STITT v. COX

• Decision Date: 23 March 1948
• Docket Number: No. 5058,5058
• Citation: 190 P.2d 434,52 N.M. 24
• Parties: STITT v. COX et al.
• Court: New Mexico Supreme Court

52 N.M. 24

190 P.2d 434

STITT

v.COX et al.

No. 5058.

Supreme Court of New Mexico.

Jan. 31, 1948.

Rehearing Denied March 23, 1948.

[190 P.2d 434, 52 N.M. 25]

J. B. Newell, of Las Cruces, for appellant.

Holt & Holt, of Las Cruces, for appellees.

COMPTON, Justice.

Appellees, James W. Cox and Fannie C. Cox, father and mother respectively of William W. Cox, deceased, on September 18, 1946, filed their petition to revoke the last will and testament of the said William W. Cox, deceased, which was admitted to probate on the 8th day of March, 1946.

The petition alleged that on the 28th day of January, 1942, the said William W. Cox made his last will and testament, devising and bequeathing all his property to his wife, Ruth Elaine Cox; that thereafter, on July 10, 1944, Ruth Elaine Cox secured a divorce from the said William W. Cox and was thereby restored to the use of her maiden name, Ruth Elaine Stitt; that immediately following divorce, and pursuant to previous agreements, the parties consummated a property settlement, present and prospective, and that it was the intention of the parties, when the divorce was granted, and property rights were adjusted, that the will should no longer be effective. It further alleged that on May 13, 1945, the said William W. Cox died without issue and that appellees were the heirs of the deceased and entitled to his estate. Judgment was asked accordingly.

Motion to dismiss on the grounds (1) that the petition was not timely filed, and (2) that the will was not revoked by the method provided by law, was overruled, whereupon appellant answered, denying that it was the intention of the parties that divorce and property settlement should render the will ineffective, and as an affirmative defense re-pleaded the grounds theretofore asserted in the motion to dismiss.

Appellant contends that appellees are barred from maintaining this action, as itwas not commenced within six months from the date of probate; and that the statute provides the exclusive method whereby a will may be revoked. On the other hand, appellees contend that this is not a will contest, but a proceeding to determine the heirs of the deceased and the ownership of his estate; that divorce and property settlement impliedly revoke a will, and being thus revoked, the statute is not a bar to the suit.

The trial court treated the proceeding as one to determine heirship. Judgment was entered revoking the will and decreeing that appellees were the heirs of William W. Cox, deceased, and entitled to his estate, from which appellant brings this appeal.

The pertinent statutes are:

'When a will has been approved, any person interested may at any time within six (6) months after such probate, contest the same or the validity of the will. For that purpose he shall file in the court in which the will was proved, a petition in writing, containing his allegations against the validity of the will or against the sufficiency of the proof, and praying that the probate may be revoked.' 32-212, N.M.Sts.1941 Comp.

'If no person shall, within six (6) months after the probate, contest the same, or the validity of the will, or if on such contest the will is sustained, the probate of the will shall have the same effect as a final decree in chancery.' Ch. 14, Laws 1943, N.M.Sts.

'Any will may be revoked by the testator by an instrument in writing, executed and attested in the same manner as is required by law for the execution and attestation of a will, by which instrument the maker distinctly refers to such will and declares that he revokes it; or such will may be revoked by the making of a subsequent valid will disposing of the same property covered by the first will, although no reference be made in the later will to the existence of the earlier one.' 32-108, N.M.Sts.1941 Comp.

It clearly appears that a proceeding to revoke a will and determine heirship, is a direct attack upon the judgment admitting the will to probate, and falls within the inhibitions of Section 32-212, supra. Whether the proceeding be one to contest or revoke a will, its effectiveness, if sustained, is to annul and set aside the judgment...