Spencer v. Gutierrez, 5867

• Decision Date: 15 March 1983
• Docket Number: No. 5867,5867
• Parties: Maria SPENCER and Edward Gutierrez, Respondents-Appellants, v. Ralph GUTIERREZ, in his capacity as Personal Representative of the Estates of Jesus B. Gutierrez and Aurora Gutierrez, deceased, and individually, Petitioner-Appellee.
• Court: Court of Appeals of New Mexico

Page 371

663 P.2d 371

99 N.M. 712

Maria SPENCER and Edward Gutierrez, Respondents-Appellants, v. Ralph GUTIERREZ, in his capacity as Personal Representative of the Estates of Jesus B. Gutierrez and Aurora Gutierrez, deceased, and individually Petitioner-Appellee.

No. 5867.

Court of Appeals of New Mexico.

March 15, 1983.

Certiorari Denied May 17, 1983.

[99 NM 713] Albert H. Engel, Las Cruces, for respondent-appellant, Maria spencer.

Lanny D. Messersmith, Albuquerque, for respondent-appellant, Edward Gutierrez.

Ray O. Sage, Las Cruces, for petitioner-appellee, Ralph Gutierrez.

OPINION

WALTERS, Chief Judge.

This appeal challenges the trial court's construction of the wills of the parties' parents. We affirm.

Jesus B. Gutierrez (J.B.) and his wife, Aurora Gutierrez, each executed their own wills in July, 1962. J.B. Gutierrez died on January 27, 1970 and Aurora died on September 16, 1978. Their three children, who are parties in this appeal, are appellants Maria (Emma) Spencer and Edward Gutierrez, and their brother, appellee Ralph Gutierrez.

J.B. and Aurora named each other as administrators of their wills; Ralph was named by each as their alternate administrator. J.B.'s will was not probated at the time of his death and Ralph filed petitions for formal probate of both wills on March 20, 1979. Maria thereafter filed a notice demand, and requested supervised administration of Aurora's estate and an order of complete settlement of J.B.'s estate. Ralph then petitioned to have both wills construed. The probate proceedings were consolidated and a hearing on the motions to construe was held on May 18, 1981.

The contest between the children focused on the following language, found in clause II(a) of J.B.'s will and in clause III(a)(3) of Aurora's will, respectively:

To my son, Ralph Gutierrez, I leave, devise and bequeath * * * the property or real estate which has been occupied and on which has been conducted the business known as City Drug Store and City Center Restaurant, with street address of 334 and 334 1/2 South Main Street, City of Las Cruces * * *. (Clause II(a) of J.B.'s will.)

To our son, Ralph Gutierrez, and in the case he should predecease me, then to his issue, share and share alike:

Property with street address of 334 and 334 1/2 South Main Street, Las Cruces, New Mexico, which has been occupied and on which has been conducted the business known as City Drug Store and City Center Restaurant. (Clause III(a)(3) of Aurora's will.)

J.B. and Aurora owned, in whole or in part, three tracts of land on South Main Street. The court found that J.B. and Aurora intended to bequeath their interests in all three tracts to Ralph. Appellants contend that only one tract should pass to Ralph, while the other two tracts lapsing to the residuary clause which provides for all three heirs sharing in the property in equal portion, because only Tract 1 bears the address of 334 South Main Street, and there is no such address as 334 1/2 South Main.

Appellants have briefed the following issues:

(1) Whether substantial evidence supports the trial court's finding that all three tracts of the South Main property were intended to pass to Ralph.

(2) Whether the language employed in the wills devises only one tract of the South Main property to Ralph.

(3) Whether testimony concerning the decedents' intended disposition of their property was improperly admitted over objection.

The South Main Street property consists of three adjoining tracts of land, referred to by the parties as Tracts 1, 2, and 3 in the order in which they were acquired. J.B. Gutierrez purchased Tract 1 in 1944. Appellants concede that this tract was clearly intended by the testators to pass only to Ralph, as the street address of Tract 1 and of the drug store and restaurant is 334 South Main Street.

Tract 2 was acquired in December, 1958 in the names of J.B. and Aurora, jointly, Ralph and his wife, jointly, and Edward and his wife, jointly, all as tenants in common.

Tract 3 was acquired under contract of sale and purchase, executed April 25, 1962, by J.B., Aurora, Ralph, and Ralph's wife. Thus, all of the adjoining tracts were acquired prior to the execution of the wills.

J.B., Ralph and Edward had formed a partnership under the name of Valley Drug Store in June 1954. In May, 1961, Edward withdrew from the partnership, at a time when the partners had expanded the business to include a restaurant adjoining the drug store operation. In December, 1962, Edward and his wife conveyed their one-third interest in Tract 2 to J.B. and Aurora.

Appellants claim that as there was no material conflict in the evidence, there was no ambiguity in the will, and that as a matter of law the trial court should have so concluded, citing Walters v. Hastings, 84 N.M. 101, 500 P.2d 186 (1972). We do not agree that the will was unambiguous or that the evidence was not in conflict. A reference to a non-existent or incorrect address certainly puts at issue what the testator intended by "and 334 1/2." (Emphasis added.)

Extrinsic evidence is always admissible to determine what property the testator meant to dispose of by the language he used in his will. In re Estate of Shadden, 93 N.M. 274, 599 P.2d 1071 (Ct.App.1979). Whenever a will must be construed, the testator's intent is to be determined from (a) all of the language in the will, (b) the testator's scheme of distribution, (c) the circumstances surrounding the testator at the time of making the will, and (d) the existing facts. Gregg v. Gardner, 73 N.M. 347, 388 P.2d 68 (1963).

It is clear from the transcript of proceedings attached to and...