{ "id": 1577285, "name": "In the Matter of the ESTATE OF Candido MARTINEZ, Deceased. Magdalena L. MARTINEZ, et al., Plaintiffs-Appellees, v. Vincente H. ANDERSON, et al., Defendants-Appellants", "name_abbreviation": "Martinez v. Anderson", "decision_date": "1981-07-16", "docket_number": "No. 4959", "first_page": "619", "last_page": "626", "citations": [ { "type": "official", "cite": "96 N.M. 619" }, { "type": "parallel", "cite": "633 P.2d 727" } ], "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": "70 N.M. 46", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2849852 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0046-01" ] }, { "cite": "91 N.E. 364", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1910, "opinion_index": 0 }, { "cite": "46 Ind.App. 405", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 5048917 ], "year": 1910, "opinion_index": 0, "case_paths": [ "/ind-app/46/0405-01" ] }, { "cite": "31 N.E. 946", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1892, "opinion_index": 0 }, { "cite": "132 Ind. 355", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1400657 ], "year": 1892, "opinion_index": 0, "case_paths": [ "/ind/132/0355-01" ] }, { "cite": "94 N.M. 255", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573083 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/94/0255-01" ] }, { "cite": "130 S.E. 771", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1925, "opinion_index": 0 }, { "cite": "144 Va. 816", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 468442 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/va/144/0816-01" ] }, { "cite": "8 N.E. 796", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1886, "opinion_index": 0 }, { "cite": "119 Ill. 170", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2900791 ], "year": 1886, "opinion_index": 0, "case_paths": [ "/ill/119/0170-01" ] }, { "cite": "94 N.W. 463", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1903, "opinion_index": 0 }, { "cite": "120 Iowa 71", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8645676 ], "year": 1903, "opinion_index": 0, "case_paths": [ "/iowa/120/0071-01" ] }, { "cite": "37 N.M. 427", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575430 ], "weight": 2, "year": 1933, "opinion_index": 0, "case_paths": [ "/nm/37/0427-01" ] }, { "cite": "26 A.L.R. 1089", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1923, "opinion_index": 0 }, { "cite": "80 N.M. 214", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356358 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0214-01" ] }, { "cite": "57 N.M. 328", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841815 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/57/0328-01" ] }, { "cite": "65 N.M. 474", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2845419 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/65/0474-01" ] }, { "cite": "65 N.M. 440", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2847370 ], "weight": 4, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/65/0440-01" ] }, { "cite": "93 N.M. 626", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568796 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/93/0626-01" ] }, { "cite": "26 A.L.R. 1106", "category": "reporters:specialty", "reporter": "A.L.R.", "weight": 2, "year": 1923, "opinion_index": 0 }, { "cite": "31 A.L.R.2d 1036", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 3, "year": 1953, "pin_cites": [ { "page": "1040" }, { "page": "1051" } ], "opinion_index": 0 }, { "cite": "31 A.L.R.2d 1033", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1952, "opinion_index": 0 }, { "cite": "220 Ark. 551", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1660176 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/ark/220/0551-01" ] }, { "cite": "36 N.M. 112", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586545 ], "weight": 2, "year": 1932, "opinion_index": 0, "case_paths": [ "/nm/36/0112-01" ] }, { "cite": "71 N.M. 39", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5350095 ], "weight": 4, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0039-01" ] }, { "cite": "26 A.L.R. 1086", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1922, "opinion_index": 0 }, { "cite": "111 S.E. 180", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "opinion_index": 0 }, { "cite": "183 N.C. 207", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655811 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/nc/183/0207-01" ] }, { "cite": "294 F. 44", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6734252 ], "weight": 2, "year": 1923, "opinion_index": 0, "case_paths": [ "/f/294/0044-01" ] }, { "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" ] } ], "analysis": { "cardinality": 931, "char_count": 22314, "ocr_confidence": 0.788, "pagerank": { "raw": 9.14846282183077e-08, "percentile": 0.5081620588690692 }, "sha256": "f98698074f4e87188d92377fc48ca82d8991cb3a992732461a56b4d6705a5d51", "simhash": "1:53a9ff25b26c8579", "word_count": 3635 }, "last_updated": "2023-07-14T16:25:27.930698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ and WALTERS, JJ., concur." ], "parties": [ "In the Matter of the ESTATE OF Candido MARTINEZ, Deceased. Magdalena L. MARTINEZ, et al., Plaintiffs-Appellees, v. Vincente H. ANDERSON, et al., Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nThis case involves the doctrine of advancements. We (1) refer to certain procedural matters and discuss (2) whether the advancement provision of the Probate Code applies; (3) whether the doctrine of advancements applies to intestate proceedings; (4) the presumption of an advancement; (5) evidence to rebut the presumption; and (6) evidence of advancement apart from any presumption.\nInasmuch as all persons involved in this litigation were at one time named Martinez, we refer to them by their first names.\nTheresita, the first wife of Candido, died in 1922 or 1923. There were three children of that marriage \u2014 Arturo, Merenciana and Jose G., also known as Jose Diego (hereinafter referred to as Jose).\nCandido married Magdalena in 1927. There were six children of this marriage. Three of these six children testified \u2014 Gonzalo, Eutimio and Jose Rafael (hereinafter to as Rafael).\nCandido executed and delivered a deed to approximately 15 acres of land to each of the children of the first marriage. The deed to Merenciana was in 1937, to Arturo in 1941, to Jose in 1948. Magdalena, the second wife, joined in the deeds to Merenciana and Arturo.\nCandido died, intestate, in 1965.\nAdministration proceedings were begun in 1966. A dispute arose between the children of the first and second wives; the second set of children claimed that the land deeded by Candido to the children of the first wife were advancements. The result was that the attorney who instituted the administration proceedings withdrew and the delays began.\nJose brought a quiet title suit in 1966 that apparently raised the advancement issue as to him. This case was tried in 1974.\nMagdalena and her six children filed a quiet title suit in 1970. This suit named the children of the first wife as defendants. This suit involved the question of advancements to Arturo and Merenciana.\nIn addition, Arturo asserted, in the administration proceedings, that he was entitled to a child\u2019s share of Candido\u2019s estate and that the land deeded to him was not an advancement.\nIn 1978 the trial court ordered a consolidation of the two quiet title suits and the administration proceedings, at least to the extent of the common question concerning the advancements. Also in 1978, an order was entered in the consolidated case, which gave judgment in Jose\u2019s quiet title suit which had been tried in 1974. That judgment was that Jose\u2019s land was not an advancement and that Jose was entitled to a share of Candido\u2019s estate as provided by the applicable law of descent and distribution. This judgment in favor of Jose is not involved in this appeal.\nThe question of whether Merenciana\u2019s deed was an advancement has not yet been tried.\nThis appeal involves the question of whether Arturo\u2019s deed was an advancement. This issue was tried in May, 1980. The trial court\u2019s decision was filed in August, 1980 and judgment adverse to Arturo was entered in October, 1980.\nThe trial court found: \u201cThe conveyance to Arturo . . . was intended by the deceased to be the grantee\u2019s share of (an advancement against) the estate of the deceased.\u201d The trial court concluded: \u201cThe conveyance to Arturo . . . was an advancement and said child is not entitled to any other portion of the estate of Candido . . . . \u201d\nArturo appeals; for convenience, we refer to the opposition to Arturo, in both the administration proceedings and the quiet title suit, as Magdalena.\nProcedural Matters\n(a) The delays in this case are unconscionable; justice delayed is justice denied. The differences among the children of Can-dido were apparent soon after administration proceedings were begun in 1966; that those differences have been only partially resolved, judicially, in 1981 is appalling. The appellate record suggests some reasons in explanation of the delay \u2014 difficulties in obtaining the land description and. in obtaining abstracts, dilatoriness on the part of at least some of the children, changes in attorneys and changes in judges. These suggested reasons are, however, insufficient to justify a fourteen-year delay in resolving the question of whether Arturo\u2019s deed was an advancement. By these comments we do not assess blame against the current trial judge or the current attorneys. The delay does suggest the need for a form of docket control in civil cases which prevents attorneys from proceeding at their leisure. We refer to this again at the close of this opinion.\n(b) Arturo complains of various procedures; we dispose of them summarily. (1) The propriety of the trial court\u2019s dismissal and subsequent reinstatement of both the administration proceedings and quiet title suit cannot be answered because of the ambiguity of the record. (2) The consolidation of the administration proceedings and the quiet title suit appears to be a consolidation limited to resolving the advancement question and not a consolidation for all purposes; there are numerous parties in the quiet title suit, and issues in that suit differ from the matters to be resolved in the administration proceedings. (3) The trial court made no finding as to estoppel, laches and the statute of limitations; those are not issues in this case. (4) That the trial court\u2019s judgment as to Arturo was in the quiet title suit, and that there is no judgment as to Arturo in the administration proceedings, presents no difficulty. The question of an advancement to Arturo, in both suits, was to be resolved at one trial. Appropriate judgments, in both cases, should be entered on remand. (5) That the trial court\u2019s ruling, see finding and conclusion quoted above, excluded Arturo from an intestate share, rather than giving Arturo the option of putting the advancement into hotchpot, was consistent with the position of the parties at trial and makes no I difference in this case because of the result we reach.\nThe Advancement Provision of the Probate Code\nSection 45-2-110, N.M.S.A.1978, provides:\nIf a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is treated as an advancement against such heir\u2019s share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir to be an advancement.\nArturo contends \u00a7 45-2-110 applies, and prevents Arturo\u2019s 15 acres of land from being an advancement because there is no contemporaneous writing by Candido, and no written acknowledgement by Arturo, that the 15 acres of land was an advancement. We disagree.\nSection 45-2-110 was enacted as a part of Laws 1975, ch. 257. Section 10-101(B) of that law provides:\nB. The Probate Code applies to the affairs of decedents dying on or after the effective date of the Probate Code, and to matters of missing persons, protected persons, minors and incapacitated persons commenced on or after the effective date of the Probate Code.\nThe effective date of the Probate Code was July 1, 1976, Laws 1975, ch. 257, \u00a7 10-101(A). Candido died in 1965. This litigation involves no matters pertaining to missing, protected or incapacitated persons, and no matters pertaining to a minor. See Matter of Estate of Seymour, 93 N.M. 328, 600 P.2d 274 (1979).\nSection 45-2-110, supra, is not involved. The doctrine of advancements applicable in this case is that which existed prior to the enactment of \u00a7 45-2-110.\nWhether the Doctrine of Advancements Applies to Intestate Proceedings\nHistorically, \u201cthe doctrine of advancements applies only in cases of intestacy .... In cases of testacy, however, the term is frequently found in construing the provisions of wills which have made use of the term in attempting to equalize the distribution of estates among legatees and devisees.\u201d Harper v. Harris, 294 F. 44 (8th Cir. 1923). See Nobles v. Davenport, 183 N.C. 207, 111 S.E. 180, 26 A.L.R. 1086 (1922).\nArturo\u2019s claim that the doctrine of advancements, in New Mexico, does not apply to intestacy proceedings is based on the following sentence from In re Williams\u2019 Will, 71 N.M. 39, 376 P.2d 3 (1962): \u201cAdvancements should be confined to cases where the testator by will specifically directs that certain gifts already made by him be counted as advancements in equalizing the distribution of his estate.\u201d\nThe reliance on In re Williams\u2019 Will is misplaced. The quoted sentence refers only to the use of the law of advancements in testacy proceedings. The context of the sentence went to a distinction between ademption and advancement in testacy matters; this distinction was made in pointing out that the doctrine of advancements was not involved, that the issue in that case was whether there had been an ademption. In re Williams\u2019 Will cited Sylvanus v. Pruett, 36 N.M. 112, 9 P.2d 142 (1932), which quoted Harper v. Harris with approval as to the use of the doctrine of advancements in testacy matters.\nNo New Mexico decision rejects the use of the doctrine of advancements in intestacy proceedings; we hold the doctrine is applicable to intestacy proceedings. Harper v. Harris, supra.\nPresumption of an Advancement\nNobles v. Davenport, supra, provides a definition of an advancement sufficient for this case:\n[A]n \u201cadvancement\u201d is an irrevocable gift in praesenti of money or property, real or personal, to a child by a parent, to enable the donee to anticipate his inheritance to the extent of the gift; or, as somewhat differently defined, a perfect and irrevocable gift, not required by law, made by a parent during his lifetime to his child, with the intention on the part of the donor that such gift shall represent a part or the whole of the donor\u2019s estate that the donee would be entitled to on the death of the donor intestate.\nSee Harper v. Harris.\nClement v. Blythe, 220 Ark. 551, 248 S.W.2d 883, 31 A.L.R.2d 1033 (1952), states: \u201cThere is a presumption that a parent\u2019s substantial gift to one of his children is intended as an advancement.\u201d This presumption is based on the view \u201cthat the natural affection of a parent is as strong for one child as for another, and that, in the distribution of his property, the parent will treat his children equally and fairly.\u201d Annot., 31 A.L.R.2d 1036 at 1040 (1953).\nCandido\u2019s deed of 15 acres of land to Arturo raised a presumption that the land was an advancement.\nEvidence to Rebut the Presumption\nThe Annotations at 26 A.L.R. 1106 (1923) and 31 A.L.R.2d 1036 (1953) state the holdings of various states as to the quantum of evidence required to rebut the presumption. The amount necessary has been stated as \u201cclear and unmistakable\u201d evidence, a preponderance of the evidence, and slight evidence. Clement v. Blythe, supra, states that the \u201cpresumption is not an especially strong one. There may evidently be many reasons for a parent to think that one of his children should receive more than an exact share of the estate.\u201d Clement v. Blythe holds that the presumption may be \u201c \u2018readily overcome\u2019 \u201d.\nWe need not decide the \u201cstrength\u201d of the presumption or choose the quantum of evidence required to rebut it. New Mexico has decided the matter in other cases.\nThis litigation, being so old, is not governed by the Rules of Evidence. The Supreme Court Order of April 26, 1973, which adopted the Rules of Evidence, states: \u201c[T]he Rules of Evidence . . . shall be effective July 1, 1973, for cases filed on or after said date. Cases filed prior to July 1, 1973, shall be governed by rules applicable prior to the effective date of these rules.\u201d\nBoth the administration proceedings and the quiet title suit were filed prior to July 1, 1973; Evidence Rule 301, on presumptions, does not apply; New Mexico law on presumptions, prior to the adoption of Evidence Rule 301, is applicable.\nTrujillo v. Chavez, 93 N.M. 626, 603 P.2d 736 (Ct.App.1979), states:\nUntil the adoption of the Rules of Evidence in 1973, the law in New Mexico was that a presumption ceases to exist upon the introduction of evidence which would support a finding of its nonexistence. Hartford Fire Insurance Co. v. Horne, 65 N.M. 440, 338 P.2d 1067 (1959); Morrison v. Rodey, 65 N.M. 474, 340 P.2d 409 (1959); Morris v. Cartwright, 57 N.M. 328, 258 P.2d 719 (1953); Payne v. Tuozzoli, 80 N.M. 214, 453 P.2d 384 (Ct.App. 1969).\nThe presumption operated against Arturo; he introduced evidence that would have supported a finding contrary to the presumption. That evidence was the trial testimony of Arturo and Merenciana that Candido\u2019s deeds to them were their inheritance from their mother, Theresita. Arturo testified that Candido made that statement when Candido and Magdalena signed Arturo\u2019s deed; Magdalena\u2019s deposition testimony (at trial, her testimony was different) was \u201c \u2018it was the mother\u2019s part he gave to the three.\u2019 \u201d With this evidence the presumption vanished \u201cas though it had never existed\u201d. Hartford Fire Insurance Company v. Horne, 65 N.M. 440, 338 P.2d 1067 (1959).\nThe ruling that Arturo\u2019s deed was an advancement cannot be sustained on the basis of a presumption of advancement. Evidence of Advancement Apart From Any Presumption\nIn the determination of the question whether a transfer of property from parent to child is a gift, a sale, or an advancement, the intention of the grantor is the controlling element. [Citations omitted.] And only such intention as exists at the time of the transaction is to be considered.\nNobles v. Davenport, supra; see also Annot, 26 A.L.R. 1089 (1923).\nThe testimony of Arturo and Merenciana, and the deposition testimony of Magdalena, is to the effect there, was no advancement. The question, however, is whether there is evidence supporting the finding that the land deeded to Arturo was an advancement. Four items of evidence are directed to this question \u2014 the trial testimony of Magdalena, Rafael, Eutimio and Gonzalo.\nWe have previously pointed out that in her deposition, taken in 1971, Magdalena testified that the acreage deeded to Arturo, Jose and Merenciana was for their mother\u2019s part. At trial (1980), Magdalena testified the acreage \u201cwas the inheritance he [Candido] left to them\u201d; she also testified that she did not know Candido\u2019s intent in executing the deeds; that she remembered going with Candido to Philip Hubbell\u2019s office where the deed to Arturo was executed, and remembered signing the deed, but could not remember any discussion with Candido concerning that deed. The trial court admitted Magdalena\u2019s deposition without requiring individual questions concerning the deposition. The trial court\u2019s reason, in part, was: \u201cI feel her memory has been impaired to some extent since this deposition\u201d.\nMagdalena\u2019s lack of knowledge as to Can-dido\u2019s intent and inability to remember any discussion with Candido concerning Arturo\u2019s deed deprive her testimonial conclusion, that the deeds were an inheritance from Candido, of any probative effect. Candido\u2019s intent was the controlling element; as to that, Magdalena had no knowledge.\nThe testimony of Rafael, Eutimio and Gonzalo involves the issue of subsequent declarations of Candido as to his intent when he executed the deed to Arturo. Eutimio, born in 1934, testified that when he was 19 years old (thus in 1953), Candido \u201ctold me about the land, that he gave it to my three half brothers [Merenciana is a female]. It was inheritance, you know, the land.\u201d Rafael, born in 1944, testified that when he was 15 years old (thus in 1959), Candido \u201cbrought up my two half brothers and my half sister, that they had gotten their inheritance already.\u201d Gonzalo testified that Candido stated in three conversations with Gonzalo that the deeds to the 15 acres of land to Arturo, Jose and Merenciana were their share of the inheritance. The first of these conversations was when Gonzalo was 18 years old (he was born in 1940), thus in 1958. The second conversation was in 1963 and the third conversation was in 1964.\nThe testimony of Eutimio, Rafael and Gonzalo is that in conversations with Candido, 12, 17, 18, 22 and 23 years after the 1941 deed to Arturo, Candido stated that he had given Arturo, Merenciana and Jose their inheritance.\nArturo objected to the admission of this testimony because it was hearsay. The trial court permitted the testimony, but reserved a ruling on the admissibility. The trial court never expressly admitted the testimony; we consider whether it could properly be considered because there is no evidence, apart from this hearsay, to support the finding of advancement.\nIn contending this hearsay was admissible, Magdalena relied on Evidence Rules 803(3), 804(b)(4) and 804(b)(6). We have previously pointed out that the Rules of Evidence are inapplicable because the administration proceedings and the quiet title suit were filed before the Rules of Evidence were adopted.\nThe substance of Magdalena\u2019s argument for admissibility was that the testimony was admissible under \u201cstate of mind\u201d, \u201cstatement against interest\u201d, and \u201cnecessity\u201d exceptions to the rule excluding hearsay. The Annotations at 26 A.L.R. 1106 at 1167 and 31 A.L.R.2d 1036 at 1051, point out a conflict of authority as to whether subsequent declarations are admissible \u201cto prove or to rebut the presumption of an advancement.\u201d In this case, Candido\u2019s subsequent declarations do not involve a presumption\u2014 under the evidence, the presumption ceased to exist. The question is whether the subsequent declarations are competent to show an advancement, regardless of any hearsay exception.\nThe fact that the declarations were \u201csubsequent\u201d does not answer the question of admissibility. Subsequent declarations were held admissible on the issue of delivery of a deed in Schultz v. Young, 37 N.M. 427, 24 P.2d 276 (1933). Subsequent declarations were held admissible on the issue of ademption. In re Williams\u2019 Will, supra. Both of these decisions point out that admissibility depends on the circumstances involving the subsequent declaration.\nA circumstance to be considered is the nature of subsequent declaration testimony. Such declarations \u201care generally regarded as unsatisfactory evidence on account of the ease with which they may be fabricated, the impossibility of contradiction, and the consequences which the slightest mistake or failure of memory may produce.\u201d Ellis v. Newell, 120 Iowa 71, 94 N.W. 463 (1903). See Comer v. Comer, 119 Ill. 170, 8 N.E. 796 (1886); Rowe v. Rowe, 144 Va. 816, 130 S.E. 771 (1925). Concern with mistake of memory is particularly appropriate in this case \u2014 Eutimio testified to a conversation 27 years earlier; Rafael testified to a conversation 21 years earlier, Gonzalo testified to conversations 16 to 22 years earlier. Compare McCoy v. Alsup, 94 N.M. 255, 609 P.2d 337 (Ct.App.1980), where the conversation was two years earlier.\nAnother circumstance to be considered is' the remoteness of the conversations. The closest conversation, offered to prove Can-dido\u2019s intent, occurred 12 years later. Subsequent declarations \u201cseveral years after the transaction\u201d were held to be too remote in Thistlewaite v. Thistlewaite, 132 Ind. 355, 31 N.E. 946 (1892). A declaration one year after the transaction was held to be too remote in Lowe v. Wiseman, 46 Ind.App. 405, 91 N.E. 364 (1910). In re Williams\u2019 Will, supra, in holding that fifty days was not too remote, states:\n[Ejvidence which is otherwise competent may relate to facts too remote in point of time or matters too far removed from the scene of the transaction to be admissible.\nAnother circumstance to be considered is that the testimony of Eutimio, Rafael and Gonzalo was self-serving because its effect would be to increase their share of Candido\u2019s estate. Brown v. General Insurance Company of America, 70 N.M. 46, 369 P.2d 968 (1962), states that with certain exceptions, \u201c[s]elf-serving declarations regardless of relevancy or materiality are incompetent.\u201d\nWe do not hold that the hearsay testimony was inadmissible because of any one of the above circumstances. We do hold that the hearsay was inadmissible because of the combination of the circumstances. As an example: Eutimio gave self-serving testimony in 1980 to a conversation with Candido in 1953 to prove Candido\u2019s intent in 1941. The time and self-serving circumstances emphasize the possibility of mistaken memory to such an extent that the testimony was inadmissible.\nEvidence Rule 803(3) excludes statements \u201cof memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant\u2019s will.\u201d The Advisory Committee\u2019s Note explains this limitation:\nThe exclusion of \u201cstatements of memory or belief to prove the fact remembered or believed\u201d is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind.\nAlthough the Rules of Evidence are not applicable in this case, this explanation is applicable to the hearsay testimony under consideration.\nThe hearsay testimony of Eutimio, Rafael and Gonzalo was not competent and could not be properly considered by the trial court. There being no other evidence to support the finding of an advancement, that finding is erroneous and the judgment based thereon must be reversed.\nThe judgment of the trial court is reversed. The cause is remanded with instructions to enter judgments in both the administration proceedings and the quiet title suit that the 1941 deed to Arturo was not an advancement. The trial court is also instructed to give these cases precedence on its civil docket with the purpose of deciding the advancement issue as to Merenciana, and closing these cases in a reasonable time after this decision becomes final. Any requests for delay by litigants or counsel are to be closely scrutinized; the trial court should impose a time schedule for bringing this litigation to an end.\nArturo is to recover his appellate costs.\nIT IS SO ORDERED.\nLOPEZ and WALTERS, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Edward J. Apodaca, Jr., Edward J. Apodaca & Associates, Albuquerque, for defendants-appellants.", "Narciso Garcia, Jr., Albuquerque, for plaintiffs-appellees." ], "corrections": "", "head_matter": "633 P.2d 727\nIn the Matter of the ESTATE OF Candido MARTINEZ, Deceased. Magdalena L. MARTINEZ, et al., Plaintiffs-Appellees, v. Vincente H. ANDERSON, et al., Defendants-Appellants.\nNo. 4959.\nCourt of Appeals of New Mexico.\nJuly 16, 1981.\nWrit of Certiorari Denied Sept. 8, 1981.\nEdward J. Apodaca, Jr., Edward J. Apodaca & Associates, Albuquerque, for defendants-appellants.\nNarciso Garcia, Jr., Albuquerque, for plaintiffs-appellees." }, "file_name": "0619-01", "first_page_order": 647, "last_page_order": 654 }