Sanchez v. Torres

• Decision Date: 27 March 1934
• Docket Number: No. 3862.,3862.
• Citation: 38 N.M. 556,37 P.2d 805
• Parties: SANCHEZ et al.v.TORRES et al.
• Court: New Mexico Supreme Court

38 N.M. 556

37 P.2d 805

SANCHEZ et al.

v.TORRES et al.

No. 3862.

Supreme Court of New Mexico.

March 27, 1934.Rehearing Denied Dec. 5, 1934.

Appeal from District Court, Torrance County; Armijo, Judge.

Action by Julian Sanchez and another, minors, by Elena Sanchez, their mother and next friend, against Maria A. de Torres, individually, and such defendant and another as executors of the estate of Macario Torres, deceased. From a judgment of dismissal, plaintiffs appeal.

Reversed and remanded, with direction

Evidence of testator's open, notorious conduct and consent to insertion of his name in birth certificates as children's father held sufficient to show his paternity and recognition thereof. Comp.St.1929, §§ 38-114, 154-112.

J. Lewis Clark, of Estancia, C. R. Brice, of Roswell, and Manuel A. Sanchez, of Santa Fé, for appellants.

George W. Prichard, H. A. Kiker, and A. M. Fernandez, all of Santa Fé, for appellees.

WATSON, Chief Justice.

Macario Torres died testate October 30, 1927. He left all his property to Maria A. de Torres, his widow. Julian Sanchez, born June 23, 1921, and Alejandro Sanchez, born June 29, 1924, sons of Elena Sanchez, appearing in this cause as their next friend, sued to establish rights of inheritance. They claimed to be illegitimate sons of the deceased (1929 Comp. St. § 38-114), and that not having been named or provided for in the will, they are entitled to share in the estate as if their putative father had died intestate (1929 Comp. St. § 154-112).

A former appeal of this cause resulted in a reversal for error in sustaining a demurrer to the evidence at the close of the plaintiffs' case. Sanchez v. Torres, 35 N. M. 383, 298 P. 408, 409.

The cause was reinstated in the district court and came on for hearing before Judge Armijo, sitting for Judge Frenger who had presided at the first trial.

By stipulation, a transcript of the testimony at the first trial was admitted in evidence, excluding only the testimony of Ida Garcia, the local registrar of births, whose testimony was alluded to in the former opinion. The findings are brief:

“First. That at the time complained of by the plaintiffs, the deceased, Macario Torres, was impotent and incapable of becoming the father of the minor children mentioned in the plaintiffs' complaint.

“Second. The court further finds that the testimony in the case, taken as a whole, fails to show that the said Macario Torres generally and notoriously recognized said children as his.”

Upon these findings, judgment was rendered dismissing the cause. Plaintiffs have appealed.

[1] The findings alone are challenged on this appeal. Appellants seek a general review of the record, which they contend will disclose a preponderance of evidence for their claims to be the sons of the deceased and to have had from him general and notorious recognition as such. They cite Davidson v. Enfield, 35 N. M. 580, 3 P.(2d) 979, to the proposition that, a part of the testimony having been given otherwise than in the presence of the court, we “will review the whole record and decide upon the weight of the evidence.”

The case cited does not go to that length. It in fact expresses doubt of the matter. The leading case is Gallup Electric Light Co. v. Pacific Improvement Co., 16 N. M. 86, 113 P. 848, 850, where, as here, the trial court heard part but not all of the testimony. This rule was laid down: “*** the decree *** should not be affirmed, unless it is sustained by substantial evidence which the court heard, unless the additional evidence taken by the examiner shows that the decree was properly made and sustains it by a preponderance of the testimony, and all the evidence should be considered by the court, on appeal, so as to determine whether *** the evidence sustains the judgment ***.”

The rule, thus stated in a case where the trial court had awarded affirmative relief, cannot be applied literally. It should no doubt be applied in principle, where, as here, relief has been denied. To overcome a negative decree, it will be necessary for appellant to show a preponderance of evidence for every fact essential to recovery. And, applying the principle stated, if the court heard the evidence as to some fact, the substantial evidence rule would apply as to it.

[2] It might seem at first that the trial judge did hear all of the evidence as to impotency. So he did, in so far as it went directly to that point. But, while true, of course, that if the deceased was truly impotent he did not beget, it is just as true that if he begot, he was not impotent. So it is the larger question of parenthood that we are to consider. The trial judge heard the evidence only in part, and we must weigh it. The same situation exists when we reach the question of recognition.

As we said on the former appeal, the case involves “*** the usual features of direct evidence of paternity furnished by the testimony of the mother, testimony of association between the mother and the putative father, testimony of contribution by the putative father to the support of the mother and children, testimony of common report in Willard, where the affair took place and the children were born, that the deceased was their father, and testimony of direct and express admission on the part of the putative father in private conversation.”

Actually we had before us the single question of recognition. The district judge had evidently considered, and we assumed, that plaintiffs had satisfactorily shown their ancestry. We have now reviewed the evidence in this regard. We need say no more than that we adhere to the generalization above quoted. Starting there, we must weigh the evidence and inferences contra.

Many, though by no means all, of the witnesses for the plaintiffs were related to them. This is not of great importance, since there is scarcely any direct contradiction of their testimony and no attempt at general impeachment.

As is usual in cases of this kind, defendants were able to produce a number of witnesses who had been more or less in a position to observe and hear, who had not seen or heard the things that the other witnesses had. Little weight can attach to this negative testimony.

The attempt to show that the mother was generally loose in her association with men was, in our judgment, a failure.

[3] Two or three forged documents were offered in evidence on behalf of the plaintiffs. It is urged that this so taints their case with fraud that we should believe none of it. Certainly the plaintiffs themselves had no part in this. It is not shown that the mother had. Assuming, however, that the latter did yield to a temptation to manufacture this evidence, and that she is thus rendered unworthy of credit, the remaining evidence is so strong in corroboration of the main facts to which she testifies, that the fraud must be attributed to an unfortunate effort to multiply proof, rather than to the falsity of the other facts she relates.

We cannot doubt that, from 1918 to the time of his death, the deceased sustained constant and intimate relations with this widow, to whom, during the period, these children were born; that he practically assumed the burden of their support; that his conduct was entirely consistent with, and highly persuasive of, his own entire conviction that the children were his; and that there is no substantial evidence of any other source of their being.

All this comes to naught, however, and mystery results, if the deceased was incapable of procreation.

[4] The claim of impotency rests upon the testimony of his widow and of two physicians. The former testified simply that about ten years before her husband died (about the time when the deceased commenced to maintain another woman in another home) her sex relations with him ceased. Asked, “Do you know why?” she replied, “On account of sickness, I suppose, and his old age.”

Dr. Espinosa testified that the deceased consulted him in 1923, and that he examined and treated him; saying further, in substance, “My first information on physical examination was the history of the case, and he stated to me that he was unable and he was sick, and unable to practice the sexual act. That was the history of the case. He said that condition had existed for some months. I couldn't state how long. Then, upon examination, I found he was very nervous and excitable, worried, and the physical examination also revealed to me that he had the condition which he stated. I think he was a man of 60 or 65; might have been older. He seemed to be weak. I gave him four or five months attention, my treatment having no results. I gave him advice. I put him on a diet and mostly rest, and (told him) to forget about those conditions that existed with him, and forget about his inability to do the sexual act, and rest for a year or so, and that the thing might come back natural. I didn't give him much medical assistance. He visited me once or twice a month. I don't recollect. It might have been he was more cheerful, and built up somewhat, but his main condition it didn't seem to improve.”

Dr. Amble testified that he treated the deceased “practically all the time” from 1915 to 1919. “He was complaining about his strength giving away. It related to the sexual parts. I treated him off and on for that condition. He thus expressed his condition: ‘I am cold, and can't have relations with women.’ I treated him for that trouble. I left Estancia in 1921, but he sometimes came to see me in Mountainair. If I was not there he would see someone else, I expect. Up to January, 1921, he was under my treatment for that trouble off and on. Sometimes he would come once every two or three weeks, and then perhaps there would be a longer spell between. He always complained that that treatment wasn't very good, very effective. I don't believe I ought to say whether he was capable of procreating. That is a pretty hard question. At his age, and the condition he was in, he might and he might not. I...