Lucus v. Ruckman, 5768

• Decision Date: 11 February 1955
• Docket Number: No. 5768,5768
• Citation: 1955 NMSC 14,59 N.M. 504,287 P.2d 68
• Parties: Leona LUCUS, Plaintiff-Appellee, v. Vernon L. RUCKMAN, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 68

287 P.2d 68

59 N.M. 504

Leona LUCUS, Plaintiff-Appellee, v. Vernon L. RUCKMAN, Defendant-Appellant.

No. 5768.

Supreme Court of New Mexico.

Feb. 11, 1955.

Rehearings Denied Aug. 18, 1955.

Compton & Compton, Morgan & Morgan, Portales, for appellant.

H. R. Parsons, Ft. Sumner, J. V. Gallegos, Tucumcari, (Martin A. Threet, Albuquerque, on rehearing only) for appellee.

LUJAN, Justice.

This is an appeal from a judgment of the District Court of De Baca County setting aside the final decree of the Probate Court of said county, In The Matter of the Estate of Fred C. Ruckman, deceased, No. 440. This appeal is prosecuted to secure a reversal of the trial court's action.

Fred C. Ruckman and Edith Drake, both deceased, lived in the same community in the State of Missouri and visited each other prior to their marriage. In 1896 the appellant (defendant) was born to Edith Drake out of wedlock. In 1898 Fred C. Ruckman, Edith Drake and appellant, then eighteen months old, moved to the state of Oklahoma where all three lived together. In 1901 Fred C. Ruckman married Edith Drake. In 1905 Leona Ruckman Lucus, appellee (plaintiff) was born. In 1908 the family moved to the state of New Mexico where they lived together for many years. In 1941 Edith Drake Ruckman died. On August 19, 1949, Fred C. Ruckman died intestate.

Shortly thereafter appellee applied for and was appointed administratrix of the Estate of Fred C. Ruckman, deceased. In her application she listed herself and the appellant as the sole heirs of the said Fred C. Ruckman, deceased. The application contained the essential jurisdictional averments, and the proceedings, in all things regular, eventuated in a final decree determining the heirship in said estate, which reads, in part, as follows:

'This matter coming on to be heard at Fort Sumner, New Mexico, before this Court on the 1st day of July, 1950, for final settlement, pursuant to the order of this Court entered herein on May 15, 1950, and Leona Lucus, the duly appointed, qualified and acting administratrix of said estate appearing by her attorney, H. R. Parsons and, also as an heir having filed herein her written appearance for this hearing in which she has waived service of notice of this hearing, and,

'It appearing that no one appears to make objection to the final report and account of said administratrix or to the final settlement of this estate and it further appearing that said final report and account is true, correct and complete, and

'It appearing that due, proper and timely notice of this hearing has been given to all persons required by law to be notified and as required by law, and

'It appearing that notice to creditors was duly given herein as required by law and that the first publication of said notice occurred on September 22, 1949, and that no claims have been filed herein and that the time allowed by law for the presentation of claims has expired without any such presentation or without allowance of any claim, and

'* * *

'It appearing that at the time of said decedent's death he was a widower and was survived by the said Leona Lucus, his daughter, and by one Vernon L. Ruckman, his son, as his sole heirs, to whom at the time of decedent's death the aforesaid real property descended in undivided half interest each, and,

'* * *

'It Is Therefore Decreed:

'First, that the final report and account of the administratrix herein be and it is hereby approved and this estate is hereby settled and closed.

'* * *

'Fourth, That the said Leona Lucus and Vernon L. Ruckman, be and they are hereby declared and established to [be] the sole and only heirs of said decedent to whom, as aforesaid, all property, at the death of said decedent, descended in undivided interests as aforesaid.

'Done at Fort Sumner, New Mexico, this 1st day of July, 1950.

'Jack Speakman

'Probate Judge.'

About six months after the foregoing decree was entered, appellee filed a motion in the probate court for the correction of certain clerical errors appearing therein. On January 1, 1951, a nunc pro tunc order was entered correcting said errors.

Thereafter, on June 19, 1952, appellee brought this action against the appellant seeking to set aside the final decree of the probate court. The complaint, among other things, alleged:

'3. That the Defendant, Vernon L. Ruckman, is the son of the Plaintiff's mother, the said Edith Ruckman, and that the said Vernon L. Ruckman was born to Plaintiff's said mother out of wedlock in the State of Missouri about the year 1898 and prior to the time of the marriage of Fred C. Ruckman, and Edith Ruckman, and that said Fred C. Ruckman is not the father of the Defendant.

'* * *

'10. That at all times and until about April 4, 1952 the Plaintiff believed, and was not advised otherwise, that the said Vernon L. Ruckman was her full brother and was the son of her father, the said Fred C. Ruckman, now deceased, and upon said belief the Plaintiff through error and mistake stated in said administration proceedings of the estate of said Fred C. Ruckman, deceased, that Vernon L. Ruckman was a son and an heir of the said Fred C. Ruckman, and the said probate proceedings, including the final decree and the order for correction of clerical errors in the amended inventory and appraisement and the final decree contain said error, which should be corrected by an order of this Court entering a final decree stating that the Defendant is not the son or an heir of Fred C. Ruckman, deceased, and that the Plaintiff herein is the only child and only heir at law of said decedent, Fred C. Ruckman. Copies of said final decree and order for correction of clerical errors in said probate proceedings in Cause No. 440 are hereto attached and made parts hereof as Exhibits 'A' and 'B'.

'11. The Plaintiff alleges on information and belief that the Defendant has known for many years that he is not a son of the said Fred C. Ruckman, now deceased.'

In the prayer appellee prays that the final decree of the probate court and the order for correction of clerical errors be set aside, vacated and held null and void, and that the probate court be ordered to reopen said cause and find that the appellee is the only child and heir of Fred C. Ruckman, deceased, or that the district court enter a decree finding the appellee is the only child and heir at law of said decedent, and that appellant be enjoined and restrained from instituting or proceeding with any action against the appellee that may be based on the claim that the appellant is a son or an heir of said Fred C. Ruckman, deceased.

Many errors are assigned which are argued under seven points. Under point three it is argued that 'the final decree entered by the probate court, as by the nunc tunc order was valid and legal, and the same not having been modified, altered, set aside, or appealed from within the time permitted by law was and is final and conclusive in so far as the same relates to the heirship of decedent; and that said final decree is therefore not subject to attack in this action; and that appellee's complaint should have been dismissed.'

The probate court had authority, in the first instance, to determine the heirship of decedent's estate In re Conley's will (Conley v. Quinn), 58 N.M. 771, 276 P.2d 906, and the final decree of the probate court not having been appealed from within the time provided by law for an appeal, the decree became final and conclusive insofar as the same related to the heirship of decedent.

Appellee's complaint was filed on June 19, 1952, which was approximately two years subsequent to the final decree of the probate court determining the heirship of said estate and approving the administratrix's final report and account. At that time the appellee had the right of appeal to the district court. A trial de novo could have been had in the district court, and the correctness of the judgment, determining the heirship in said estate could have been there relitigated.

The decree rendered by the probate court on July 1, 1950, and the nunc pro tunc order entered on January 1, 1951, correcting certain clerical errors, determining the heirship of Fred C. Ruckman,...