{ "id": 1573100, "name": "In the Matter of the ESTATE of William Grady HEAD, Deceased. Amelia D. POPPE and Guinevere E. Brady, Claimants-Appellants, v. Esther TAUTE, Claimant-Appellee, and Albuquerque National Bank, Personal Representative and Trustee-Appellee", "name_abbreviation": "Poppe v. Taute", "decision_date": "1980-07-03", "docket_number": "No. 4359", "first_page": "656", "last_page": "663", "citations": [ { "type": "official", "cite": "94 N.M. 656" }, { "type": "parallel", "cite": "615 P.2d 271" } ], "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": "78 N.M. 198", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5327058, 5326015 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0198-02", "/nm/78/0198-01" ] }, { "cite": "78 N.M. 181", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326397 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/nm/78/0181-01" ] }, { "cite": "198 So.2d 338", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9791494 ], "opinion_index": 0, "case_paths": [ "/so2d/198/0338-01" ] }, { "cite": "109 R.I. 592", "category": "reporters:state", "reporter": "R.I.", "case_ids": [ 3150185 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ri/109/0592-01" ] }, { "cite": "57 A.2d 44", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1948, "opinion_index": 0 }, { "cite": "141 N.J.Eq. 281", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 901902 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nj-eq/141/0281-01" ] }, { "cite": "47 N.M. 55", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562276 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/nm/47/0055-01" ] }, { "cite": "21 U.S. 174", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6136577 ], "weight": 3, "year": 1823, "opinion_index": 0, "case_paths": [ "/us/21/0076-01" ] }, { "cite": "45 L.R.A.,N.S., 606", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "year": 1913, "opinion_index": 0 }, { "cite": "140 N.W. 178", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1913, "opinion_index": 0 }, { "cite": "121 Minn. 34", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 215896 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/minn/121/0034-01" ] }, { "cite": "135 So. 541", "category": "reporters:state_regional", "reporter": "So.", "year": 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"case_ids": [ 10165045 ], "opinion_index": 0, "case_paths": [ "/sw2d/352/0496-01" ] }, { "cite": "152 N.E. 709", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "28 A.L.R.2d 1243", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1953, "opinion_index": 0 }, { "cite": "196 A.2d 294", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1964, "opinion_index": 0 }, { "cite": "413 Pa. 174", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1888667 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/pa/413/0174-01" ] }, { "cite": "44 A.L.R. 1306", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1926, "opinion_index": 0 }, { "cite": "151 N.E. 231", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1926, "opinion_index": 0 }, { "cite": "320 Ill. 389", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5160197 ], "year": 1926, "opinion_index": 0, 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"/iowa/193/1262-01" ] }, { "cite": "46 N.E.2d 443", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "547 S.W.2d 65", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9927137 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/sw2d/547/0065-01" ] }, { "cite": "306 P.2d 548", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1957, "opinion_index": 0 }, { "cite": "148 Cal.App. 88", "category": "reporters:state", "reporter": "Cal. App.", "year": 1957, "opinion_index": 0 }, { "cite": "551 S.W.2d 869", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9953865 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/sw2d/551/0869-01" ] }, { "cite": "170 A.2d 917", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1961, "opinion_index": 0 }, { "cite": "39 Del.Ch. 569", "category": "reporters:state", "reporter": "Del. Ch.", "case_ids": [ 722268 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/del-ch/39/0569-01" ] }, { "cite": "247 Iowa 785", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 4449696 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/iowa/247/0785-01" ] }, { "cite": "12 N.W.2d 899", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1944, "opinion_index": 0 }, { "cite": "234 Iowa 421", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8643358 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/iowa/234/0421-01" ] }, { "cite": "7 A. 682", "category": "reporters:state_regional", "reporter": "A.", "year": 1887, "opinion_index": 0 }, { "cite": "42 N.J.Eq. 569", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 8876322 ], "year": 1887, "opinion_index": 0, "case_paths": [ "/nj-eq/42/0569-01" ] }, { "cite": "266 S.W.2d 737", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10204231 ], "opinion_index": 0, "case_paths": [ "/sw2d/266/0737-01" ] }, { "cite": "240 Ark. 354", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1727366 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ark/240/0354-01" ] }, { "cite": "173 A. 613", "category": "reporters:state_regional", "reporter": "A.", "year": 1934, "opinion_index": 0 }, { "cite": "116 N.J.Eq. 368", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 940273 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/nj-eq/116/0368-01" ] }, { "cite": "210 F.Supp. 362", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 88739 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/f-supp/210/0362-01" ] }, { "cite": "142 S.W.2d 421", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10228544 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/sw2d/142/0421-01" ] }, { "cite": "44 N.E.2d 537", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "380 Ill. 554", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2554808 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/ill/380/0554-01" ] } ], "analysis": { "cardinality": 1162, "char_count": 24644, "ocr_confidence": 0.824, "pagerank": { "raw": 1.645407110643375e-07, "percentile": 0.6917845403342048 }, "sha256": "67476f1f117f88abc2ed4e9a5091b05d745e748edb079d90cc8c206984a2be67", "simhash": "1:4e679a9a36ff0186", "word_count": 4220 }, "last_updated": "2023-07-14T18:18:16.712923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ and ANDREWS, JJ., concur." ], "parties": [ "In the Matter of the ESTATE of William Grady HEAD, Deceased. Amelia D. POPPE and Guinevere E. Brady, Claimants-Appellants, v. Esther TAUTE, Claimant-Appellee, and Albuquerque National Bank, Personal Representative and Trustee-Appellee." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nThe trial court entered an Order that \u201cThe Revocable Trust Agreement between William Grady Head and Gertrude Head; his wife as \u2018Trustors\u2019 and the Albuquerque National Bank dated June 15, 1977 is declared to be valid and binding upon the parties hereto; however, the purported First Amendment is void and of no force and effect . .\u201d The Revocable Trust Agreement gave a 40% interest to each of the Heads\u2019 natural daughters, Amelia D. Poppe and Guinevere E. Brady (Poppe-Brady) and a 20% interest to Esther Taute (Taute) whom the Heads had raised. The Taute interest had been removed by the First Amendment and the Order of the trial court served to restore the 20% interest. Poppe-Brady appeal. Taute cross-appealed for failure of the trial court to allow all of her costs. We reverse as to the Poppe-Brady appeal and affirm as to the Taute appeal.\nThe trial court found:\nFor some years prior to his death on October 2, 1978, at the age of 87 years, Mr. Head had been mentally incompetent from time to time. He enjoyed what had been described as \u201cgood days,\u201d i. e., days of competency.\nMr. Head was mentally \u201ccompetent\u201d on the following dates and events:\n(a) June 8, 1965, the date he executed his Will.\n(b) March 2 and 22, 1976, the date Mr. Head executed a General Power of Attorney to Mrs. Head to act on his behalf.\n(c) June 15, 1977, the date he executed the Trust Agreement, deeds and instruments of conveyance.\nMr. Head was mentally \u201cincompetent\u201d on the following dates and events:\n(a) June 21, 1977 (six days after the Trust Agreement), when the First Amendment was executed which removed the 20% Taute interest.\n(b) July 14, 1977, when Mrs. Head ratified the First Amendment under her power of attorney.\nMrs. Head died on April 23, 1978, some five months before Mr. Head.\nThe trial court concluded that the First Amendment was void and that Taute was restored her 20% interest in the Trust Agreement.\nThe three main issues are:\n(1) Was Mr. Head mentally competent on June 21, 1977, the date the amendment was executed?\n(2) If not, was he mentally competent on July 14, 1977, the date Mrs. Head executed the ratification?\n(3) If not mentally competent at either event, did the Trust Agreement and Power of Attorney grant Mrs. Head the power to make the Amendment effective.\nA. On June 21, 1977, Mr. Head was of sufficient mental capacity to execute the Amendment.\nMr. Head was competent when the Trust Agreement was executed on June 15, 1977. A few days thereafter, Mrs. Head contacted Stanley Sager, attorney for herself and Mr. Head, and advised the attorney that she and Mr. Head did not want Taute to have anything.\nMr. Sager told her that Deborah Goncalves, his legal assistant, would come to her home and repeated:\n\u201cLet me know when Mr. Head is having a good day, not a bad day, and I\u2019ll send Debbie out.\u201d\nThe amendment was prepared and, on June 21, 1977, Deborah took the instrument to the Head residence for signature. The attorney felt that no problem existed about sending Deborah out on a \u201cgood day\u201d because she was an experienced individual. She met with Mr. and Mrs. Head. Mr. Head said \u201cHello\u201d and sort of \u201ckidded around.\u201d He made a comment about how tall she was. Mrs. Head read the document and told Mr. Head this was the instrument she had told him about. Mr. Head looked at the document and signed it. Deborah testified that nothing indicated Mr. Head was out of touch with the nature of the subject matter under discussion, or that he did not know what he was doing, or that he was incompetent. Deborah acknowledged his signature.\nMr. Sager testified that the First Amendment was a valid and binding instrument.\nWe reviewed the testimony of three doctors and four witnesses presented by Taute and find nothing to support the trial court\u2019s finding that Mr. Head was not competent at the time of the execution of the First Amendment on June 21, 1977. Taute relies primarily on the testimony of Dr. Don F. Seelinger, a neurologist. Dr. Seelinger examined Mr. Head at Presbyterian Hospital on July 26, 1977, about five weeks after the Amendment was signed. His hospital consultation record made no reference to Mr. Head\u2019s mental condition on June 21, 1977. Dr. Seelinger was not asked whether Mr. Head had a \u201cgood day\u201d or a \u201cbad day\u201d on June 21,1977, the day the Amendment was signed. He was specifically questioned about the execution of the Trust Agreement. He was asked these questions to which he gave these answers:\nQ. [Cjould you tell this Court with any degree of certainty whether Mr. Head, some six weeks prior, could have validly executed a Trust document?\nA. [I]t\u2019s not possible to state absolutely that he could or could not have, but I found inconsistency, and still do, with the history given by his wife and the daughter.\nQ. Now that\u2019s the part that confuses me a little bit, Doctor. Based solely on your objective findings, you tell me you cannot state with certainty whether he could or could not execute that document on that particular day at that time, isn\u2019t that true ?\nA. That is correct. [Emphasis added.]\nFrom other testimony, we are convinced that Dr. Seelinger would be unable to present substantial evidence that Mr. Head was mentally incompetent on June 21, 1977, the date the Amendment was signed. He was asked this question to which he gave this answer.\nQ. Doctor, if this was a steadily progressing bilateral brain condition, would you anticipate that five weeks earlier he would have been in very little different condition than when you saw him?\nA. Well he was sick when I saw him, so I saw him at low tide. And when I said he had limited cerebral reserve, what I was saying was that brain function was off, and by history markedly impaired, and that grew worse in unfamiliar surroundings and grew worse with illness. [Emphasis added.]\nBased upon this testimony and the law there was no substantial evidence to support the trial court\u2019s finding that Mr. Head was mentally incompetent on June 21, 1977, the date he executed the First Amendment.\nThe question before us is:\nDid Mr. Head, at the time he executed the First Amendment, have sufficient mental capacity to understand the consequences and effects of the same?\nThe test of mental capacity is whether a person is capable of understanding in a reasonable manner, the nature and effect of the act in which the person is engaged. Jackson v. Pillsbury, 380 Ill. 554, 44 N.E.2d 537 (1942); Kimmell v. Tipton, 142 S.W.2d 421 (Tex.Civ.App. 1940); Harrison v. City National Bank of Clinton, Iowa, 210 F.Supp. 362 (S.D.Iowa 1962); Turner v. Cole, 116 N.J.Eq. 368, 173 A. 613 (1934).\nTo invalidate a trust instrument, mental incompetency must be operative at the time of the execution of the instrument. Union National Bank of Little Rock v. Smith, 240 Ark. 354, 400 S.W.2d 652 (1966); Creek v. Union Nat. Bank in Kansas City, 266 S.W.2d 737 (Mo.1954); Davren v. White, 42 N.J.Eq. 569, 7 A. 682 (1887). The presumption is in favor of competency. To show the contrary, the burden of proof rests on him who so alleges to establish the same by clear, satisfactory and convincing proof. Harrison, supra. Leonard v. Leonard, 234 Iowa 421, 12 N.W.2d 899 (1944); Stephenson v. Stephenson, 247 Iowa 785, 74 N.W.2d 679 (1956); Taylor v. Howett, 39 Del.Ch. 569, 170 A.2d 917 (1961); Webb v. St. Louis County Nat. Bank, 551 S.W.2d 869 (Mo.App. 1977); Fleishman v. Blechman, 148 Cal.App. 88, 306 P.2d 548 (1957); Turner, supra.\nThe reason the presumption of competency exists is due to the fact that mental incompetence is a condition of degree. It may vary from idiocy to almost ordinary mental strength.\nMr. Head was not a person of strong, healthy intellect. His mental powers were to some extent impaired. This had been his condition from time to time. But the fact that the mind is disordered or diseased as to any one of its parts, or, that its healthy operation is in any function disturbed, is not a mental incompetence which affects the whole mind. If the peculiar phase of mania had no influence upon the act brought into question, such act is not in law invalidated. It would not render Mr. Head legally incompetent, incapable of entering into a civil contract, execute a trust or an amendment thereof.\n\u201c[T]he mental disease causing insanity has no definite boundary at which a person loses capacity. Thus, one may have capacity to make a will without having capacity to conduct an intricate business transaction. Even where there is a pronounced mental incompetency, there may be ratification of previously executed transactions during lucid intervals. The matter is too amorphous for a statement of a definite rule.\u201d [Emphasis added.] Restatement 2d Agency \u00a7 122, comment d, p. 311 (1958).\nIn Jensen v. Kisro, 547 S.W.2d 65 (Tex. Civ.App.1977), Mrs. Jensen executed a power of attorney on January 20, 1964. On October 21, 1970, the agent sold 300 shares of stock in reliance on the power of attorney. At 4:00 a. m. that morning, Mrs. Jensen, 80 years of age, was readmitted to the hospital. \u201cShe was very sick. Toxic. Confused.\u201d She was totally incapacitated and unable to communicate as a result of an acute illness. In reversing a summary judgment for plaintiff, the court quoted at length from Restatement, supra, and adopted the language of 2A C.J.S. Agency \u00a7 141a, p. 761 (1972). The court held that on October 21, 1970, Mrs. Jensen did not lack mental capacity to sell the stock.\nThe question is not whether the mind of Mr. Head was in anywise affected or impaired, but whether he, at the time of signing the First Amendment, was enjoying a lucid interval. Admitting that Mr. Head was subject to some delusion, or that his mind was in some faculty impaired, it does not mean that he lacked a lucid interval at the time he signed the First Amendment. .The action of the unimpaired faculties of the mind will supply a lucid interval. Although the mental power may be reduced below the ordinary standard, yet, if there be sufficient intelligence to understand and appreciate the act, the mental ability to execute the instrument remains, and the execution thereof is valid. It is enough if the mental faculties retained sufficient strength to comprehend the act to be done.\nThe presumption of competency was not overcome. This presumption was supported by the testimony of Sager and Deborah and by the rule that an adjudication of insanity is at most presumptive evidence as to the mental capacity of a person at the time of a transaction. Losh v. Winters Nat. Bank & Trust Co., 46 N.E.2d 443 (Ohio App.1942). The strength of the presumption is lessened in proportion to the remoteness of the adjudication. Jones v. Schaffner, 193 Iowa 1262, 188 N.W. 787 (1922).\nDr. Seelinger\u2019s testimony did not establish any fact, nor any reasonable inference to be drawn therefrom, that Mr. Head was incompetent or had a \u201cbad day\u201d on June 21, 1977, the date the First Amendment was signed. To judicially determine whether Mr. Head was, in a legal sense, mentally incompetent, we must have facts upon which Dr. Seelinger would have formed an opinion. He did not examine Mr. Head on June 21, 1977; neither was he present. He would not know whether Mr. Head had a \u201cgood day\u201d or a \u201cbad day,\u201d or whether he had a lucid interval. If a person\u2019s mind is affected or impaired, the question is whether he, at the time of the execution of the instrument, was enjoying a lucid interval. \u201cEven a lunatic may make a will or a sale of property in a lucid interval.\u201d Murray v. Barnett National Bank of Jacksonville, 74 So.2d 647 (Fla.1954).\nFor Dr. Seelinger\u2019s testimony to be effective, he would have had to testify that Mr. Head could not have had a lucid interval at the time he signed the First Amendment.\nWhen we view a Trust Agreement and Amendment thereto executed within six days of each other, it is illogical to hold one valid and the other invalid if we accept medical testimony of mental incompetence, general in time sequence, that does not focus on any lucid intervals. It is logical to find one instrument valid and the other invalid if evidence is strong and convincing in nature that a lucid interval occurred on one occasion and not the other. Even if we do not accept the testimony of Sager and Goncalves, the presumption is that on June 21,1977, Mr. Head was mentally competent. This presumption was not overcome.\nWritten instruments executed by persons merit a presumption of validity as a matter of public policy unless interested persons who attack them produce evidence and facts to the contrary that are relevant and substantial of a convincing nature.\nIt is undisputed that Mr. Head had \u201cgood days\u201d and \u201cbad days.\u201d Mr. Sager testified that the Amendment was a valid and binding document. His legal assistant\u2019s testimony indicated that Mr. Head had a \u201cgood day.\u201d We have found no evidence, facts or inferences of a convincing nature that Mr. Head had a \u201cbad day\u201d on June 21, 1977.\nIn any event, we have not found substantial evidence to support the trial court\u2019s finding that Mr. Head was mentally incompetent on June 21, 1977, the date the Amendment was executed.\nB. The Trust Agreement was ratified on July 14, 1977.\nOn July 14, 1977, Emma Head as attorney-in-fact for Mr. Head executed a Ratification of Trust Agreement. It reads:\nThe undersigned, EMMA HEAD, hereby ratifies and confirms all of the terms and conditions set forth in that certain Trust Agreement dated the 15th day of June, 1977, in which Emma Head and William Grady Head are Trustors, and The Albuquerque National Bank is Trustee; this ratification being made for and on behalf of William Grady Head by the undersigned as his attorney-in-fact pursuant to a power of attorney dated the 22nd day of March, 1976, a copy of which is attached hereto.\nThe trial court found that \u201cMr. Head was not competent at the time of the ratification of the Trust Agreement by Mrs. Head pursuant to the - Power of Attorney of March 22, 1976, on July 14, 1977.\u201d Based upon the reasons given under Point A, we can find no substantial evidence to support this finding. The power having been exercised by Mrs. Head as agent during the competency of Mr. Head, as principal, the ratification was valid.\nNeither Taute nor the court questioned the power of Mrs. Head to ratify the Trust Agreement some 21 days after the Amendment was signed. Did Mrs. Head have the power to do so even though Mr. Head was mentally incompetent on July 14, 1977?\nOn March 22, 1976, Mr. Head, who was then competent, executed a General Power of Attorney to Mrs. Head. It reads in pertinent part:\nThe undersigned, WILLIAM GRADY HEAD . does hereby make, constitute and appoint EMMA GERTRUDE HEAD, as his true and lawful attorney, for him and in his name, place and stead, to do and perform any and all acts which the undersigned might do for himself, intending hereby to give to the said EMMA GERTRUDE HEAD his general power of attorney, without limitations within the period stated below.\n* * * * * *\nThe undersigned hereby ratifies and confirms all that the said attorney-in-fact shall lawfully do or cause to be done by virtue of this General Power of Attorney.\nThis Power of Attorney shall continue in force and effect until revoked by means of a written revocation filed in the office of the County Clerk of Bernalillo County, New Mexico. [Emphasis added.]\nParagraph 6 of the Trust Agreement provided in pertinent part:\nDuring the lifetime of the Trustor EMMA GERTRUDE HEAD . . . her written instructions to the Trustee shall prevail upon and be binding upon the Trustee as to all matters concerning the trust estate . . [Emphasis added.]\nWe have before us a General Power of Attorney granted Mrs. Head \u201cwithout limitation\u201d mandated to continue in force and effect until revoked, and a Trust Agreement that gave her full power to bind the Trustee \u201cas to all matters concerning the trust estate.\u201d These broad and expansive powers transformed Mrs. Head from a \u201cnaked agent\u201d for Mr. Head into a principal who could act in her own name with reference to any amendment, revocation or rati1 fication of the Trust Agreement regardless of the mental competency or incompetency of Mr. Head.\nThe Power of Attorney was acknowledged before Deborah Goncalves and was never revoked.\nWe have been referred to \u00a7 45-5-501, N.M.S.A.1978 of the Probate Code which provides for power of attorney not affected by disability. It reads in pertinent part:\nWhenever a principal designates another his attorney-in-fact or agent by a power of attorney in writing and the writing contains the words, \u201cThis power of attorney shall not be affected by disability of the principal,\u201d or \u201cThis power of attorney shall become effective upon the disability of the principal,\u201d or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding his disability, the authority of the attorney-in-fact or agent is exercisable by him as provided in the power on behalf of the principal notwithstanding later disability or incapacity of the principal . . .. All acts done by the attorney-in-fact or agent pursuant to the power during any period of disability . have the same effect . of and bind the principal as if the principal were alive and not disabled. . [Emphasis added.]\nOur research does not disclose any cases decided under this section in any jurisdiction that has adopted the Uniform Probate Code. The National Conference of Commissioners on Uniform Laws in 1979, approved the \u201cUniform Durable Power of Attorney Act\u201d which is identical to the approved amended Part V of the Uniform Probate Code. No states, as yet, have adopted this statute. The Commissioners\u2019 Prefatory Note states:\n. The only requirement is that an instrument creating a durable power contain language showing that the principal intends the agency to remain effective in spite of his later incompetency.\nIn an instrument of this character, it is encumbent upon us to constantly keep in view the nature and purpose of the instrument to be construed and the intention of the person who grants the authority. Watkins v. Hagerty, 104 Neb. 414, 177 N.W. 654 (1920).\nIn 1976, it was known to Mr. and Mrs. Head that due to the age of Mr. Head and the mental deterioration that accompanies it, they believed that the best interest of Mr. Head would be served by delegating his power to his wife to act \u201cwithout limitation.\u201d This power was carried forward in the Trust Agreement on June 15, 1977. We believe that a power granted a wife to act \u201cwithout limitation\u201d are \u201csimilar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding later disability or incapacity of the principal.\u201d \u201c \u2018[Disabled\u2019 is often applied in the law to physical as well as mental capacity.\u201d Jensen, supra, 547 S.W.2d 67. It logically follows that the purpose of the General Power of Attorney and the Trust Agreement, both prepared by lawyers and pursuant to legal advice, was to grant Mrs. Head, during the lifetime of Mr. Head, such power to act as to avoid litigation such as that which occurred in this case. In effect, \u00a7 45-5-501 replaces the common law power of attorney coupled with an interest.\nA power of attorney is revoked by operation of law upon an adjudication of insanity. In re Berry\u2019s Estate, 69 Misc.2d 397, 329 N.Y.S.2d 915 (1972); Dann v. Sands, 38 A.D.2d 661, 327 N.Y.S.2d 222 (1971); Jackson v. Hall, 139 Kan. 832, 32 P.2d 1055 (1934); Harrington v. Bailey, 351 S.W.2d 946 (Tex.Civ.App.1961); Evans v. York, 217 S.W.2d 749 (Mo.App.1949), unless the power is irrevocable. If the agent\u2019s authority is \u201ccoupled with an interest\u201d the principal\u2019s insanity does not terminate the agency. Witherington v. Nickerson, 256 Mass. 351, 152 N.E. 707 (1926); McNerney v. Aetna Life Ins. Co., 130 N.Y.S.2d 152, 284 App.Div. 21 (1954), aff\u2019d, 308 N.Y. 916, 127 N.E.2d 79 (1955); Johnson v. National Bank of Mattoon, 320 Ill. 389, 151 N.E. 231, 44 A.L.R. 1306 (1926); Mid-City Federal Savings & Loan Ass\u2019n of Phila. v. Allen, 413 Pa. 174, 196 A.2d 294 (1964). Annot., What constitutes power coupled with interest within rule as to termination of agency, 28 A.L.R.2d 1243 (1953). As Witherington, supra, said:\nIf a principal becomes insane before the agent has performed his undertaking, the agency is terminated or suspended by operation of law, except in the cases where a consideration has previously been advanced so that the power became coupled with an interest . .. [152 N.E. 709.]\n\u201cCoupled with an interest\u201d means that the agent must have a present interest in the property upon which the power is to operate. There must be a beneficial interest in the thing itself which is the subject of the power. Wall v. Ayrshire Corporation, 352 S.W.2d 496 (Tex.Civ.App.1961); Eduardo Fernandez Y Compania v. Longino & Collins, 199 La. 343, 6 So.2d 137 (1942); Harris v. Owens, 142 Ohio St. 379, 52 N.E.2d 522 (1943); Bowling v. National Convoy & Trucking Co., 101 Fla. 634, 135 So. 541 (1931); Citizens\u2019 State Bank v. E. A. Tessman & Co., 121 Minn. 34, 140 N.W. 178, 45 L.R.A.,N.S., 606 (1913). The landmark opinion in this field is Chief Justice Marshall\u2019s opinion in Hunt v. Rousmanier's Administrators, 21 U.S. 174, 8 Wheat. 174, 5 L.Ed. 589 (1823). See, In re Ward\u2019s Estate, 47 N.M. 55, 134 P.2d 539 (1943).\nAs a .trustor, Mrs. Head had a present existing interest in the trust estate and in the distribution of the property held in trust. It was independent of the power conferred. It was of primary importance that she determine the beneficiaries of the trust. If she desired to restore her community property interest, she could have revoked the trust. She had an interest in the subject upon which the power was to be exercised. She had a power of attorney coupled with an interest.\nMrs. Head sought to exercise her power of attorney with reference to the Trust Agreement. A \u201ctrust\u201d is the beneficial ownership of property of which the legal title is in another. Maihack v. Mehl, 141 N.J.Eq. 281, 57 A.2d 44 (1948); Lux v. Lux, 109 R.I. 592, 288 A.2d 701 (1972). Mr. and Mrs. Head were the joint beneficial owners of the trust property. Mrs. Head was a trustor along with her husband. She had the right at any time during his lifetime to amend or revoke the trust. Her Power of Attorney was \u201ccoupled with an interest\u201d in the trust estate and was irrevocable. See, Millman v. First Federal Savings and Loan Ass\u2019n, 198 So.2d 338 (Pla.App.1967) where a husband gave his wife a power of attorney over a joint savings account in the name of the husband and step-daughter and was subsequently adjudged an incompetent.\nThe Trust Agreement was validly ratified on July 14, 1977, regardless of the mental competency of Mr. Head.\nC. The trial court did not err in failing to allow appellee Taute all of her costs.\nOn cross-appeal Taute contends that the trial court erred in failing to allow all of her costs.\nRule 54(d) N.M.R.Civ.Proc. provides that \u201c. . . costs shall be allowed as of course to the prevailing party unless the court otherwise directs . . ..\u201d As Poppe-Brady have correctly pointed out, Taute did not prevail in all respects at trial. Taute took the position that both the Trust Agreement itself and the First Amendment were void; she thus prevailed only as to the First Amendment.\nThis Court has held that pursuant to the above-cited rule,\nthe matter of assessing costs . lies within the discretion of the trial court, and an appellate court will not interfere with the trial court\u2019s exercise of this discretion in this regard, except in the case of abuse. Hales v. Van Cleave, 78 N.M. 181, 185, 429 P.2d 379 (1967), cert. denied, 78 N.M. 198, 429 P.2d 657 (1967).\nWe find that the trial court did not abuse its discretion in awarding Taute partial costs.\nAs to the Poppe-Brady appeal, this cause is reversed and remanded to the district court to enter judgment that the First Amendment executed by William Grady Head on June 21, 1977, is valid and that Esther Taute take nothing under her claim.\nAs to the Taute appeal, the award of costs entered by the district court is affirmed.\nPoppe-Brady shall recover their costs in this appeal.\nIT IS SO ORDERED.\nLOPEZ and ANDREWS, JJ., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Arthur H. Coleman, Coleman & Marino, P. C., Albuquerque, for claimants-appellants.", "Bruce P. Moore, Santa Fe, for claimantappellee Taute." ], "corrections": "", "head_matter": "615 P.2d 271\nIn the Matter of the ESTATE of William Grady HEAD, Deceased. Amelia D. POPPE and Guinevere E. Brady, Claimants-Appellants, v. Esther TAUTE, Claimant-Appellee, and Albuquerque National Bank, Personal Representative and Trustee-Appellee.\nNo. 4359.\nCourt of Appeals of New Mexico.\nJuly 3, 1980.\nWrit of Certiorari Denied Aug. 1, 1980.\nArthur H. Coleman, Coleman & Marino, P. C., Albuquerque, for claimants-appellants.\nBruce P. Moore, Santa Fe, for claimantappellee Taute." }, "file_name": "0656-01", "first_page_order": 692, "last_page_order": 699 }