Porter v. Porter, 6329

• Decision Date: 22 July 1958
• Docket Number: No. 6329,6329
• Parties: Robert P. PORTER, Sr., Plaintiff-Appellee, v. Harry C. PORTER and Robert P. Porter, Jr., Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 360

331 P.2d 360

65 N.M. 14

Robert P. PORTER, Sr., Plaintiff-Appellee, v. Harry C. PORTER and Robert P. Porter, Jr., Defendants-Appellants.

No. 6329.

Supreme Court of New Mexico.

July 22, 1958.

On Motion for Rehearing Sept. 19, 1958.

Further Rehearing Denied Nov. 18, 1958.

K. Gill Shaffer, Louis B. Ogden, Albuquerque, for appellants.

R. C. Garland, E. Forrest Sanders and James T. Martin, Jr., Las Cruces, Charles H. Fowler, Socorro, for appellee.

COMPTON, Justice.

Appellee brought this action for a declaratory judgment to determine the ownership of shares of stock in Robert Porter and Sons, Inc., Robert Porter Investment Company, a corporation, and other property not specifically mentioned, allegedly his separate property. Appellants claim that the property was acquired by appellee, their father, and Alice M. Porter, their mother, now deceased, from whom appellee had obtained a divorce without an adjudication of their property rights.

Appellee and Alice M. Porter were married in 1905 and were divorced in 1936. The separation agreement entered into between them in 1936 specifically states that their property rights were not to be settled thereby. Thereafter, in November 1953, Alice M. Porter died, leaving two sons, the appellants.

We will merely mention the property, as the amount is immaterial to a decision. It is sufficient to say that it is substantial as indicated by the record. At the trial three witnesses testified for appellee, including appellee himself. Appellee testified that the source of the property was $30,000, which he had prior to their marriage. He traced in detail the amount invested by him in various companies, partnerships, and corporations, and the returns therefrom, pyramiding finally in amount of approximately $650,000. His bookkeeper, Herman Pitts, testified to appellee's salary and his income on certain investments. The other witness, George B. Preston, likewise testified to his various business transactions. In addition, two women testified by deposition that before his marriage appellee appeared to be a man of means and owned two business in Las Cruces.

The decisive question is whether the facts bring the case within the purview of Sec. 20-2-5, 1953 Comp., which reads:

'In a suit by or against the heirs, executors, administrators or assigns of a deceased person, an opposite or interested party to the suit shall not obtain a verdict, judgment or decision therein, on his own evidence, in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.'

Interpreting this statute, we have said time and again that the corroborating evidence must be such as would, standing alone and unsupported by the evidence of the claimant, tend to prove the essential allegations or issues raised by the pleadings. The cases are fairly well cited in Vehn v. Bergman, 57 N.M. 351, 258 P.2d 734. Compare, also, In re Cardoner's Estate, 27 N.M. 105, 196 P. 327, and Hendricks v. Hendricks, 55 N.M. 51, 226 P.2d 464. We are forced to conclude that the testimony of the witnesses offered as corroboration, standing alone, offers no support whatever to appellee's testimony with regard to his claim that the property was his separate estate.

Appellee strongly asserts the statute has no application since the action is for a declaratory judgment to determine ownership of real estate and personal property. He relies on our case of Albright v. Albright, 21 N.M. 606, 157 P. 662, 664. The case is not support for the proposition urged. In the Albright case the marital relations continued until the death of his wife, at which time he and a daughter became heirs. The daughter brought an action to partition the estate in which she alleged that her father was one of the heirs. The father claimed that the estate was community property and was permitted to so testify. In sustaining the lower court it was said:

'* * * If the statute applied to this case, we would be required to hold that the testimony of appellee was not sufficiently corroborated to warrant his recovery. But the statute does not apply. This is not a suit to establish any claim against the estate or against the heirs of the estate, but for the partition of real estate. Clearly this statute has no application to a suit between heirs for the partition of the real estate of their ancestor. * * *

'It is clear that the defendant is not within the terms of the statute. He is not an opposite or interested party against the heirs, * * * He is the heir.'

But in the case before us the marital status ended in 1936. Upon her death in 1953, appellee did not become an heir. The appellants then became her heirs. Hence, this is a suit by an opposite party against the heirs.

Perhaps it will serve a beneficial purpose to reconsider Sec. 20-2-5, supra. We note that the cases, as well as the text writers, continually refer to the statute as if it related only to transactions with decedents. The compiler of our own statute heads the section 'Transaction with decedent--Corroboration required.' This heading is somewhat misleading, as our statute reads:

'In a suit by or against the heirs, * * * an opposite or interested party to the suit shall not obtain a verdict, judgment or decision therein, on his own evidence, in respect of any matter occurring before the death of the deceased person * * *.'

We think the legislature expressed a definite purpose in the enactment of Sec. 20-2-5, supra. This conclusion is reached from its history. It first appears as Sec. 8, ch. 12, Laws 1880. The title of the act reads: 'An Act Respecting Witnesses and Evidence.' It must be remembered that prior thereto the common law had been adopted in New Mexico as the rule of practice and decision, Beals v. Ares, 25 N.M. 459, 185 P. 780, and under the common law, an interested party to a suit was not a competent witness. 58 Am.Jur. (Witnesses) Sec. 159. Consequently to avoid its harshness, the common law was limited by Sec. 8, ch. 12, Laws 1880, Sec. 20-2-5, supra, to the extent of permitting an interested party to recover if his testimony is properly corroborated. Later, in 1889, the legislature, still recognizing the rule, passed an Act, ch. 90, making it applicable to the estates of deceased persons. Section 30 of the latter Act, Sec. 31-8-6, 1953 Comp. reads 'In hearing and determining claims against estates the probate judge shall be governed by rule of evidence prescribed in section 2175 (20-2-5).'

It is therefore clear that this statutory rule of evidence is not to be limited or extended by judicial decree. In 1921 in In re Cardoner's Estate, supra, we suggested the fallacy of the rule, but during the 37 intervening years, the legislature has not seen fit to alter it.

It is contended further that appellants waived any objection they may have to appellee's testimony by certain acts of commission and omission, for instance, the failure to object to appellee's testimony, etc. We are not impressed. Appellee, an interested party, was a competent witness in his own behalf and the reception of his testimony was proper. Appellants had no way of knowing there would be failure of corroboration when he testified.

Mention should be made of cases from other jurisdictions which seemingly reach a different conclusion. An examination of those cases clearly shows that the difference is in the statutes, for instance the California statute reads:

'The following persons cannot be witnesses:

'3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim, or demand against the estate of a deceased person, as to any matter or fact occurring before the death of such deceased person.' West's Ann.Code Civ. Proc. Sec. 1880.

The judgment is reversed with direction to the...