{ "id": 1575397, "name": "In re RIEDLINGER'S WILL", "name_abbreviation": "In re Riedlinger's Will", "decision_date": "1932-11-26", "docket_number": "No. 3671", "first_page": "18", "last_page": "24", "citations": [ { "type": "official", "cite": "37 N.M. 18" }, { "type": "parallel", "cite": "16 P.2d 549" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "108 F. 102", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6720157 ], "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/f/108/0102-01" ] } ], "analysis": { "cardinality": 721, "char_count": 15356, "ocr_confidence": 0.452, "pagerank": { "raw": 1.3312496300852612e-07, "percentile": 0.6289691020596182 }, "sha256": "e0300ca10d37a43ee3a990f6faebf1f6bc9b6804d5d4142f681b9573646e731a", "simhash": "1:934bc897d8b50e52", "word_count": 2626 }, "last_updated": "2023-07-14T15:19:46.739107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BICKLEY, C. J., and SADLER and HUDS-PETH, JJ., concur.", "NEAL, J., did mot participate." ], "parties": [ "In re RIEDLINGER\u2019S WILL." ], "opinions": [ { "text": "WATSON, J.\nThis is an appeal from the judgment of the district court Sustaining a will and admitting it to probate.\nThe matter reached the district court by appeal from a similar decision of the probate court taken by certain heirs at law, the present appellants, who appeared at the hearing, evidently as objectors to the probate of the will.\nThe district judge overruled a demand of the objectors or contestants for a trial by jury. That action is here assigned as error. It presents a question of statutory construction.\nThe probate court has exclusive jurisdiction of the probate of wills. 1929 Comp. St. \u00a7 34-412. Its decisions are appealable to the district court. Id. \u00a7 34-420. If, on the hearing for proving the will, the probate judge \u201cshall be of the opinion that the will is not valid,\u201d he is to certify such opinion with the proceedings to the district court. There the matter is to \u201cstand for hearing de novo * * * the same as on appeal, but either party, on demand therefor, shall have the right to a trial by jury on such appeal.\u201d Id. \u00a7 154-209. Interested persons may contest the will and pray revocation of probate at any time within one year after such probate. Id. \u00a7 154-211. If, on contest, the \u201cprobate judge shall be of the opinion that the probate should be revoked,\u201d he is to certify that opinion, with the proceedings, to the district court, and the same proceedings are to be had as when such opinion is arrived at by the probate judge on application to probate the will. Id. \u00a7 154-213.\nThe provisions just referred to are respectively sections 48, 46, 11, 13, and 15 of the Uaws of 1889, c. 90. They provide for a trial de novo in the district court of any decision of the probate judge as to admission to probate and revocation of probate. But, where the \u201copinion\u201d of the probate judge is unfavorable to the will, the jurisdiction of the district court does not arise through an ap.peal in the ordinary sense of the word. It is an automatic statutory transfer of the jurisdiction, the law refusing to give effect to the adverse opinion of a probate judge. Appellee\u2019s position is that it is in that class'of cases only that either party may demand a jury. If sustained, it would support the trial court\u2019s ruling.\nIt is true that the language of section 154-209, supra, does not necessarily confer the . righj; upon interested persons in the situation \u201e,of appellants, who, having objected to the or- , iginal admission to probate, have appealed from an adverse judgment.\nOn the other hand, the language does not clearly exclude the right in eases like this. The section wherein the right is conferred (section 154-209) is not dealing with true appeals. But, the same result is accomplished, the only difference being in the method. Jurisdiction having been acquired by the district court, the matter stands \u201cas on appeal.\u201d The subsequent phrase, \u201csuch appeal,\u201d may find its antecedent in appeals generally, or in the quasi appeal or removal prescribed in that section.\nWe may admit that, considering nicety of language and arrangement, appellee has the better of the argument. But, nothing presented or occurring to us suggests the appropriateness, wisdom, or sound policy of distinguishing, as to the right of trial by jury, between these quasi appeals, and ordinary appeals. In the one case, the matter stands \u201cas on appeal\u201d; in the other, it stands on appeal. Always'the trial is de novo. The favorable or unfavorable \u201copinion\u201d of the probate judge cannot affect the result in the district court. It has exactly the same question before it in either case, the validity of the will.\nIf the right of trial by jury is of value to either party in the one situation, it will be equally so in the other. The winning or losing of the skirmish in the probate court has no reasonable connection with a right to a jury in the battle in district court.\nThe Legislature has denied effect to the \u201copinion\u201d of a probate judge adverse' to a will; though his favorable .opinion, unchallenged by an interested person, may stand. That distinction is plain. Among other reasonable explanations of it, it may be said to suggest a policy somewhat favoring wills. But, there is nothing in the distinction appellee urges to further such policy. The right, whatever it may be, is reciprocal. Either party may claim it.\nThe logic of the situation constrains us to hold that, in all of these cases in the district courts wherein the purpose is to procure or to revoke the probate of a will, the right of trial by jury has been granted, at the request of either party. The legislative language, while somewhat unfavorable to this view, does not exclude it. To hold that the intention. was otherwise is to impute to the lawmaking body an arbitrary distinction, serving no purpose, advancing no interest or policy, and resulting in a degree of absurdity. So we conclude that it was error to deny appellants the right of trial by jury.\nIn the district court there was a difference between counsel as to whether the evidence showed the attesting witnesses to have seen the testator sign the will. On this point the court found favorably to appellee. He did not and does not, however, stand solely upon the findings. He contends that they are unessential because, as he urges, Code 1915, \u00a7 5866 (1929 Comp. St. \u00a7 154-108), containing such requirement, was repealed by implication by Laws 1921, c. 83. The learned trial judge evidently took that view. The matter might give further trouble in this case if not decided now.\nThe latest expression of the Legislature as to attestation is: \u201cAll wills * * * shall be * * * attested in the presence of the testator by two or more credible witnesses.\u201d Laws 1921, c. 83, 1929 Comp. St. \u00a7 154-1051 Theretofore, \u201cthe witnesses * * * must * * * see the testator sign the will. * * * \u201d The question is whether the Legislature has abolished the earlier requirement. Not having done so expressly, it can have done so only by implication. What we seek is the legislative intent. Canons of construction may aid but cannot control decision.\n\u25a0 Appellants urge the well-known rule that repeals by implication are not favored, that a later statute will be deemed to repeal an earlier by implication only to the extent of repugnancy, and that if the provisions of the two can be harmonized, both must be given effect.\nObviously, there is no inconsistency between the requirement of the later provision that the will be attested by two witnesses in the presence of the testator, and the earlier requirement that the witnesses see the testator sign. They govern different matters.\nAppellee urges the equally familiar rule that if the new statute is comprehensive, and intended to exhaust the subject, earlier provisions will he deemed repealed. Coming to particulars, his contention is that the new statute deals comprehensively with the subject-matter expressed in its title, \u201cAn Act to Prescribe the Manner of Making and Attesting Wills. * * * \u201d\nThis subject-matter was covered by the following sections of the Code of 1915:\n\u201c\u00a7 5858. Any will executed in any foreign jurisdiction, sufficient to convey the title or [of] real estate in such jurisdiction, shall be valid in this State to the same extent as in the jurisdiction where made.\u201d 1929 Comp. St. \u00a7.154-102.\n\u201c\u00a7 5861. Any person capable of making a will would do better by making it in writing than verbally, but a verbal will may be valid, on condition, that in either case they give it all the validity possible, as well as the freeness of the will, the proof of soundness of mind and entire judgment.\u201d\n\u201c\u00a7 5862. The will shall have all the validity required in the previous section; and when made in writing, it shall be signed by the testator, who, if unable or not knowing how to sign, shall request some reliable person to sign for him, and it shall be attested by able and qualified witnesses as provided by the laws prescribing the qualifications of witnesses to give evidence in court or out of court, in this State.\u201d\n\u201c\u00a7 5863. In the execution of all wills two or more witnesses shall be sufficient.\u201d 1929 Comp; St. \u00a7 154-106.\n\u201c\u00a7 5864. A verbal will shall be attested by the same number of witnesses required for the written ones, and besides, two witnesses, there being no more, possessing the same qualifications as required for the written will, to testify that the testator, male or female, was in possession of a sound mind and entire judgment.\u201d\n\u201c\u00a7 5865. Persons becoming heirs, and those receiving benefits or legacies, by will, cannot be witnesses to the will in which they are interested.\u201d 1929 Comp. St. \u00a7 154-107.\n\u201c\u00a7 5866. The witnesses to a written will must be present, see the testator sign the will, or some one sign it for him at his request as and for his last will and testament, and must sign as witnesses at his request in his presence and in the presence of each other.\u201d 1929 Comp. St. \u00a7 154-108.\nThese sections may be traced to the Act approved January 12, 1852, found, with the English translation, in Laws 1851-52, p. 354, and to Laws 1889, c. 90. The new statute (Laws 1921, c. 83), which appellee urges as comprehensive, reads as follows:\n\u201cAn Act to Prescribe the Manner of Making and Attesting Wills; and to Repeal Sections 5861, 5862 and 5864, New Mexico Statutes, Annotated, Codification 1915, Relative to Oral Wills.\n\u201cSection 1. All wills by which any property, real, personal or mixed, is devised or bequeathed, shall be reduced to writing and signed by the testator, or some one in his presence and by his direction, and attested in the presence of the testator by two or more credible witnesses. Provided, however, that any will which has been admitted to probate in any other State according to the laws of such State, shall be admitted in this State in the manner provided by law.\n\u201cSections 5861, 5862 and 5864, New Mexico Statutes, Annotated, Codification 19.15, are hereby repealed.\u201d\nWhat we conceive to have been the main purpose of this act is very plain. It expressly repeals three of the foregoing sections which recognized the validity of so-called verbal wills. These were replaced by the new requirement that \u201call wills * * * be reduced to writing and signed by the testator.\u201d\nAnother good reason for the repeal of these particular sections existed and may have had influence. Originally adopted in Spanish, the translations were not happy, and the English version was involved and confusing.\nSo far as the Legislature has expressly spoken there remain four of the foregoing sections which hear upon the general subject of making and attesting wills. We would have been spared labor if those four had been either wiped out by express repeal and reenactment of what it was desired to retain, or left alone, without inclusion of any of their subject-matter in the new act.\nIt is the overlapping of the new and the old which raises doubt. The substance of sections 5858 and 5863 was incorporated in the new statute. That presents no difficulty except that it suggests, or is consistent with, intent to make the new act comprehensive.\nThe subject-matter of section 5865 finds no place in the new act. This is true also as to section 5866, except for a repetition in the new act of the old requirement that the witnesses sign in the presence of the testator.'\nAccording to appellee\u2019s construction, important and customary safeguards have been abandoned. He argues that the requirement that the witnesses see the testator sign is unusual, and that the Legislature intended to dispense with it. It is usual, however, to require \u2022 that the witnesses sign at the testator\u2019s request, in the testators presence, and in the presence of each other, and that there be some publication to the witnesses by the testator that the instrument is his will. The intent to dispense with all of these is not readily to be implied. The resulting system would be very loose.\nMoreover, appellee\u2019s argument, though not his contention, would necessitate holding section 5865, also repealed. It is not lightly to be inferred that so important a provision was intentionally repealed without something to replace it. \u201cConsiderations of convenience, justice and reasonableness, when they can be invoked against the implication of repeal, are always very potent.\u201d Lewis\u2019 Sutherland, Stat. Const. (2d Ed.) \u00a7 247.\nHow much of former requirements said to have been repealed could be held included in the new requirements that the witnesses \u201cattest,\u201d and that they be \u201ccredible,\u201d are questions we do not pursue. At least, the statute would raise difficult questions of construction.\nAppellee suggests that if the Legislature did not intend the new act to be comprehensive, it has \u201cset a trap for unsuspecting tes-. tators.\u201d- Statute law contains many traps. It is not easy to foresee all consequences of proposed legislation. The argument might properly be addressed to the Legislature, to induce it to try its hand again. It cannot greatly influence our conclusion as to the intent here disclosed.\nAppellee relies largely on the title of chapter 83 to support his view that it was intended to be comprehensive, and the sole regulation as to the attestation of wills: We doubt if great weight should be given to it. A learned court has said: \u201cWhile the title of an act should not be altogether ignored, and may afford a key to unlock the meaning of a very doubtful statute, yet the title of an act cannot be used to extend the provisions of an act so as to include within its scope that which without such aid would plainly not be included.\u201d The New York (C. C. A.) 108 F. 102, 109. The text most often relied upon cites this case to the proposition, \u201cthe repealing effect of an act cannot be enlarged by its title.\u201d Lewis\u2019 Sutherland, Stat. Const. (2d Ed.) \u00a7 266.\nAside from this title, no intent is disclosed to reconsider and revise the general subject \u2022 \u2014 an intent which might easily have been made plain. The evidence of the act itself is to the contrary. As to the main accomplishment, abolishing oral wills, it leaves no doubt, expressly repealing everything in existing law repugnant to it. Beyond this no new policy is disclosed. Everything else embodied in the act was already provided for in the sections left unrepealed. These facts, with the facts that a special repealer was used and no general repealer of inconsistent provisions employed, point as strongly to lack of intent to make the act comprehensive, as the broad title and the unnecessary inclusion of a few provisions amounting to restatement or reenactment of existing law, point to a contrary intent.\nThe evidence appearing on the face of the act as compared with the then existing law \u25a0being equally balanced, our conclusion would be against a repeal by implication, since the intent to repeal must clearly appear. Considering the results which would follow, we are quite persuaded that no repeal py implication was contemplated. ,\nThe judgment is reversed. The cause will be remanded with a direction to grant appellants a trial by jury. It is so ordered.\nBICKLEY, C. J., and SADLER and HUDS-PETH, JJ., concur.\nNEAL, J., did mot participate.", "type": "majority", "author": "WATSON, J." } ], "attorneys": [ "Prank H. Patton, of Silver City, for appellants. /", "W. B. Walton and R. M. Wiley, both of Silver City, for appellee." ], "corrections": "", "head_matter": "16 P.(2d) 549\nIn re RIEDLINGER\u2019S WILL.\nNo. 3671.\nSupreme Court of New Mexico.\nNov. 26, 1932.\nRehearing Denied Dec. 17, 1932.\nPrank H. Patton, of Silver City, for appellants. /\nW. B. Walton and R. M. Wiley, both of Silver City, for appellee." }, "file_name": "0018-01", "first_page_order": 42, "last_page_order": 48 }