{ "id": 1594925, "name": "In the Matter of the ESTATE OF James R. COLEMAN, Deceased, Diane COLEMAN, Appellant, v. Ruth OFFUTT, Personal Representative, Appellee", "name_abbreviation": "Coleman v. Offutt", "decision_date": "1986-03-25", "docket_number": "No. 8847", "first_page": "192", "last_page": "195", "citations": [ { "type": "official", "cite": "104 N.M. 192" }, { "type": "parallel", "cite": "718 P.2d 702" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "119 Ariz. 614", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 708497 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ariz/119/0614-01" ] }, { "cite": "6 N.M.L.Rev. 25", "category": "journals:journal", "reporter": "N.M. L. Rev.", "weight": 2, "year": 1975, "pin_cites": [ { "page": "54" }, { "page": "54, n. 186" } ], "opinion_index": 0 }, { "cite": "14 Ariz.L.Rev. 205", "category": "journals:journal", "reporter": "Ariz. L. Rev.", "year": 1972, "pin_cites": [ { "page": "235", "parenthetical": "footnote omitted" } ], "opinion_index": 0 }, { "cite": "78 P. 53", "category": "reporters:state_regional", "reporter": "P.", "year": 1904, "pin_cites": [ { "parenthetical": "recognizing revocation on change of circumstance" } ], "opinion_index": 0 }, { "cite": "12 N.M. 372", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4672771 ], "year": 1904, "pin_cites": [ { "parenthetical": "recognizing revocation on change of circumstance" } ], "opinion_index": 0, "case_paths": [ "/nm/12/0372-01" ] }, { "cite": "93 N.M. 328", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568693 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/93/0328-01" ] }, { "cite": "85 N.M. 420", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771073 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0420-01" ] }, { "cite": "324 S.W.2d 234", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10161700 ], "opinion_index": 0, "case_paths": [ "/sw2d/324/0234-01" ] }, { "cite": "407 P.2d 656", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1965, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0 }, { "cite": "47 Cal.Rptr. 480", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1965, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0 }, { "cite": "63 Cal.2d 580", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2335689 ], "year": 1965, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/cal-2d/63/0580-01" ] } ], "analysis": { "cardinality": 519, "char_count": 10345, "ocr_confidence": 0.782, "pagerank": { "raw": 1.0673834939259451e-07, "percentile": 0.558703229416078 }, "sha256": "9cd09112c3462702d97ffdc67bd554bdc65f0581493cda8bd6efe5f6938475c5", "simhash": "1:81d96c1a21e4c4ce", "word_count": 1722 }, "last_updated": "2023-07-14T22:33:25.530063+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID and GARCIA, JJ., concur." ], "parties": [ "In the Matter of the ESTATE OF James R. COLEMAN, Deceased, Diane COLEMAN, Appellant, v. Ruth OFFUTT, Personal Representative, Appellee." ], "opinions": [ { "text": "OPINION\nMINZNER, Judge.\nThis case is before us on interlocutory appeal for a determination of the proper distribution of the estate of James R. Coleman. We granted interlocutory appeal for a determination of the proper distribution of an estate when the decedent\u2019s will omits the spouse, see NMSA 1978, Section 45-2-301(A), and decedent\u2019s only child, see NMSA 1978, Section 45-2-302(A), and disposes of the entire estate to a third person. We affirm the trial court\u2019s conclusion that the surviving spouse is entitled to a one-fourth interest. See NMSA 1978, \u00a7 45-2-102(A)(2).\nJames R. Coleman executed his last will and testament in 1982. In the will, he left his entire estate to appellee, his sister, and stated that he purposely made no provision for his adopted son, James Wallace Coleman. In 1983, James R. Coleman married appellant. He died later that year, never having made another will.\nAppellee was appointed personal representative of the estate on August 25, 1983. She subsequently petitioned for formal probate and determination of heirship. The trial court granted appellant\u2019s application for a family allowance. See NMSA 1978, \u00a7 45-2-401(A) (Cum.Supp.1985). The record also indicates that she received a personal property allowance pursuant to NMSA 1978, Section 45-2-402.\nIn late 1984, appellant petitioned the trial court for final settlement and distribution. The trial court ordered an accounting. Having complied with that order, appellee petitioned the trial court for an order approving her proposed distribution. Appellant filed objections and also moved for an order compelling the personal representative to close the estate and distribute the assets.\nAfter a hearing, the trial court found that all of the estate was separate property, that appellant was the surviving spouse, and that transfers of the proceeds of three insurance policies to her were not made in lieu of a testamentary provision. It concluded that she was entitled to share as an omitted spouse. See \u00a7 45-2-301(A). The trial court also found that James Wallace Coleman was the only child of James R. Coleman and that he intentionally failed to make provision for his son; the trial court concluded that James Wallace Coleman was not entitled to a share of the estate as a pretermitted child. See \u00a7 45-2-302(A)(l). The court then determined that appellant was entitled to a one-fourth interest, that James Wallace Coleman had no interest, and that appellee was entitled to the remainder of the estate.\nAt the time of the hearing, appellee had filed a federal estate tax return, and it had been accepted as filed. The parties advised the court, however, that the estate\u2019s liability for federal estate taxes was contingent on the size of the share to which appellant was entitled. Because appellee might be required to file an amended return, the trial judge entered an order that permitted this interlocutory appeal. See NMSA 1978, \u00a7 39-3-4(A).\nThe appellate issue is whether the will\u2019s exclusion of James Wallace Coleman affects the size of appellant\u2019s share. The trial court concluded that appellant was entitled to one-fourth of the estate, because James R. Coleman was survived by issue. See \u00a7 45-2-102(A). We agree.\nSection 45-2-301(A) provides:\nIf a testator fails to provide by will for the surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will unless it appears from the will that the omission was intentional, or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown\nBecause the trial court determined that any transfers made to appellant were not in lieu of a testamentary provision, and because there is no indication in the will that James R. Coleman intentionally omitted her, she was entitled to the same share of the estate she would have received had he died intestate.\nAppellant contends that because the trial court found that James Wallace Coleman was not entitled to any part of the estate, he is not a \u201cchild\u201d under the New Mexico Probate Code and therefore does not come within the definition of \u201cissue.\u201d Neither the trial court\u2019s finding nor the relevant statutes support this contention.\nUnder Section 45-2-302, a child not provided for by will receives an intestate share unless it appears from the will that the omission was intentional. Although the trial court found that James Wallace Coleman was not entitled to receive the share provided by statute for a pretermitted child, the court determined that James R. Coleman was survived by a child.\nBecause James R. Coleman was survived by a child who would have been entitled to share had his parent died intestate, Section 45-2-102(A)(2) controls. As used in the Probate Code (NMSA 1978, Sections 45-1-101 to 45-7-401), \u201cchild\u201d includes any individual entitled to take as a child by intestate succession from the parent whose relationship is involved. NMSA 1978, \u00a7 45-1-201(A)(3). Had James R. Coleman died intestate, it is clear that his adopted son would have been entitled to a share of the estate. \u00a7\u00a7 45-2-103(A) and -109(A). Having satisfied the statutory definition of \u201cchild,\u201d James R. Coleman\u2019s son is also \u201cissue\u201d under the Probate Code. \u00a7 45-1-201(A)(21).\nAppellant also argues that the legislature intended the will should be set aside under these circumstances. If James R. Coleman had died intestate, however, appellant would be entitled to the same one-fourth interest.\nThe will has not altered the fact that James Wallace Coleman would have been entitled to share in his father\u2019s estate had his father died intestate. An attempted disinheritance does not prevent heirs and next of kin from sharing in property as to which the decedent died intestate. In re Estate of Barnes, 63 Cal.2d 580, 47 Cal.Rptr. 480, 407 P.2d 656 (1965) (en banc). A clause in the will excluding the heirs from sharing in the estate is not effective unless a valid disposition is made of all the property. Poole v. Starke, 324 S.W.2d 234 (Tex.App.1959).\nIn addition, although the will effectively excluded James Wallace Coleman, under the will or as a pretermitted child, it has not altered the amount to which appellant is entitled under the statute of intestate succession. Insofar as she is concerned, there is no will. See Hagerman v. Gustafson, 85 N.M. 420, 512 P.2d 1256 (1973). The rest of the will, however, is preserved in order to carry out the intended testamentary disposition insofar as that is possible.\nUnder the Probate Code, disposition of property to a spouse by will is revoked by a subsequent divorce or annulment, but \u201c[n]o change of circumstances other than as described in this section revokes a will.\u201d NMSA 1978, \u00a7 45-2-508(E). See generally In re Estate of Seymour, 93 N.M. 328, 600 P.2d 274 (1979). A subsequent marriage no longer revokes a will. Cf. In re Estate of Teopfer, 12 N.M. 372, 78 P. 53 (1904) (recognizing revocation on change of circumstance). Rather, in enacting the Probate Code, the legislature created, under certain circumstances, an intestate share for an omitted spouse. The legislature also provided family and personal property allowances to which a surviving spouse is entitled. See \u00a7\u00a7 45-2-401 and -402.\nAppellant argues that because the devises made by the will must abate, see \u00a7 45-2-301(B), appellee should take nothing. This reasoning equates abatement with revocation. In referring to legacies, abatement is \u201ca proportional diminution or reduction of the pecuniary legacies when funds or assets out of which such legacies are payable are not sufficient to pay them in full.\u201d Black\u2019s Law Dictionary 4 (5th ed.1979). See also \u00a7 45-3-902.\nThe Probate Code makes identical provision for abatement in the case of a share due a pretermitted child and a share due an omitted spouse. \u00a7\u00a7 45-2-302(C) and -301(B).\n[The Uniform Probate Code] treats the omitted spouse like the pretermitted child and provides him or her with an intestate share. The purpose of this approach is to preserve the remainder of the will. Thus, if a widower executed a will creating a trust for his children and later remarried, the second wife would obtain the same share as if the husband had died intestate, but the trust would be preserved as to the remainder of his property.\nO\u2019Connell and Effland, Intestate Succession and Wills: A Comparative Analysis of the Law of Arizona and the Uniform Probate Code, 14 Ariz.L.Rev. 205, 235 (1972) (footnote omitted).\nUnder former law, when an omitted child received a share equal to an intestate share, \u201call the other heirs, devisees, and legatees shall refund their proportional part.\u201d NMSA 1953, \u00a7 30-1-7. \u201c[T]he will is not otherwise revoked but * * * the other legatees will contribute a proportional part to make up the share of the omitted or posthumous child.\u201d Flickinger, Intestate Succession and Wills Law: The New Probate Code, 6 N.M.L.Rev. 25, 54 (1975). A similar provision for supplying the child\u2019s share is contained in the new code. Id. at 54, n. 186.\nThe intention of the testator, expressed in his will, controls the legal effect of his dispositions. NMSA 1978, \u00a7 45-2-603. The Probate Code contains a presumption against intestacy. O\u2019Connell and Effland, supra, at 250; NMSA 1978, \u00a7 45-2-604. Taken as a whole, the Probate Code provides for the omitted spouse while preserving the remainder of the will insofar as possible. In re Estate of Beaman, 119 Ariz. 614, 583 P.2d 270 (App.1978).\nWe hold that appellant is entitled to one-fourth of the estate, the amount to which she would have been entitled had James R. Coleman died intestate. \u00a7\u00a7 45-2-301 and -102(A)(2). The remaining three-fourths of the estate passes to appellee under the terms of the will.\nThe order of the trial court is affirmed. Appellant shall bear the appellate costs.\nIT IS SO ORDERED.\nALARID and GARCIA, JJ., concur.", "type": "majority", "author": "MINZNER, Judge." } ], "attorneys": [ "James L. Dow, Dow, Feezer & Williams, P.A., Carlsbad, for appellant.", "M. Jane Shuler, Marek & Yarbro, P.A., Carlsbad, Joel M. Carson, Losee & Carson, P.A., Artesia, for appellee." ], "corrections": "", "head_matter": "718 P.2d 702\nIn the Matter of the ESTATE OF James R. COLEMAN, Deceased, Diane COLEMAN, Appellant, v. Ruth OFFUTT, Personal Representative, Appellee.\nNo. 8847.\nCourt of Appeals of New Mexico.\nMarch 25, 1986.\nJames L. Dow, Dow, Feezer & Williams, P.A., Carlsbad, for appellant.\nM. Jane Shuler, Marek & Yarbro, P.A., Carlsbad, Joel M. Carson, Losee & Carson, P.A., Artesia, for appellee." }, "file_name": "0192-01", "first_page_order": 226, "last_page_order": 229 }