will in suit to probate, and denied the probate of a prior will.

[1] In this state there are two separate and distinct methods provided for reviewing the action of the probate court in admitting a will to probate, in each of which the will and its probate may be contested. The first is by an appeal or transfer of the proceedings from the probate court to the district court, and the second by the statutory proceeding for the contest of wills. Miera v. Akers, 25 N.M. 508, 184 P. 817.

The appellants have resorted to the latter method. Numerous grounds of contest were alleged in the petition, but all were abandoned except one questioning the jurisdiction of the district court to enter the order of probate, in that statutory notice had not been served upon or mailed to certain of the Towndrow heirs.

The basis of this assertion was the failure to have personally served, notice of the proceedings to probate the will upon the resident Towndrow heirs, as required by Sec. 32-204, N.M. Statutes, 1941, supra; and by the alleged failure to mail a copy of the notice to each of the non-resident Towndrow heirs, as required by Sec. 32-206, N. M. Statutes, 1941, which is as follows: “If it shall appear from the affidavit of the person producing the will for probate or otherwise from the files in said proceeding that any of the interested parties are nonresidents of the State of New Mexico, a copy of such notice of probate shall be mailed to each of those whose residence is shown in such affidavit or can be otherwise ascertained from the files in such proceeding, at least ten days before the date of hearing. ***”

[2] The Towndrow heirs as a class are heirs-at-law of Emma F. Towndrow, deceased, and in the absence of testamentary disposition inherit one-half of the property in question, by virtue of Sec. 31-116, N. M. Statutes, 1941, which is as follows: “If a deceased person is a widow, or widower, and leaves no issue, and the estate, or any portion thereof, was community property of such decedent and his or her deceased spouse, while such spouse was living, such property goes in equal shares to the children of such deceased spouse and to the descendants of such children by right of representation, and if none, then one-half of such community property goes to the father and mother of such decedent 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 decedent and to the descendants of any deceased brother or sister by right of representation, and the other half goes to the father and mother of such deceased 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 deceased spouse and to the descendants of any deceased brother or sister by right of representation ***.”

In re Morrow's Will, 41 N.M. 723, 73 P.2d 1360; Harlan v. Sparks, 10 Cir., 125 F.2d 502.

[3] Heirs-at-law of a deceased person are those who,in the absence of testamentary disposition, succeed to his estate of inheritance under the statutes of descent and distribution. Connertin v. Concannon, 122 Or. 387, 259 P. 290; Abrahams v. Abrahams, 219 Ala. 533, 122 So. 625; Albright v. Albright, 116 Ohio St. 668, 157 N.E. 760. The phrase does not necessarily mean heirs at common law, (In re Aspden's Estate, 2 Fed.Cas. 37, Cas. No. 589) which meant those persons who succeed to a deceased person's real estate in case of his intestacy.

[4] The affidavits and files of the probate court in the proceeding to probate the will are not in evidence, and we are therefore unable to say that the names of any of the Towndrow heirs-at-law who were non-residents of this State are shown by the affidavit of the person producing the will, or appear in the files in that proceeding. If their names do not...