Perea v. Barela

• Decision Date: 12 February 1890
• Citation: 5 N.M. 458,23 P. 766
• Parties: GARCIA Y PEREAv.BARELA et al.
• Court: New Mexico Supreme Court

5 N.M. 458

23 P. 766

GARCIA Y PEREA

v.BARELA et al.

Supreme Court of the Territory of New Mexico.

Feb. 12, 1890.

Appeal from district court, Dona Ana county; HENDERSON, Judge.

Bill in equity to have declared null and void codicils to a will, and the proceedings in reference to admitting said codicils to probate, and in granting the discharge of the executor, and for discovery. There was a decree for complainant, and defendants appeals.

A clause in a will bequeathing to the wife of the testator “all articles of goods in my house, personal furniture, household furniture, and all that exists therein,” includes a sum of money contained in an iron box and safe in the house, known to be there only by the testator himself, and not mentioned in the will.

Wade & Rynerson and Catson, Knaebel & Clancy, for appellants.

S. B. Newcomb, for appellee.

WHITEMAN, J.

This is a suit in equity, commenced in the district court of Dona Ana county, by Guadalupe S. de Garcia y Perea, widow of Pedro Garcia y Perea, who died February 25, 1887. The decedent left a will written in the Spanish language, of which the following, it is admitted in the record, is a correct translation:

“Last will of Pedro Garcia y Perea. Know all men by these presents, that I, Pedro Garcia y Perea, on this 29th day of January, A. D. one thousand eight hundred and eighty-six, write my last will as my voluntary act under the following rules. (1) I declare that my nephew, Mariano Barela, is the administrator of all my estate, of real estate and personal property. (2) I declare that the house, and now my residence, composed of all the square bounded on the east with the second public street, and on the west bounded with Water street, I grant to my wife, Guadalupe Perea. (3) I also grant to my wife, Guadalupe y Perea, the land and property near the railroad depot, and generally known as ‘Juan Bautista Armijo and Manuel Lopez,’ as it appears in the deed. (4) I also grant to my wife, already referred to, all articles of goods in my house, personal furniture, household furniture, and all therein exists. (5) I also grant her ten cows picked from my property. (6) I grant in favor of the Las Cruces Church, five hundred ewes. (7) My administrator is instructed to pay $50.00 in money for masses for my deceased wife, Romaldita, in case of her death. (8) All notes that may be due me, accounts, claims of whatever nature they may be, my administrator is authorized to collect; and whatever he does shall be sustained. (9) I grant to Cruz Garcia one house, formerly Mariano Molinar's, situated near the Protestants', as it appears by the deeds. I also grant to Cruz Garcia one bay mare that Conception Martinez has, and ten cows, two asses, burros o' burras, (male or female,) as they may be. (10) I grant to Adilaida Flore one hundred ewes. (11) I grant to Gandelaria Garcia one hundred ewes. (12) I grant to Clemente Garcia one hundred and fifty ewes. (13) I grant to Martin Garcia five cows. (14) I grant to Julian Albillar one hundred ewes. (15) I leave to Guadalupe, my wife, one small wagon and two mules. (16) To Jose Angel Sisneros, I leave one hundred ewes. (17) To Clemente Garcia, I leave two asses. (18) $200.00 in money that Jose Maria Padilla owes me, I grant to my niece, Juanita Barela. (19) To Teresa Chave, I leave fifty ewes. (20) All the other property that is not here specified, I grant to my sister, Rafaela Barela, and to my nephew, Mariano Barela. In witness whereof, I sign this myself, in the presence of witnesses, in the town of Las Cruces, this 29th day of January, A. D. 188-.

[Signed] “PEDRO GARCIA X (his mark) Y PEREA.

“In presence of JACINTO ARMIJO, NESTOR ARMIJO, GEORGE BUTSCHOFSKY, PEDRO LASSAIGNE.”

“At the reading of the will, the testator directs that his administrator do sell five hundred ewes, and that they be distributed amongst honest and needy persons, at the will of the administrator. [Signed] PEDRO GARCIA Y PEREA. In presence of the same witnesses: JACINTO ARMIJO, NESTOR ARMIJO, GEORGE BUTSCHOFSKY, PEDRO LASSAIGNE.”

“Territory of New Mexico, county of Dona Ana. On this 29th day of January, A. D. 1886, personally appeared before me the undersigned, having been duly commissioned, qualified, and acting notary public. Pedro Garcia y Perea, whom I personally know to be the same person who signed the foregoing testament and last will in the presence of the witnesses mentioned, and that he signed it in my presence, and declared that he did it voluntarily for the uses and purposes therein stated. In witness whereof, I sign this in the town of Las Cruces, the month and year aforesaid. JACINTO ARMIJO, [seal] Notary Public within and for Dona Ana County, N. M.

“Instructions to the administrator, Mariano Barela: I further declare that my sister, Rafaelita Barela, and my nephew, Mariano Barela, are heirs; and I grant them the following properties: Certain real estate situated in La Mesilla, called a Terreno; the property bought from the Perez, as it appears by the deeds; the properties known as my ranch, as it appears by the deed of purchase, and in the U. S. office; the balance of the stock and animals after paying the donations this day made; all the notes and properties, as it appears by the deeds and my books, except the donations made. I declare that the following witnesses be subpoenaed in the United States office; Mauricio Gamboa, Jose A. Sisneros, Jose Ma Domingues, and Manuel Trujillo,-to prove the right in the U. S. office in the application made by Julian Albillar. PEDRO GARCIA Y PEREA. In presence of JACINTO ARMIJO, GEORGE BUTSCHOFSKY.

“I declare that there is due me:

S. B. Newcomb $500 00 Eugenio Moreno paid part 20 00 Padre Tenorio 75 00 Barbaro Lucero 250 00 (The debts of Jacinto Armijo, J. J. Precia do J. N. Montes, are forgiven.) D. Woods 80 00

“PEDRO GARCIA Y. PEREA. Jan. 29th, 1886. In presence of JACINTO ARMIJO, GEORGE BUTSCHOFSKY.”

The will, after providing for a number of legacies, made Rafaela Barela and Mariano Barela, sister and nephew of the testator, respectively, residuary legatees. The complainant's claims, involved in this case, all arise under the second, third, and fourth paragraphs of the will. On the 28th of February, 1887, the will was probated, and defendant Mariano Barela appointed executor. On the 21st of September, 1887, while the administration of the estate was still pending in the probate court, the complainant filed her original bill of complaint against Mariano Barela as executor and individually, Rafaela Barela, William H. H. Llewellyn, and Thomas Brannigan. Subsequently the case was dismissed as to Llewellyn and Brannigan, and an amended bill was filed on October 12, 1887, against the other defendants. A reamended bill was filed November 2, 1887, which also made Demetrio Chavez, the probate judge, a defendant. At the time of the filing of the reamended bill the administration of the estate had been closed up, and an order made by the probate court discharging the executor from any further liability as such, and also discharging the sureties upon the bond of the executor.

The reamended bill sets up complainant's marriage with the decedent, his death, the execution of the will aforesaid, its admission to probate, and the appointment of Mariano Barela as executor. It also avers that two codicils to the will were approved at the same time as the will, which, she avers, were never executed by the decedent, and are void because not properly executed; that she had no knowledge of the existence of such codicils, and no notice of the attempt to have the same probated until long after the time when she might or could have availed herself of the right and benefit of an appeal from the action of the probate court in the premises; that at the time of the death of the testator, he was entirely free from debt, and that the estate came into the hands of Mariano Barela, executor, unincumbered; and that the said executor failed and refused to file in the probate court any schedule or inventory of the property coming into his hands as such executor. She further avers that by the terms of said will the testator devised to her a certain house and lot situated in the town of Las Cruces, and particularly described in the will, together with everything contained in said house and upon said premises, and also certain other real estate situated in Dona Ana county, near the Las Cruces depot of the Atchison, Topeka & Santa Fe Railroad, known as the “Juan Bautista Armijo and Manuel Lopez Properties,” as described in the deeds to said property, and also ten cows, two mules, and a wagon; that the real estate mentioned in the first codicil to said will as the real estate bought of Perez is a part of the Juan Bautista Armijo tract, which was devised to her by the decedent, and that under the said first codicil the said Mariano Barela claims said land; and that Demetrio Chavez is the probate judge of Dona Ana county, who admitted the said codicil to probate. She further avers that, at the date of the death of her husband, there were, among other things, in the house and lot devised and bequeathed to her, an iron box and an iron safe which belonged to the testator, and which, together with their contents, became her property under the terms of said will, and also that there were on and contained in said premises so devised to her a buggy and two horses, which became her property by the terms of said will; that shortly after the death of her husband, and while she was still suffering and prostrated by reason of his death, and ignorant of her rights under the will, the defendant Mariano Barela came to her house, and, under pretext of obtaining documents and papers belonging to the testator, opened said iron box and said iron safe, and without her consent took therefrom and carried away a large sum of money which belonged to her, the amount of which she could not state, but believed it amounted to the sum of $ 25,000; that the...