{
  "id": 1584543,
  "name": "Maria SPENCER and Edward Gutierrez, Respondents-Appellants, v. Ralph GUTIERREZ, in his capacity as Personal Representative of the Estates of Jesus B. Gutierrez and Aurora Gutierrez, deceased, and individually, Petitioner-Appellee",
  "name_abbreviation": "Spencer v. Gutierrez",
  "decision_date": "1983-03-15",
  "docket_number": "No. 5867",
  "first_page": "712",
  "last_page": "715",
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    "name_long": "New Mexico",
    "name": "N.M."
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      "opinion_index": 0,
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      "category": "reporters:state",
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    {
      "cite": "84 N.M. 101",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
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      "year": 1972,
      "opinion_index": 0,
      "case_paths": [
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  "last_updated": "2023-07-14T20:36:40.875408+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "WOOD and BIVINS, JJ., concur."
    ],
    "parties": [
      "Maria SPENCER and Edward Gutierrez, Respondents-Appellants, v. Ralph GUTIERREZ, in his capacity as Personal Representative of the Estates of Jesus B. Gutierrez and Aurora Gutierrez, deceased, and individually, Petitioner-Appellee."
    ],
    "opinions": [
      {
        "text": "OPINION\nWALTERS, Chief Judge.\nThis appeal challenges the trial court\u2019s construction of the wills of the parties\u2019 parents. We affirm.\nJesus B. Gutierrez (J.B.) and his wife, Aurora Gutierrez, each executed their own wills in July, 1962. J.B. Gutierrez died on January 27, 1970 and Aurora died on September 16, 1978. Their three children, who are parties in this appeal, are appellants Maria (Emma) Spencer and Edward Gutierrez, and their brother, appellee Ralph Gutierrez.\nJ.B. and Aurora named each other, as administrators of their wills; Ralph was named by each as their alternate administrator. J.B.\u2019s will was not probated at the time of his death and Ralph filed petitions for formal probate of both wills on March 20, 1979. Maria thereafter filed a notice demand, and requested supervised administration of Aurora\u2019s estate and an order of complete settlement of J.B.\u2019s estate. Ralph then petitioned to have both wills construed. The probate proceedings were consolidated and a hearing on the motions to construe was held on May 18, 1981.\nThe contest between the children focused on the following language, found in clause 11(a) of J.B.\u2019s will and in clause 111(a)(3) of Aurora\u2019s will, respectively:\nTo my son, Ralph Gutierrez, I leave, devise and bequeath * * * the property or real estate which has been occupied and on which has been conducted the business known as City Drug Store and City Center Restaurant, with street address of 334 and 334V2 South Main Street, City of Las Cruces * * *. (Clause 11(a) of J.B.\u2019s will.)\nTo our son, Ralph Gutierrez, and in the case he should predecease me, then to his issue, share and share alike:\nProperty with street address of 334 and 334V2 South Main Street, Las Cruces, New Mexico, which has been occupied and on which has been conducted the business known as City Drug Store and City Center Restaurant. (Clause 111(a)(3) of Aurora\u2019s will.)\nJ.B. and Aurora owned, in whole or in part, three tracts of land on South Main Street. The court found that J.B. and Aurora intended to bequeath their interests in all three tracts to Ralph. Appellants contend that only one tract should pass to Ralph, while the other two tracts lapsing to the residuary clause which provides for all three heirs sharing in the property in equal portion, because only Tract 1 bears the address of 334 South Main Street, and there is no such address as 334V2 South Main.\nAppellants have briefed the following issues:\n(1) Whether substantial evidence supports the trial court\u2019s finding that all three tracts of the South Main property were intended to pass to Ralph.\n(2) Whether the language employed in the wills devises only one tract of the South Main property to Ralph.\n(3) Whether testimony concerning the decedents\u2019 intended disposition of their property was improperly admitted over objection.\nThe South Main Street property consists of three adjoining tracts of land, referred to by the parties as Tracts 1, 2, and 3 in the order in which they were acquired. J.B. Gutierrez purchased Tract 1 in 1944. Appellants concede that this tract was clearly intended by the testators to pass only to Ralph, as the street address of Tract 1 and of the drug store and restaurant is 334 South Main Street.\nTract 2 was acquired in December, 1958 in the names of J.B. and Aurora, jointly, Ralph and his wife, jointly, and Edward and his wife, jointly, all as tenants in common.\nTract 3 was acquired under contract of sale and purchase, executed April 25, 1962, by J.B., Aurora, Ralph, and Ralph\u2019s wife. Thus, all of the adjoining tracts were acquired prior to the execution of the wills.\nJ.B., Ralph and Edward had formed a partnership under the name of Valley Drug Store in June 1954. In May, 1961, Edward withdrew from the partnership, at a time when the partners had expanded the business to include a restaurant adjoining the drug store operation. In December, 1962, Edward and his wife conveyed their one-third interest in Tract 2 to J.B. and Aurora.\nAppellants claim that as there was no material conflict in the evidence, there was no ambiguity in the will, and that as a matter of law the trial court should have so concluded, citing Walters v. Hastings, 84 N.M. 101, 500 P.2d 186 (1972). We do not agree that the will was unambiguous or that the evidence was not in conflict. A reference to a non-existent or incorrect address certainly puts at issue what the testator intended by \u201cand 334V2.\u201d (Emphasis added.)\nExtrinsic evidence is always admissible to determine what property the testator meant to dispose of by the language he used in his will. In re Estate of Shadden, 93 N.M. 274, 599 P.2d 1071 (Ct.App.1979). Whenever a will must be construed, the testator\u2019s intent is to be determined from (a) all of th\u00e9 language in the will, (b) the testator\u2019s scheme of distribution, (c) the circumstances surrounding the testator at the time of making the will, and (d) the existing facts. Gregg v. Gardner, 73 N.M. 347, 388 P.2d 68 (1963).\nIt is clear from the transcript of proceedings attached to and incorporated \u201cas an explanation of the Court\u2019s reasoning in this matter,\u201d in the trial court\u2019s findings and order decreeing that the testators intended Ralph to take Tracts 1, 2 and 3 as \u201cthe sole owner of said real estate and the businesses conducted thereon,\u201d that the trial court considered the factors enumerated in Gregg, supra.\nJ.B.\u2019s will left all of his interest in the property described by the ambiguous clause to Ralph, in Paragraph 11(a) of his will. In Paragraph III(a)-l-, he left whatever interest he had in that same property, and the business conducted thereon, if Aurora predeceased him, to Ralph. Those two clauses, read together, show J.B.\u2019s recognition of the community nature of the property and his ability, under former law, to devise one-half of the community property at his death, and his inheritance of all of Aurora\u2019s community interest if she predeceased him. See \u00a7\u00a7 29-1-8, 29-1-9, N.M.S.A.1953.\nAurora\u2019s will set out, in Paragraph 1(b), her awareness that all community property would pass to her surviving husband on her death. Nevertheless, in Paragraph 11(a) she made specific bequests of separately-owned real estate to Edward and Maria, with a life estate in those properties to J.B. during his lifetime, but nothing to Ralph. In Paragraph III(a)-3-, however, she conveyed the \u201c334 and 334V2 South Main Street\u201d property to Ralph if J.B. did not survive her, and made the same provisions in III(a)-l- and III(a)-2- for Edward and Maria that she had made in the previous Paragraph 11(a).\nThe lawyer who drew the wills intended that included within the specific bequests would be all real estate interests of the testators, leaving no real estate to go into the residuary clause in which the children were to share equally. He sought \u201cto carry out their indication to me,\u201d that all real estate be \u201cdisposed of to specific children.\u201d The lawyer\u2019s understanding of the testators\u2019 wishes resulted also from his awareness of the business association of J.B. and Ralph and the business conducted on the South Main Street property by them, as well as the joint acquisition of some of the property by J.B. and Ralph and their wives. The lawyer\u2019s statements of memory or belief relating to terms of a decedent\u2019s will are expressly admissible under N.M.R.Evid. 803(3), N.M.S.A.1978.\nThe portion of the decree explaining the court\u2019s decision discloses the court\u2019s refusal to believe that Aurora intended to disinherit Ralph under Paragraph 11(a) of her will but, rather, that she thought a bequest to him unnecessary in that paragraph because it was \u201ctaken care of\u201d under J.B.\u2019s will, i.e., upon J.B.\u2019s death, Ralph would inherit all of the business and the property. Her community and joint interests automatically would go to her husband upon her death; if she survived J.B., she provided that Ralph would inherit the South Main Street property.\nThe court also considered the distribution scheme of the parents. Edward was bequeathed 10 contiguous lots of real estate in a subdivision, and Emma was left 5 contiguous lots in another block of that subdivision and the family home. That scheme led the court to conclude that the parents intended Ralph to have the three adjoining tracts rather than to create \u201ca disastrous-type ownership, ninths and sixths with a building that encompasses a whole tract,\u201d the whole tract meaning \u201cTract[s] 1, 2 and 3.\u201d\nIn will contests as well as in other matters, we must review the evidence most favorably in support of the trial court\u2019s judgment. Moore v. Bean, 82 N.M. 189, 477 P.2d 823 (1970); see Matter of Ferrill, 97 N.M. 383, 640 P.2d 489 (Ct.App.1981).\nHere, there is sufficient evidence and there are reasonable inferences which may be drawn from the relationships existing at the time of the execution of the wills, from the testimony of the lawyer who drew the wills, and from the testators\u2019 scheme of distribution to support the trial court\u2019s findings. Gregg v. Gardner, supra.\nThe judgment awarding Tracts 1, 2 and 3 to Ralph is affirmed.\nIT IS SO ORDERED.\nWOOD and BIVINS, JJ., concur.",
        "type": "majority",
        "author": "WALTERS, Chief Judge."
      }
    ],
    "attorneys": [
      "Albert H. Engel, Las Cruces, for respondent-appellant, Maria Spencer.",
      "Lanny D. Messersmith, Albuquerque, for respondent-appellant, Edward Gutierrez.",
      "Ray O. Sage, Las Cruces, for petitionerappellee, Ralph Gutierrez."
    ],
    "corrections": "",
    "head_matter": "663 P.2d 371\nMaria SPENCER and Edward Gutierrez, Respondents-Appellants, v. Ralph GUTIERREZ, in his capacity as Personal Representative of the Estates of Jesus B. Gutierrez and Aurora Gutierrez, deceased, and individually, Petitioner-Appellee.\nNo. 5867.\nCourt of Appeals of New Mexico.\nMarch 15, 1983.\nCertiorari Denied May 17, 1983.\nAlbert H. Engel, Las Cruces, for respondent-appellant, Maria Spencer.\nLanny D. Messersmith, Albuquerque, for respondent-appellant, Edward Gutierrez.\nRay O. Sage, Las Cruces, for petitionerappellee, Ralph Gutierrez."
  },
  "file_name": "0712-01",
  "first_page_order": 744,
  "last_page_order": 747
}