Matter of Estate of Shadden

599 P.2d 1071, 93 N.M. 274
CourtNew Mexico Court of Appeals
DecidedJune 19, 1979
Docket3564
StatusPublished
Cited by14 cases

This text of 599 P.2d 1071 (Matter of Estate of Shadden) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Estate of Shadden, 599 P.2d 1071, 93 N.M. 274 (N.M. Ct. App. 1979).

Opinions

OPINION

WALTERS, Judge.

Garland L. Shadden died leaving a will which bequeathed certain items of his separate property to his son, appellee herein, including “a promissory note payable to me from the community in the amount of $9,000.00 which represents money I received from some of my personal property.” The note, Exhibit 1 in the hearing below, read:

$9.000.00 Alamogordo, N.M., December 1. 1976 No._ Garland L. Shadden and Joyce M. Shadden after date, for value received jointly and severally promise to pay to the order of GARLAND L. SHADDEN_ the sum of NINE THOUSAND AND NQ/100_DOLLARS lawful money of the United States with interest at the rate of —six (6)-per cent per annum from default until paid.

The makers and endorsers of this note severally waive protest, demand and notice of protest and .non-payment and agree to all extensions, partial payments before or after maturity and agree that they will pay ten per cent attorney s fees on the amount due, in case the same shall not be paid upon maturity, and is placed in the hands of an attorney for collection.

Payable at Alamogordo. New Mexico s/ Garland L. Shadden-Due_December 1. 1977- ----

The will further provided that, with the exception of family bibles, an oil royalty, and inherited real property, appellee would receive all the rest and remainder of decedent’s separate property, and that appellant, his widow, would receive a life estate in the oil royalty and the inherited realty (with a gift over to decedent’s sister), and all of decedent’s interest in real and personal community property. If Mrs. Shadden preceased the testator, the will directed that “the community property acquired during the term of our marriage” be distributed “as follows: A. The first $9,000.00 from the estate assets, I give, devise and bequeath to [X], as Trustee,” and 50% of the balance (after a $1.00 devise to two other beneficiaries) “to [X], as Trustee for the use and benefit” of appellee, with discretion in the trustee to pay any reasonable sum to or for the appellee’s ben- • efit; and any balance remaining after the death of appellee was to be distributed to named grandchildren. The will also declared: “My wife and I have made written lists of items which we consider to be our respective sole and separate properties.”

Appellee G. L. Shadden filed a claim against the estate for payment of the $9,000 promissory note which, as can be seen, had been signed only by Garland. The claim was disallowed by appellant Joyce Shadden, as personal representative of the estate. Following a formal hearing on the denial of the claim, the trial court entered judgment for $9,000 in favor of appellee against the estate, and the personal representative appealed. She raises issues of insufficiency of the evidence to support most of the court’s findings; reception of inadmissible evidence; and the ineffectiveness and unenforeeability of the note to transmit any interest to claimant thereunder by the will.

Fourteen of the court’s twenty-three findings, which relate to the execution and terms of the will, the conduct of the widow with respect to benefits received under the will, the testator’s intentions and the widow’s knowledge of his intentions, etc., are asserted to be unsupported because the will was not introduced into evidence and no interpretations of its provisions or the testator’s intent could have been reached by the court. The record received on appeal contradicts the basis of this claim. It contains all of the pleadings in the probate matter, including Joyce’s petition for admission of the will to probate, a copy of the will bearing the filing stamp of the district court clerk, and an order admitting it to probate and appointing Joyce as the personal representative. The transcript of proceedings reveals further that at the outset of the hearing, the trial judge carefully reviewed the court file before him and recited for the record the various pleadings and proceedings had in the probate matter up to the date of the hearing. It was not necessary for appellee to move the will into evidence — it was before the court in the court record, and the court was bound to take judicial notice of the documents entered in the cause pending before it. In re Landers’ Estate, 34 N.M. 431, 283 P. 49 (1929). Additionally, Mrs. Shadden, the appellant-widow, testified concerning her knowledge of decedent’s intent, as did the attorney who drew the will and the promissory note in dispute, and from their testimony the court was justified in making its findings that decedent had sold separate property in El Paso owned by him prior to his marriage to Joyce Shadden; that he had used the $9,000 from the sale for the purchase of the home of the parties in Otero County; that he considered the $9,000 to be a debt chargeable against his estate; that he intended the note as a device to assure payment of $9,000 in cash to his son rather than that the son and Mrs. Shadden share title to the home; and that the note evidenced Garland’s intention that his son be given the preference of a creditor against his estate to the extent of $9,000.

Many of the court’s findings were based upon the extrinsic evidence furnished by Mrs. Shadden and the attorney, but that evidence was properly received for, as we read in 4 Page on Wills, §§ 32.1, 32.2, 32.4, and 32.5:

The meaning and application of the terms of the will cannot be understood until the property and beneficiaries have been identified, which can be done only by extrinsic evidence; and, in many instances, until the court understands testator’s situation with reference to his property, the natural objects of his bounty, and his contemplated beneficiaries. Evidence of this sort explains the meaning of the will and, not infrequently, this meaning is varied to the extent that the will evidently means something different, when read in the light of admissible extrinsic evidence, from the meaning which it appeared to have without such evidence. It is said that such evidence is received, not to defeat, but to aid in determining the testator’s intent when that intent is uncertain from a reading of the will itself, and to explain or resolve doubts, not to create them. It has been held that the rule against admission of extrinsic evidence is not violated by the reception of extrinsic evidence which tends to show the intention of the testator as expressed in the will, although the evidence in such cases is probably unnecessary.
[Admissibility of parol evidence ... is generally raised where the will either upon its face, or by reason of imperfect description of the subject-matter of the gift or the object of testator’s bounty, is ambiguous or uncertain. It is often stated, as a general principle, that evidence of extrinsic circumstances is admissible to aid in interpreting a will which is ambiguous. This rule is so general as to be of little value since questions as to what constitutes such an ambiguity as to require consideration of extrinsic evidence in order to ascertain the testator’s intent are almost as numerous as the variations which can be conceived for testamentary dispositions. . [I]n many cases the ambiguity does not appear until extrinsic evidence is received, some courts holding that it is only in such cases that extrinsic evidence can be considered in the construction of the will.

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Matter of Estate of Shadden
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Bluebook (online)
599 P.2d 1071, 93 N.M. 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-estate-of-shadden-nmctapp-1979.