Miera v. Akers

• Decision Date: 16 October 1919
• Docket Number: Nos. 2220, 2229, 2230.,s. 2220, 2229, 2230.
• Citation: 184 P. 817,25 N.M. 508
• Parties: MIERA et al.v.AKERS et al.
• Court: New Mexico Supreme Court

25 N.M. 508

184 P. 817

MIERA et al.

v.AKERS et al.

Nos. 2220, 2229, 2230.

Supreme Court of New Mexico.

Oct. 16, 1919.

Syllabus by the Court.

When an instrument purporting to be a will has been declared invalid by the probate court, the district court has jurisdiction to hear and determine its validity after the record of the probate court has been regularly transmitted to it.

The action of the probate court in probating a will may be reviewed under sections 1439 and 5881, Code 1915, either by contest in the probate court or by appeal to the district court.

Section 1438, Code 1915, construed, and held that the record on appeal from the probate to district court is sufficient if properly certified, and the record of the proceedings at the trial in the probate court need not be made a part of the record by bill of exceptions.

Section 1439, Code 1915, construed, and held that there are no formal parties to a cause in the probate court wherein a will is offered for probate, and that the word “party” in the statute means “person” aggrieved. Held, further, that the widow of the deceased is an aggrieved party within the meaning of the statute.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Party.]

Upon appeal from the probate court to the district court from an order or judgment admitting or denying the probate of a will, the cause is tried “de novo.”

The action of the trial court in ordering the removal of appellants as executors held immaterial under the circumstances.

The appointment of an administrator with the will annexed is void, when the persons named in the will, competent to act, are appointed and accept the trust.

Appeal from District Court, Sandoval County; Raynolds, Judge.

A purported will of Epimenic A. Miera, deceased, dated August 19, 1916, was filed for probate, and another purported will, dated July 16, 1916, was filed for probate by Venceslao Miera, and after hearing the probate court admitted the will of July 16, 1916, to probate, and decreed that the will of August 19, 1916, was invalid, and issued letters to John W. Akers and Venceslao S. Miera as executors and ordered that the will, the opinion of the court, and the record in the August, 1916, will case, be transmitted to district court, and the widow, Merejilda de Miera, appealed from the order and from an order appointing Ross Merritt as third executor or as administrator of the estate, and Elisea Montoya appealed from the order admitting the July, 1916, will to probate, and the widow began an action in the district court to have the three executors of the estate removed, and this case and the three appeal cases were consolidated for trial in the district court, and heard with the cause certified by the probate court, and judgments were rendered that the July, 1916, will was invalid, that the August, 1916, will was valid, and that the executors were guilty of neglect of duty, and from such judgments John W. Akers, Venceslao S. Miera and others perfected appeals. Judgments affirmed.

Where an instrument purporting to be a will has been declared invalid by the probate court, the dictrict court has jurisdiction, under Code 1915, §§ 5879, 5883, to hear and determine its validity after the record of probate court has been regularly transmitted to it.

A. B. Renehan and Carl H. Gilbert, both of Santa Fé, for appellants.

Barth & Mabry, of Albuquerque, Marcos C. de Baca, of Bernalillo, and Felix Baca, of Albuquerque (A. A. Sedillo, of Albuquerque, of counsel), for appellees.

PARKER, C. J.

Epimenio A. Miera died in Sandoval county on October 9, 1916, possessed of certain real and personal property. Ten days after his death an instrument purporting to be his last will and testament, dated August 19, 1916, was filed for probate in the office of the clerk of the probate court. On November 25, 1916, another instrument, purporting to be his last will and testament, dated July 6, 1916, was filed for probate by Vencesalo Miera in said court.

Hearings were had in the probate court with respect to both of said instruments, and on January 6, 1917, the probate court admitted the July, 1916, will to probate; decreed that the August, 1916, will was invalid; issued letters to John W. Akers and Venceslao S. Miera, as executors of said estate, and ordered that the will, the opinion of the court, and the record in the August, 1916, will case be transmitted to the district court in conformity to the statute in such cases made and provided.

Merejilda G. de Miera, the widow of the deceased, appealed from the order admitting to probate the July, 1916, will, as well as from another order made by said court appointing one Ross Merritt as a third executor or as an administrator of said estate. Elisea Montoya, named as a legatee and devisee in the August, 1916, will, also appealed from the order probating the July, 1916, will. The widow, on August 23, 1917, instituted an action in the district court for Sandoval county, by which she sought to have the three executors of the estate removed from office on the ground of neglect of duty by them. This cause was docketed in the district court as No. 481. The three appeal cases and cause numbered 481 were consolidated for trial in the district court, and heard with the cause certified to the district court by the probate court and involving the order of the last-named court holding invalid the will dated August 19, 1916. Judgments were rendered by the district court holding, in substance and effect, that the will of July 6, 1916, was fabricated by Venceslao S. Miera after the death of Epimenio A. Miera; that the July will was invalid; that the August will was in all respects valid; and that the executors had been guilty of neglect of duty. From such judgments John W. Akers, Venceslao S. Miera, Onofre Akers, and Estefana Wagner have perfected appeals to this court.

[1] 1. The appellants' counsel challenge the right of the district court to make any order or enter any judgment with respect to the August will on the ground that no appeal was taken by the widow or Elisea Montoya from the action of the probate court in denying the probate of that will. In this jurisdiction the Legislature has wisely seen fit to cause to be reviewed by district courts any order or judgment of a probate court declaring invalid the last will and testament of any person, and this is true whether the decision of the court be made in a contest before it or in an original proceeding before it to probate a will. Sections 5879 and 5883, Code 1915. In the cases at bar, the record discloses that the probate court ordered the record in the August will case to be transmitted to the district court, and that the record was transmitted to and received by that court. Eliminating the proposition as to the sufficiency of the record, there can be no doubt but that the district court was authorized to hear and determine the proposition as to the validity of the August will. It obtained this right of jurisdiction and review, not by virtue of an appeal by any aggrieved party, but by operation of the law.

[2] 2. Appellants contend that the court was without jurisdiction in the matter of the July will. The argument first made is that to acquire jurisdiction the statute must be strictly...