White v. Mayo

• Decision Date: 15 April 1931
• Docket Number: 3551.
• Parties: WHITE et al. v. MAYO et al.
• Court: New Mexico Supreme Court

299 P. 1068

35 N.M. 430, 1931 -NMSC- 017

WHITE et al.
v.
MAYO et al.

No. 3551.

Supreme Court of New Mexico

April 15, 1931

Rehearing Denied June 18, 1931.

Syllabus by the Court.

Widow, upon making final proof and receiving patent to homestead entered by deceased husband under federal homestead laws, takes title to exclusion of heirs.

Where the widow makes final proof and receives patent to a homestead entered by her deceased husband, under the federal homestead laws, the heirs have no interest therein.

Statute providing that certain personalty of deceased husband be set apart to widow vests in widow unqualified right to such property upon husband's death (Comp. St. 1929, § 38-107).

Section 1421, Comp. Laws 1884, as amended by section 21, c. 90, Laws 1889 (section 38-107, 1929 Comp.), which provides that certain personal property of the deceased husband shall be set apart to the widow as her property, construed and held to vest in the widow an unqualified right to the property immediately upon the husband's death.

Declarations of deceased grantee who held legal title, to support resulting trust, must be direct and certain, and to be controlling, must be corroborated.

Declarations of deceased grantee who held legal title to property, to support a resulting trust, must be direct and certain, and to be controlling should be corroborated by other facts and circumstances.

To establish implied trust, parol evidence must be clear and unequivocal and distinctly prove facts necessary; parol evidence to establish resulting trust, where only part of purchase money was paid, must show exact portion of price paid.

Parol evidence to establish an implied trust must be clear and unequivocal and such as goes distinctly to prove the facts necessary to create a trust, and where only part of the purchase money is claimed, the evidence must show the exact portion of the entire price paid.

Evidence held insufficient to establish resulting trust in plaintiffs' favor in property acquired in part with proceeds of property of deceased father.

Evidence held not sufficient to establish an implied trust.

Appeal from District Court, Colfax County; Kiker, Judge.

Suit by Marion White and another against William H. Mayo and another, wherein John E. Mayo and Lillie J. Clement were substituted as parties defendant for William H. Mayo, and Miles E. Hopkins was permitted to intervene. From the judgment rendered, the substituted defendants and the intervener appeal.

Reversed and cause remanded with instructions.

L. S. Wilson, of Raton, for appellants.

J. Leahy, of Raton, for appellees.

HUDSPETH, J.

The former appeal of this cause is reported as White et al. v. Mayo et al. in 31 N.M. 366, 246 P. 910, where the second amended complaint was held to state a cause of action. The allegations of the second amended complaint are fully set out in the former opinion. After the case had been remanded, Miles E. Hopkins, who purchased the land in San Juan county from John E. Mayo after lis pendens had been filed in the office of the county clerk of said county, was permitted to intervene. [299 P. 1069]

The issues upon which the trial was had were made by the second amended complaint, the first amended answer thereto and a reply, petition in intervention and answer thereto. The court rendered judgment in favor of the plaintiffs and against the defendant Lille J. Clement for $1,844.61 and directed that certain moneys of the estate impounded in the hands of the clerk of the court be paid thereon and judgment in rem upon the land situate in San Juan county, described in the second amended complaint, against John E. Mayo and Miles E. Hopkins for the balance, after applying the funds impounded on the judgment, dismissed as to defendant Griggs. The defendants Lillie J. Clement and John E. Mayo and intervener Hopkins appealed.

Both plaintiffs and defendants submitted findings of fact and conclusions of law; all findings of fact as well as conclusions of law submitted by counsel for plaintiffs were approved and adopted by the court.

The court found that Henry C. White in the year 1891 made a homestead entry under the public land laws of the United States on 160 acres of land situate in Colfax county, N. M., and made improvements thereon of the value of $300, and died intestate in 1892 or 1893 leaving as his heirs the plaintiffs, Lillie George, a daughter, who was born April 17, 1875, and Marion White, a son, born February 24, 1886, and Kosiah L. White, his widow; that the widow made final proof on said homestead, as his widow, and obtained patent thereto. Parts of the findings of fact follow:

"The court also finds that said Henry C. White, at the time of his death left besides the improvements on said land, other personal property consisting of two yoke of oxen, two wagons, one cow, chickens, household & kitchen furniture etc., and that said other personal property was of the value of $300.00 and that all of said other personal property so left, was the Community property of said Henry C. White and Kosiah L. White."

"That the total value of said property at the time of the death of Henry C. White was $800.00 and that his widow Kosiah L. White appropriated the same and disposed of it without any legal procedure had thereon."

"That said Kosiah L. White was married to said Wm. H. Mayo in June 1895, and that at the time thereof, or very soon thereafter, she had $600.00 which she obtained from the sale of the

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