In Re Will of Callaway

500 P.2d 410, 84 N.M. 125
CourtNew Mexico Supreme Court
DecidedJuly 28, 1972
Docket9392
StatusPublished
Cited by17 cases

This text of 500 P.2d 410 (In Re Will of Callaway) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Will of Callaway, 500 P.2d 410, 84 N.M. 125 (N.M. 1972).

Opinion

OPINION

McMANUS, Justice.

Nettie B. Callaway died testate on November 19, 1970. Her will dated July 29, 1967, and two codicils dated May 28, 1969 and February 24, 1970, respectively, were presented for probate as Cause No. 3818 in the Probate Court of Eddy County, New Mexico. The proponent-appellee, Jack W. McCaw, was named executor and is one of the primary beneficiaries. The other proponents-appellees, Mary McCaw, Bob McCaw and Helen McCaw, are also primary beneficiaries.

The contestants-appellants, Betty Calla-way Willis and Virginia Callaway Pack, petitioned the District Court of Eddy County for an order to transfer administration from the probate court. The petition was granted and the cause docketed as Cause No. 26899 in said district court. The appellants’ answer, filed at the same time as the petition, established that the appellants were the decedent’s sole heirs at law and raised the issues of incompetency of the testatrix, duress and coercion. The appellants also requested and were granted a jury trial.

The cause came on for trial on June 2, 1971 and on June 9, 1971, the jury rendered a verdict in favor of the appellees. The jury found that the testatrix had been competent to make the will and both codicils and that the will had been prepared without duress or coercion. Based on the jury verdict, the will and both codicils were admitted to probate. It is from this verdict that the contestants appeal.

The following facts are undisputed. The decedent was first hospitalized November 18, 1965 for a fractured hip in St. Mary’s of Roswell. On February 16, 1966, she was transferred to Carlsbad Memorial Hospital with a decubitus ulcer. Once the ulcer was cured, she was transferred to Lakeview Christian Home. She remained in Lakeview from May 12, 1966, to June 4, 1966, when, upon her insistence, she was moved to Landsun Retirement Home where she resided in an apartment, with the exception of four hospital stays, until her death.

During the 1965-66 hospital stay in Roswell, the appellants herein filed an incompetency proceeding against the decedent in an attempt to have her declared incompetent and a guardian appointed. The proceeding was dismissed when the decedent was moved to Carlsbad. A second incompetency proceeding was then filed in Eddy County, but no action was ever taken on it. During the period of hospitalization and the incompetency proceedings, the decedent gave Jack McCaw a power of attorney to handle certain business affairs, and when she left the hospital she placed substantially all of her assets in trust with McCaw and the First National Bank of Roswell as co-trustees. There is evidence to indicate that the appellants were disinherited because of their attempts to have decedent declared incompetent, and the further fact that the decedent had become disenchanted with appellants for other reasons.

The will was written July 29, 1967, and the first codicil on May 28, 1969. During the entire period from the date of execution of the will to the date of execution of the first codicil the decedent had been a resident at the Landsun home and had not been hospitalized. The second codicil was drafted February 24, 1970, after the testatrix had been hospitalized for a brief period in the fall of 1969. The evidence indicates that during the entire period of time in dispute, the decedent remained rational, alert, intelligent and witty. She remained concerned about her appearance and maintained an active interest in current events, her family and the people with whom she lived. There is evidence, however, that decedent did have periods of irrationality and disorientation, but these seem to have coincided with the periods of hospitalization during which time the decedent suffered from the trauma of a series of fractures and was kept heavily sedated until her injuries had healed.

Much of the foregoing is challenged by the appellants in seven points for review by this Court. We will basically discuss only the second of these points.

Appellants’ second point, upon which reversal is predicated, reads:

“The court committed error in admitting in evidence hospital records without requiring proper identification of the records by the person who prepared the same.”

The records referred to were labeled P-31, covering nurses’ notes from July 11, 1967 to August 9, 1967, and P-39, covering nurses’ notes from April 28, 1969 to June 24, 1969, and from February 6, 1970 to March 16, 1970. The main error arose when these records were admitted, upon identification of the records by the Land-sun Home administrator, for the limited purpose of showing what drugs had been dispensed to the decedent during her stay in that Home. The notes were inadvertently passed to the jury, who were allowed to read them although the comments by the nurses as to the general condition of the decedent had been specifically excluded by the trial court upon the objection of the appellants.

The law recognizes that certain evidence may be admitted for a limited purpose. This principle has been recognized in New Mexico in the case of Carron v. Abounador, 28 N.M. 491, 214 P. 772 (1923), where this Court stated:

“This instrument, however, was introduced for the sole and single purpose of showing the price and value of the automobile when new. This limitation was placed upon the evidence by * * * counsel at the time it was tendered, and it was admitted by the court, with the statement that it would be received for such purpose. Having been thus limited in its purpose and function, it cannot now serve to create the legal presumption that the property thereby conveyed became vested * * * as * * * separate property. It can serve no purpose beyond that to which it was limited.”

In this case, the nurses’ notes were admitted for the sole purpose of showing what drugs had been administered. On examination of the administrator of the Landsun home, the following transpired:

“Q, I will hand you what is marked Proponent’s 31 and ask, Mr. Sadler, if that is a copy of the nurses’ notes which you have been testifying to, or testifying about, covering the period of July 11, 1967, through August — I’m sorry, July 11, 1967, through August 9, 1967 ?
“A. Yes, sir, those are copies.
* * * * * *
“MR. DOW: If the Court please, I am going to object to this on the grounds that Mr. Sadler—
“THE COURT: Let me see it.
“MR. DOW: — testified that he came here on May 17 of 1968, and this is covering a period of time prior to the time that he was there.
“THE COURT: Is that your only objection?
“MR. DOW: We would object to it further on the ground that the notes are made by various and sundry nurses, and since they aren’t qualified as expert witnesses, and I don’t know whether they are even here or not, we would object to it being introduced into evidence.

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Bluebook (online)
500 P.2d 410, 84 N.M. 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-will-of-callaway-nm-1972.