{ "id": 1571460, "name": "In re AKIN'S ESTATE. AMENT v. WATKINS et al.", "name_abbreviation": "Ament v. Watkins", "decision_date": "1937-09-28", "docket_number": "No. 4276", "first_page": "566", "last_page": "571", "citations": [ { "type": "official", "cite": "41 N.M. 566" }, { "type": "parallel", "cite": "72 P.2d 21" } ], "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": "8 P.(2d) 959", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "167 Wash. 185", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 849907 ], "opinion_index": 0, "case_paths": [ "/wash/167/0185-01" ] }, { "cite": "76 A.L.R. 622", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "29 Ohio St. 379", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 332199 ], "year": 1902, "opinion_index": 0, "case_paths": [ "/ohio-st/29/0379-01" ] }, { "cite": "164 N.Y.S. 1060", "category": "reporters:state", "reporter": "N.Y.S.", "year": 1902, "opinion_index": 0 }, { "cite": "100 Misc. 84", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 718991 ], "year": 1902, "opinion_index": 0, "case_paths": [ "/misc/100/0084-01" ] }, { "cite": "2 N.W. 810", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1902, "opinion_index": 0 }, { "cite": "41 Mich. 540", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1414823 ], "year": 1902, "opinion_index": 0, "case_paths": [ "/mich/41/0540-01" ] }, { "cite": "45 Am.Dec. 424", "category": "reporters:federal", "reporter": "Am. Dec.", "year": 1902, "opinion_index": 0 }, { "cite": "2 Barb.Ch. (N.Y.) 40", "category": "reporters:state", "reporter": "Barb. Ch.", "case_ids": [ 1995734 ], "year": 1902, "opinion_index": 0, "case_paths": [ "/barb-ch/2/0040-01" ] }, { "cite": "24 N.Y. 51", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2029461 ], "opinion_index": 0, "case_paths": [ "/ny/24/0051-01" ] }, { "cite": "35 Am.Dec. 367", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "12 Cush. (Mass.) 332", "category": "reporters:state", "reporter": "Cush.", "case_ids": [ 1972304 ], "opinion_index": 0, "case_paths": [ "/mass/66/0332-01" ] }, { "cite": "141 N.E. 669", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "247 Mass. 138", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 748966 ], "opinion_index": 0, "case_paths": [ "/mass/247/0138-01" ] }, { "cite": "50 P.(2d) 78", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "59 P.(2d) 90", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "6 Cal.(2d) 730", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2243792 ], "opinion_index": 0, "case_paths": [ "/cal-2d/6/0730-01" ] }, { "cite": "76 A.L.R. 604", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "327 Mo. 1098", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8737443 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/mo/327/1098-01" ] } ], "analysis": { "cardinality": 670, "char_count": 13725, "ocr_confidence": 0.703, "pagerank": { "raw": 9.145226609039328e-08, "percentile": 0.5080765326472702 }, "sha256": "609a4bbdeb9a1e1ca29de76725cf53ba9d34f3b292539b2b3df1c42ec5039724", "simhash": "1:17f27d8aeef42f29", "word_count": 2474 }, "last_updated": "2023-07-14T18:20:24.817176+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HUDSPETH, C. J., and SADLER, BICKLEY> and ZINN, JJ., concur," ], "parties": [ "In re AKIN'S ESTATE. AMENT v. WATKINS et al." ], "opinions": [ { "text": "BRICE, Justice.\nThis appeal was taken from a judgment of the district court of Luna county in an action to contest the will of Martha C. B.' Akin, deceased, adjudging that such will was in fact the will of the testatrix.\nA number of grounds were alleged in the petition to defeat the will, but all abandoned except one to the effect that the will was not executed as provided by sections 154-105 and 154-108, Ann.Comp.St. 1929, which are:\n\u201cAll 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.\u201d Section 154-105.\n\u201cThe 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 Section 154-108.\nThe court made numerous findings of fact, most of them evidentiary and unnecessary to a determination of the case; but it is agreed that all facts necessary to support the district court\u2019s judgment were proven except the manner of the execution of the will. '\nThe will was dated December 23, 1931; the testatrix died on the 8th day of May, 1935, in Luna county, N. M.; the will was duly probated as the last will and testament of the alleged testatrix, on the 10th day of June, 1935, and the contest peti-. tion was filed December 26th following.\nThe instrument (except the word \u201cwitnesses\u201d and their signatures) was in the handwriting of the testatrix and her purported signature thereto was in fact her genuine signature. Beneath her signature was the word \u201cwitnesses,\u201d and underneath that word were the genuine signatures of W. P. B. McSain and J. J. Aragon, Jr.\nThe closing of the will, including the signatures of the testatrix and witnesses, is as follows:\n\u201cIn witness thereof\n\u201cI Martha Chesebrough Burdick Akin have here unto subscribed my hand this day\n\u201cMartha Chesebrough Burdick Akin\n\u201cDecember 23rd, 1931\n\u201cWitnesses\n\u201cWm. P. D. McSain\n\u201cJ. J. Aragon, Jr.\u201d\nThe substance of the district court\u2019s findings of fact, Nos. 12, 13, and 14, is: The will was signed by the testatrix as and for her last will and testament on the 23rd day of December, 1931, at the First National Bank of Las Cruces, N. M., in the presence of W. P. B. McSain and J. J. Aragon, Jr., who saw the testatrix sign the same as stated by her, as and for her last will and testament, and, at.her request and in her presence and in the presence of each other, the said McSain and Aragon signed the will as subscribing witnesses. That in fact it was duly executed with all the formalities required by the New Mexico statutes.\nIt is these findings of fact only that are attacked. The question is whether .they were established by substantial evidence.\nThe witness W. P. B. McSain died in 1933, and the only testimony of appellee with reference to the execution of the will was that, of Mrs. Florence Watkins, a daughter of the testatrix, and J. J. Aragon, Jr., the only living witness to the execution of the will.\nMrs. Watkins testified that in December, 1931, she took her mother from Deming, N. M., to El Paso, Tex.; that her mother stopped at the First National Bank of Las Cruces to see Mr. McSain, who was an old friend. When her mother came back to the automobile\u2019, she said, \u201cThat is done.\u201d Witness did not know her mother\u2019s purpose in going into the bank; that she had found the will in her mother\u2019s home' at a place where her mother told her it would be in case of her death; that it was in her mother\u2019s handwriting.\nJ. J. Aragon, Jr., one of the subscribing witnesses to the will, testified that on December 23, 1931, he was an assistant cashier of the First National Bank of Las Cruces; that he had known W. P. B. Mc-Sain, the other subscribing witness, Since 1928; that he and Mr. McSain saw Mrs. Akin sign her name to the will, and that Mr. McSain and Mrs. Akin were both present at the time he and Mr. McSain signed as subscribing witnesses; that the genuine signatures of himself and Mr. McSain appear thereon; that he signed it in the presence of Mr. McSain and Mrs. Akin, but that he did not know whether at Mrs. Akin\u2019s or Mr. McSain\u2019s request, or both; that Mr. McSain signed it in the presence of Mrs. Akin and the witness, but he did not know at whose request.\nThis testimony was greatly weakened by his further examination in which he stated in substance that he had only a faint recollection of what took place; that it was several years ago and he did not remember all the details; that he did not recall where it was signed; that he was often called upon to witness wills and other ini struments at the bank and to take acknowledgments; . that the signature of Mrs. Akin must have been affixed when he signed as a witness, else he would not have witnessed it; nor would he have done so unless he had been requested so to do. He stated: \u201cI don\u2019t remember seeing anybody sign it. Evidently I was asked to witness it or I wouldn\u2019t. I don\u2019t remember anything about it except, like I said, I witnessed it, and I was asked to witness it. I don\u2019t believe I would have witnessed a signature unless the principal signed in my presence and before I signed it as a witness. I wrote to Mr. Pollard (Proponent\u2019s attorney) that I did not remember witnessing Mrs. Akin\u2019s will. However, my signature appeared on it as a witness. At that time I had no independent recollection of the transaction whatever, and any recollection I have now is based on the fact that my name appears on the instrument as a witness. I don\u2019t remember where the paper was signed nor where Mr. McSain and Mrs. Akin were at the time. At that time I was working at the window and Mr. Mc-Sain worked toward the front, next to the window. I don\u2019t remember whether Mrs. Akin came into the bank. I never knew her, and don\u2019t ever remember seeing her. I must have seen her; I witnessed the will. The only way I can fix the date is because it appears on the will. It looks to me like the signatures are written in different ink. I wrote mine with my fountain pen. Mr. McSain\u2019s signature is written in a different ink from any of the others. My recollection is based entirely on the instrument itself to a certain extent. I knew what the instrument was when I signed it, but have no independent recollection of it. I don\u2019t remember whether Mrs. Akin said: \u2018This is my will\u2019 or whether she asked me to sign as a witness, or whether Mr. McSain or both of them did. I wouldn\u2019t witness anybody\u2019s signature unless I saw them sign it; I could not say whether I would or not. I have no recollection of seeing Mrs. Akin sign the paper; nor that Mrs. Akin stated what the paper was; but Mrs. Akin or Mr. McSain, or both, asked me to sign it. I know some one requested me to sign it because my name is- on- it and I would not have done it otherwise.\u201d\nThe whole effect of this testimony is that the witness has no distinct recollection of the transaction, or any of its details. His name appears on the will as a witness, and from this he draws the conclusions to which he first testified. He has, as he states, only a faint recollection of .the matter.\nAppellant introduced no testimony regarding the execution of the will. It is established as a fact and admitted by appellant that the instrument is in the handwriting of the testatrix; that her genuine signature is subscribed thereto; that the word \u201cwitnesses\u201d appears below and to the left of her signature; underneath which are the genuine signatures of W.- P. B. McSain, who is dead, and J. J. Aragon, Jr., who recalled none of the details of the transaction, but had \u201ca faint recollection\u201d that such transaction occurred; that he would not have witnessed the signature of testatrix unless she had signed first and in his presence, and unless he had been asked to do so.\nWhile we are limited to the one question, that of the proper execution of the will; though the fact that it is a holographic will indicates it was deliberately made for her will and last testament. There is no suggestion in the testimony of fraud or undue influence;\nSuch is the frailty of human recollection that in an incredibly short time the average person will forget such details.as occur in the execution of documents, though, from his habits of care or otherwise, he may be entirely certain in his own mind of facts he cannot remember. The witness Aragon testified that he would not sign his name as a witness to the signature of a person he did not know unless he saw him write it.\nIt has been held innumerable times by the courts of this country and England that a complete attestation clause above the signature of witnesses to a will raises a presumption of the due execution of the will, if the signatures of the testator and witnesses are proven to be genuine. German Evangelical Bethel Church of Concordia v. Reith, 327 Mo. 1098, 39 S.W.(2d) 1057, 76 A.L.R. 604, and annotations at page-617; and it is generally held, and we so hold, that in the absence of an attestation clause, if the will is subscribed by the genuine signature of the testator with the genuine signatures of two persons under the word \u201cwitnesses\u201d below the signature of the testator, that the same rule applies' if the subscribing witnesses are dead or cannot recall with certainty any of the details of the transaction.\nAnd such should be the rule; for, if the proponent of a will is compelled to establish its due execution by affirmative testimony unaided by such presumptions,* in practically all similar cases wills will be canceled, not because of any failure to comply with the law in their execution, but because of the frailty of human recollection.\n\u25a0 The statutes of California and Massachusetts regarding the manner of executing wills are almost identical, and in'substance\u2019 the same as those of New Mexico. The identical question has been before the courts of those states with like holding.\nIt was said in Re Pitcairn\u2019s Estate, 6 Cal.(2d) 730, 59 P.(2d) 90, 92:\n\u201cIt is sometimes suggested that the recitals in the attestation clause furnish the' basis for the presumption, so that the court in upholding the will against contradictory evidence is really making a finding from the declarations in the instrument. Following this theory contestants seek to limit the presumption to cases where a full attestation clause is contained in the will.\n\u201cIn our view the distinction thus drawn is illogical and the rule is too narrow. There is no need of an \u2018attestation clause!; it is sufficient that a will be witnessed or attested, and the recital of the steps in execution is not required. 68 C.J. 711, \u00a7 392. It does not seem reasonable, therefore, to have the important presumption of due execution turn upon the presence or absence of this unnecessary provision. The foundation of the presumption is the proof of genuineness of the signatures, for the instrument is then on its face a valid will. Doubtless recitals in an attestation clause are entitled to greater weight, but the logical basis for the presumption, as well as its practical necessity, are the same whether or not there is such a clause.\u201d\nThat case affirmed the District Court of Appeals, the opinion of which is reported in 50 P.(2d) 78.\nIn a similar case it was stated by the Supreme Judicial Court of Massachusetts in Leatherbee v. Leatherbee, 247 Mass. 138, 141 N.E. 669, 670: \u201cThere is no statu-. tory provision that an instrument drafted m the similitude of a formal will shall not be set up because the witnesses are dead, are insane, are beyond the jurisdiction of the court, or, after a lapse of many years, are unable to recollect anything material' to the execution of the will other than the fact that the signatures to the proffered instrument are those of the testator, and of the persons who appear as witnesses ty>on it. Such a rule would make the validity of the will dependent, not upon the order and time of affixing signatures, not upon the capacity of the testator to execute a will, nor upon the absence of fraud and undue influence, but upon the fullness, accuracy, and persistency of the recollection of one or more of the persons who signed it, as a witness.\u201d\nTo the same effect is Nickerson v. Buck, 12 Cush. (Mass.) 332; Dewey v. Dewey, 1 Metc. (Mass.) 349, 35 Am.Dec. 367; Orser v. Orser, 24 N.Y. 51; Jauncey v. Thorne, 2 Barb.Ch. (N.Y.) 40, 45 Am.Dec. 424; Abbott v. Abbott, 41 Mich. 540, 2 N.W. 810; Re Rosenthal\u2019s Will, 100 Misc. 84, 164 N.Y.S. 1060; Carpenter v. Denoon, 29 Ohio St. 379; In re Peverett (1902) Probate (Eng.) 205; Scarff v. Scarff (1927) 1 Ir.R. 13; (See annotations in 76 A.L.R. 622); German Evangelical Church v. Reith, supra; 1 Page on Wills, \u00a7 675. The Supreme Church of Washington holds to the contrary. In re Chafey\u2019s Estate, 167 Wash. 185, 8 P.(2d) 959.\nThe appellee made prima facie proof ^ the execution of the will com_ plied with the requirements of the statute, and these facts were admitted. oniy the presmnptions of due execution following such proof were denied\nThe lament of the district court is affirme and ZINN, JJ., concur,", "type": "majority", "author": "BRICE, Justice." } ], "attorneys": [ "Wilson & Woodbury, of Silver City, and Mae M. Ament, of Alpine, Tex., for appellant.", "A. W. Pollard and A. W. Marshall, both of Deming, for appellees." ], "corrections": "", "head_matter": "72 P.(2d) 21\nIn re AKIN'S ESTATE. AMENT v. WATKINS et al.\nNo. 4276.\nSupreme Court of New Mexico.\nSept. 28, 1937.\nWilson & Woodbury, of Silver City, and Mae M. Ament, of Alpine, Tex., for appellant.\nA. W. Pollard and A. W. Marshall, both of Deming, for appellees." }, "file_name": "0566-01", "first_page_order": 596, "last_page_order": 601 }