Seymour's Estate, Matter of, No. 12386

Docket NºNo. 12386
Citation600 P.2d 274, 93 N.M. 328, 1979 NMSC 69
Case DateSeptember 06, 1979
CourtSupreme Court of New Mexico

Page 274

600 P.2d 274
93 N.M. 328
In the Matter of the ESTATE OF Lois Faye SEYMOUR, Deceased.
Dale Allen SEYMOUR, Individually and as Special
Administrator and Personal Representative, Vicki
McClintic and Andrew J. Gonzales, Petitioners,
v.
Jay Lynn DAVIS, aka Jay Davis, Respondent.
No. 12386.
Supreme Court of New Mexico.
Sept. 6, 1979.

[93 N.M. 329]

Page 275

Clayburgh, Ashby, Rose & Paskind, Stewart Rose, III, Albuquerque, for petitioners.

John P. Dwyer, Albuquerque, for respondent.

W. Garrett Flickinger, Pamela Minzner, U. N. M. School of Law, Albuquerque, amicus curiae.

OPINION

PAYNE, Justice.

This dispute arose over the admissibility to probate of Lois Faye Seymour's will. The district court admitted the will to probate over the objections of her son, Jay Lynn Davis, and held that Davis should be disinherited for contesting it. On appeal, the Court of Appeals reversed the district court. We granted certiorari and now reverse in part and affirm in part the decision of the Court of Appeals.

The decedent executed the will at issue in October 1971 while she was married to Dale R. Seymour. Excepting a few specific bequests, the will provided that her estate was to go to her husband, unless he predeceased her, died simultaneously with her, or died within sixty days following her death. In any of those events an alternate disposition provided that Davis, her son, would receive $10,000 plus certain mortgage notes. [93 N.M. 330]

Page 276

The alternate disposition also provided that the residue of her estate would go to her stepson, Dale Allen Seymour, an appellee.

After execution of the will, the decedent divorced Dale R. Seymour in September 1975. Lois Faye Seymour died in March 1977. The decedent's former husband makes no claim and asserts no rights under the will. The district court admitted the will to probate over Davis' objections and entered an additional finding that Davis was disinherited under a provision in the will which stated:

I expressly provide that if either JAY LYNN DAVIS or DALE ALLEN SEYMOUR shall contest the terms and provisions of this Will, making claim that he is entitled to a greater share of my estate than is provided herein, or contesting in any way the terms and provisions hereof, then I direct that said son shall be disinherited.

Davis argues on appeal that his mother's will was revoked on the date of divorce by operation of § 30-1-7.1, N.M.S.A.1953 (Supp.1975) enacted in 1967. He argues that the statute which was in effect on the date of divorce did not prescribe an alternative disposition of the estate following revocation of the primary dispositive provisions.

Section 30-1-7.1 of the old law provides as follows:

B. If after making a will the testator becomes divorced, all provisions in the will in favor of the testator's spouse so divorced are thereby revoked.

C. Except for the circumstances described in subsections A and B of this section and the provisions of 29-1-16 and 30-1-7 New Mexico Statutes Annotated, 1953 Compilation, no written will nor any part thereof can be revoked by any change in the circumstances or condition of the testator.

Davis therefore argues that the alternative distribution of the estate cannot be given effect, and thus that the alternative distribution of the estate should be distributed under the New Mexico intestacy laws. Davis asserts that the district court order was contrary to the decedent's intention. Davis further asserts that he did not intend to contest his mother's will as such, but only to have a court construe the meaning and effect of the will.

The appellees argue that the decedent's will was not revoked at the instant of her divorce since wills are "ambulatory" until the instant of death. They argue that the Legislature's enactment of the Probate Code, specifically § 45-2-508, N.M.S.A.1978, prior to decedent's death governs the effect of the divorce.

Section 45-2-508 provides:

A. If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power or appointment on the former spouse, and any nomination of the former spouse as personal representative, trustee, conservator or guardian, unless the will expressly provides otherwise.

B. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the...

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19 practice notes
  • Douglas v. Newell, Nos. 85-105
    • United States
    • United States State Supreme Court of Wyoming
    • 16 Mayo 1986
    ...only expects Page 980 that the prior repealed law will apply in construction, effectuation and interpretation. Matter of Seymour's Estate, 93 N.M. 328, 600 P.2d 274, 277 " * * * The Probate Code provided for a time lag prior to its effective date. This provided time for adjustments by parti......
  • Martin v. Harris, Docket No.: BCD-CV-2014-07
    • United States
    • Superior Court of Maine
    • 13 Noviembre 2014
    ...is to effect the testator's intent to the greatest extent possible within the bounds of the law." In re Seymour, 1979-NMSC-069, ¶ 19, 93 N.M. 328, 332, 600 P.2d 274. The no-contest clause in the Mary Louise Mikols Living Trust is unambiguous. It states: Section 13.03 Contest ProvisionThe ri......
  • Estate of Beare, In re, No. 62675
    • United States
    • Court of Appeal of Missouri (US)
    • 6 Julio 1993
    ...of Finlay, 430 Mich. 590, 424 N.W.2d 272 (1988); Matter of Estate of Knudsen, 322 N.W.2d 454 (N.D.1982); Matter of Estate of Seymour, 93 N.M. 328, 600 P.2d 274 (1979); In re Will of Schneider, 159 N.J.Super. 202, 387 A.2d 416 (Sur.1978); Webster v. Larmore, 270 Md. 351, 311 A.2d 405 (1973);......
  • EGW v. First Fed. Sav. Bank of Sheridan, S-17-0151
    • United States
    • United States State Supreme Court of Wyoming
    • 5 Marzo 2018
    ...213, 108 S.W.2d 129 (Mo. 1937), In re Estate of Pasternack , 52 Misc. 2d 413, 275 N.Y.S.2d 703 (N.Y. 1966), and In re Estate of Seymour , 93 N.M. 328, 600 P.2d 274 (N.M. 1979). Each of these cases, however, is distinguishable.[¶27] In Liggett , 108 S.W.2d 129, the testator created her will ......
  • Request a trial to view additional results
19 cases
  • Douglas v. Newell, Nos. 85-105
    • United States
    • United States State Supreme Court of Wyoming
    • 16 Mayo 1986
    ...only expects Page 980 that the prior repealed law will apply in construction, effectuation and interpretation. Matter of Seymour's Estate, 93 N.M. 328, 600 P.2d 274, 277 " * * * The Probate Code provided for a time lag prior to its effective date. This provided time for adjustments by parti......
  • Martin v. Harris, Docket No.: BCD-CV-2014-07
    • United States
    • Superior Court of Maine
    • 13 Noviembre 2014
    ...is to effect the testator's intent to the greatest extent possible within the bounds of the law." In re Seymour, 1979-NMSC-069, ¶ 19, 93 N.M. 328, 332, 600 P.2d 274. The no-contest clause in the Mary Louise Mikols Living Trust is unambiguous. It states: Section 13.03 Contest ProvisionThe ri......
  • Estate of Beare, In re, No. 62675
    • United States
    • Court of Appeal of Missouri (US)
    • 6 Julio 1993
    ...of Finlay, 430 Mich. 590, 424 N.W.2d 272 (1988); Matter of Estate of Knudsen, 322 N.W.2d 454 (N.D.1982); Matter of Estate of Seymour, 93 N.M. 328, 600 P.2d 274 (1979); In re Will of Schneider, 159 N.J.Super. 202, 387 A.2d 416 (Sur.1978); Webster v. Larmore, 270 Md. 351, 311 A.2d 405 (1973);......
  • EGW v. First Fed. Sav. Bank of Sheridan, S-17-0151
    • United States
    • United States State Supreme Court of Wyoming
    • 5 Marzo 2018
    ...213, 108 S.W.2d 129 (Mo. 1937), In re Estate of Pasternack , 52 Misc. 2d 413, 275 N.Y.S.2d 703 (N.Y. 1966), and In re Estate of Seymour , 93 N.M. 328, 600 P.2d 274 (N.M. 1979). Each of these cases, however, is distinguishable.[¶27] In Liggett , 108 S.W.2d 129, the testator created her will ......
  • Request a trial to view additional results

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