Matter of Ferrill

In the Matter of the Last Will and

Testament of Cash Hazel

FERRILL, Deceased, THORP, Appellant,

Joe CASH, Appellee.

No. 4898. Appeals

Court of of New Mexico.

June

Writ Quashed. of Certiorari

3«5 exerted on the result of undue influence Thorp. by Mr. decedent appeal. They Eight points are raised on categories as follows: into four broad fall 1) whether there was substantial 2) whether the judgment; support jury, tried to a case should have been six; 3) certain jury of whether especially a excluded; and have been testimony should in certain 4) whether the court erred Finding no given and refused. instructions error, judgment of the dis- we affirm the trict court. 18, on December

Hazel Cash Ferrill died 1979, from age the of 82. She suffered at fifteen or sixteen months cancer the last during this at various times her life and treatment for it. period various underwent wife, Billie, worked for Joe and McKee, neighboring Be- Phillip rancher. 1979, Thorps began the ginning May, in sister, Beulah, her help care for Hazel and moved lived with her. Both women who for a time house on McKee’s ranch into a June, the May and spring. part In Hazel was care of Beulah when Thorps took chemotherapy undergoing Albuquerque in treatments, when she was helped Hazel 1979, hospital. July In while in not in the treatments, Hazel ex- hospital for more disinheriting family her a will ecuted estate to leaving substantially her entire Cash, con- grandson, Thorps. Her probate. of the will to the admission tested influ- evidence of undue I. Substantial ence. Stratvert, Konrad, Miller, Torgerson

Alan Thorp argues Mr. first there Brandt, P.A., Albuquerque, appellant. for & of undue influence and was no evidence that, erred in re consequently, the court Leach, Jr., Popejoy & Popejoy, Thomas L. him a directed verdict. His fusing grant Ransom, for P.C., Albuquerque, Richard E. that, there was argument is even if second appellee. the contestant’s going evidence some claim, not substantial evidence there was OPINION condense these the verdict. We support LOPEZ, Judge. ques and address the arguments into one 12, evidence of un whether substantial July tion of legatee under the Thorp, a Joe presented at trial. Since Ferrill, due influence was appeals the Cash will of Hazel substantial evi there was conclude that denying ad- we of the district judgment will, it is to invalidate on which juryA of dence probate. of this will mission refusing judge did not err in that the clear will to be invalid as found the six had

3«7 proponent. to direct a It is verdict for relation exists “whenever trust and confi judge reposed by irrelevant misstated dence one person integ grounds denying rity fidelity at the time of the motion. of another.” 94 C.J.S. See, Skarda, In re Will (1956), N.M. 537 Wills at 1078 quoted Hum mer, at at 75 N.M. P.2d Some of the circumstances courts have evidence, considering we suspicious found in cases where a will was are mindful presumptions are in favor grounds contested undue influ verdicts, that we are to view evi 1) old ence are: the testator and in a light dence in the most favorable to condition; physical weakened or mental prevailing party, and that we are to disre Hummer; Galvan; Donovan, Ostertag gard all evidence con inferences or Cobb; 331 P.2d 355 Carde trary. Anaconda Co. v. Tax Property nas; 2) there is a lack of consideration Dept., 608 P.2d (Ct.App.1979) Cobb; bequest; Ostertag; Salazar v. rt. ce Manderfield, Substantial is such rele Cardenas; 3) disposition vant evidence might as a reasonable mind see, property unjust; is unnatural Hum accept as adequate support for a conclusion. mer; see, Galvan; generally, Ostertag, 4) Id. beneficiary participated procuring Undue specifically influence has been will; Galvan; Hummer; 5) defined in New Mexico. Our Supreme beneficiary dominated the testator. Gal Court wrote in 1949: van. We attempt make no to define “undue Having examined the evidence in influence”. is it susceptible Neither of light appellee, most favorable to we any fixed formula. Whether undue in- find there is substantial of a evidence confi present is always question fluence is a dential relation between and Joe Ha be determined from circumstances of zel The Cash. evidence is uncontradieted case, particular and any attempt thought that very Hazel trusted Joe and may suggest define it path well of clear highly of began of him. This relation trust But, evasion. undue influence in the spring in the late of 1979 and continued sense as used improper- means until death in Hazel’s December of that exerted, ly to the injury acts year. As the progressed, relation Hazel person swayed it or injury to the handling turned the more her affairs and persons those she whom would have bene- and, November, Thorp, more over Joe fitted. It is immaterial whether such in- power signed attorney she in his favor. directly fluence is indirectly. exercised or agree We do not with that there is Cobb, 169, 172, v. Brown P.2d 204 no that this confidential relation 264, (1949). 266 Generally, undue influence 12, 1979, July day existed on the will proven but directly, from inferred sister, signed. Beulah, was Hazel and her Miller, Galvan circumstances. v. 79 during part resided at McKee ranch 540, (1968); N.M. 445 Hummer June, 1979, May the Thorps where de 274, Betenbough, 75 N.M. P.2d voted time much and attention them. Miller, Calloway v. could infer reasonably (1954); Trigg Trigg, P.2d began relation at confidential time. Ortiz, 22 P.2d Cardenas v. Moreover, present Hazel asked Joe be presump 226 P. 418 A signed will, when she a further indica tion of undue arises influence there that, by time, tion she trusted him shown be a or fiduciary confidential rela concerning important her most affairs. between primary tion beneficiary suspicious the testator and if circumstances There is also substantial evidence Hummer, also which, are shown. Wills suspicious C.J.S. of several circumstances fiduciary together Á confidential or with existence of confiden- influence, it is fur- presumption of undue relation, give presump- rise to a would tial Hazel trusted him ther evidence that 1) Hazel was old influence. tion of undue between the confidential relation she died. The was 82 when and sick. She the will by the time life, during the time she was established two year last of her 5) is no direct Thorp, she While there signed. to Joe became attached spring by July Hazel suffering cancer. evidence that Joe dominated from chemotherapy treatments. crucial. began evidence is not she such was detriorat- By May her condition Galvan, Citing Thorp claims there and lack of pain, from ing; she suffered showing strong dominance be a must irritable, weak, and needed oxygen, was the execution at the time of beneficiary and the ranch. caring for Beulah help in stands We do not think Galvan of the will. gave his McCullough, psychiatrist, Dr. interpretation proposition. Such an for this suscep- have been opinion that Hazel would cases on does not harmonize other the time the will influence at tible to undue have been decided undue influence which physical her and mental signed due to Hummer; Ostertag; Cal New Mexico. Cf. 2) The evidence indicated that condition. Salazar; Cobb; Trigg; Cardenas. loway; by Hazel to the the value of the ranch left just one of the showing of dominance A $875,000.00 and Thorps was between which, together with possible circumstances great Although they were a $1,000,000.00. relation, gives pre rise to a confidential life, of her help to her in the last months sumption of undue influence. by Phillip at that time they being paid were of undue influence presumption A help them to Hazel. McKee who had asked that, in arise if it is shown addition inade- jury could have found there was relation, the tes- fiduciary confidential 3) bequest. quate consideration for Hazel’s dominated, by the or controlled tator was Cash, grandson, was raised Hazel's or that the testator was beneficiary, childhood, During a son. he Hazel as par- in frail health and weak-minded or ran, working bars she helped her influence, or that ticularly susceptible to home, working nursing and at the her unnatural provisions of the will are ranch. In October and November designated unjust, person or that Marie, with Don and she and her sister lived un- recipient benefits thereunder as a time, During this Marie drove her his wife. (Emphasis add- profited by the will. duly Albuquerque daily radiation treat- ed.) September In a will Hazel made ments. 1096-98, supra at 94 C.J.S. Wills § acquainted with before she became 280-81, in, Hummer, 75 N.M. at quoted Thorps, left most of her estate the she Cobb, the court wrote: P.2d at 115. In evidence, jury From the the could Don. undue render rule on In order to disposition [the the of the concluded that have * * * it is not nec- applicable, 4) unjust. Joe influence] was unnatural or parties should oc- essary that one of when presence at Hazel’s bedside Thorp’s position towards cupy such a dominant suspi- signed will is not in itself a she that justify as to the inference suspicious the other listing In cious circumstance. his power without to assert circumstance, the latter was states: C.J.S. opposition will in former. undue influence presumption of “[N]o activity of the will be raised where 172, 204 P.2d at 266. Undue 53 N.M. at Id. * * * of the in the execution beneficiary to have been exerted influence was found request compliance with the will was in party in or less dominant by the weaker of the testator.” Walters, Walters v. Trigg. Nor do P. 1105 and Giovannini (1956). The Wills 239 at 1096 94 C.J.S. Turrietta, (1966), present was be- that Joe evidence indicates Galvan, that a show belie the view cited in While that he be there. cause Hazel asked along a confidential ing vpth of dominance itself, presence at the execution his sufficient, necessary, to but not relation is to raise a would not be sufficient the will establish undue influence. stands Waiters of undue it is for the fact finder proposition for the a presumption that weight to determine the of the evidence undue influence arises when a confidential judge witnesses, credibility grantee relation exists and the dominates jury Galvan. The could decide that grantor; but it that does hold presumption was not rebutted. presumption only arises when there is a showing direct In dominance. Giovanni Thorp’s argument that fail Hazel’s ni, the court asserts that confidential rela ure to revoke will somehow vitiated itself, tionship, by is not sufficient to raise a effect of undue influence without merit. presumption of undue influence. While the The uncontradicted that court that adds dominance also must be close relation with Hazel until continued shown, imply nowhere does it that this dom him, her death. As she trusted her failure inance cannot be inferred from circum to revoke simply expect the will was Moreover, stances. require the dominance ed, and was no that indication she had not Cardenas, ment is derived from case in unduly been influenced by him. which there was no more direct evidence of undue influence than in the case before us. II. Cardenas, Jury

In Trial. Judge specifically Bratton not donor, ed respect wife, to one Court’s discretion to order there no persuasion, evidence of direct Thorp argues trial. first the district but that other circumstances — such her power court had no a jury order trial on physical and mental condition and lack of its own Although motion. filed Cash consideration —were sufficient to establish objection probate February an Moreover, undue influence. the court 1980, he made no for a trial demand did Giovannini not read Cardenas 11, 1980. April until juryA demand in civil same way an earlier did. actions is to made days not later than 10 Salazar, Giovannini, decided before after service of the pleading last on the court read holding Cardenas as concerning by jury issue which trial coupled absence of consideration with the 38(a), sought. N.M.R.Civ.P. N.M.S.A.1978 existence of a confidential relation was suf (Rep.1980). The contestant’s demand ficient to raise inference of undue influ untimely, and the court ordered a imply ence. We do not that Giovannini trial own on its motion. Under N.M.R. misinterpreted Cardenas. Our view is that 39(a), (Rep.1980), Civ.P. N.M.S.A.1978 Galvan, neither Giovannini nor which fol court has the do discretion to this when the it, lowed limited undue influence to those might demand for a been have situations where dominance could be direct then, right. made of question, ly Rather, shown. dominance whether one is jury entitled to demand a grantee, susceptible proof, when of direct is right contesting trial of when Thorp a will. merely one factor presump which raises a cases, uses two grantor Gallegos, tion State ex rel 40 unduly influ enced, 331, (1936) when there also N.M. is evidence of a and Frock v. Fowlie, parties. 506, confidential relation between the 458 P.2d 581 Thorp’s view that direct evidence of domi support probate pro for his contention that nance by legatee and, over testatrix is ceedings are in equity consequently, a necessary in order to show undue influence right jury claimant has no to a trial. Frock is incorrect. point; Gallegos not on is and rests an law, interpretation 34-422, of an old N.M. There is substantial evidence to (1929), longer which is S.A. no in effect. presumption raise a Joe Thorp unduly code, probate The current 45-1-101 §§ influenced Hazel Cash to make and his him 45-1-404, N.M.S.A.1979, wife enacted in principal beneficiaries of her will. Although presented pro a trial jury probate evidence was which allows in certain suggested that ceedings. provides: the will was not the result 45-1-306 Section demanded, provided 38(b) right in the manner Rule a of his

If constituted waiver Procedure, party larger jury. a is of Civil to the by the Rules by jury in a formal to a trial entitled Testimony. III. Allowance of any proceeding proceeding and testacy question of any controverted in which testimony. Thorp objected MacKenzie’s any party has which a fact arises as to testimony about to Howard MacKenzie’s by jury. right to trial constitutional Hazel, negotiations Thorp, he with had man, Mossman, concerning and a third a of Civil Procedure pertinent The Rule mining lease which would enable MacKen- in civil ac- “Jury trial Rule entitled zie to mine on Hazel’s land. The discus- tions”, provides part that: * * * place took between June and Decem- sions (a) any party actions In civil ber, November, By working through any by jury a trial of issue may demand * * Mossman, thought he Thorp and MacKenzie right (Empha- a *. by jury triable of agreement on the terms had reached added.) sis and Hazel. the lease between himself 38(a), jury trial Under Rule a demand hospital When he visited Hazel one; right to may be made when there is a 10, he learned from around December timely, the court and when the demand is Thorp already signed a min- that Hazel had See, jury refuse allow a trial. cannot Thorp Mossman. ing lease with Markets, Inc., Stryker, Super Barber’s trial, indicated his testifying at MacKenzie (Ct.App.), cert. agreement learning about surprise at had tricked Hazel belief 39(a) gives Rule the court the discretion to testified, however, this lease. He also jury right allow a trial when the to one Hazel, he went in to see she that when exists, timely. and the demand was not Al said and assured confirmed what had Drum, P.2d ford v. Thorp and Mossman would not him that Miller, (1961); Wright Federal Prac cheat him. (1971) (discussion ¶ tice and Procedure testimony Thorp objected to this as irrele 39(b) which is similar to our Fed.R.Civ.P. prejudicial. N.M.R.Evid. vant and 39(a)). Rule Section 45-1-306 of the Pro prohibits evidence which N.M.S.A.1978 bate means that the court can simply Code relevant; not and N.M.R.Evid. N.M.S. jury party not refuse a in a formal A.1978, evidence to be ex allows relevant testacy proceeding who demands it in ac when it is in certain circumstances cluded 38(a). If the demand is cordance with Rule prejudicial. 39(a) timely, applicable. Rule ordering district court did not err in testimony We find MacKenzie’s trial. courts, when The New York was relevant. challenged grounds right examining a will on the Waiver of influence, normally allow evidence Thorp’s objection twelve. second of undue prior to covering period years members of three is that it consisted of six years two after the execution specific rather than twelve. de Unless will, twelve, relationship between if it concerns mand is made for a the will. proponent and the parties agreed to have to a the testator are considered Will, 148 38(b) In re McNamara’s N.Y.S.2d jury of six. N.M.S.A. N.M.R.Civ.P. indicative of comments right to a Evidence (Rep.1980). slighted in concerning persons for it is not the testator twelve is waived if the demand persons accused of party concerning the will or days within ten after the other made admissible, even See, exerting undue influence is jury trial. Id. Cash has demanded a 11, were after the the comments made April trial on 1980. when demanded See, v. Shul of twelve will was executed. Shulman Thorp did not demand a (1963); In 18, 1980. man, 651, 193 A.2d 525 trial, August 150 Conn. day of until the first 588, Will, 104 248 N.C. Thompson’s time limit of re His failure to act within the 3Q1 (1958). evidence, such here, 280 Neither is there error in S.E.2d character is as offered admitting arrange- evidence of business when will admissible is contested on the ments and financial transactions between grounds of undue influence. proponent

the testator of the will which occurred after will was executed. Character is gener evidence not Fite, v. (Mo.1960). Wilhoit 341 S.W.2d 806 ally prove admissible to conduct. N.M.R. light Evidence that sheds on the relation- 404(a), However, Evid. N.M.S.A.1978. Rule ship between testatrix and primary 404 does not bar character evidence when beneficiary of the will is in relevant deter- See, character is an element of the claim. mining of existence undue Bazan, 209, v. State 561 482 P.2d pertains even to when the evidence events denied, (Ct.App.), 254, cert. 561 taking place after the will was executed. (1977). states, dispo In some MacKenzie’s was relevant testimony be- sition to exert is undue influence one of the pertained ongoing cause it relation- of Page elements undue influence. 1 ship Thorp between and Hazel. (1960). case, 15.5 Wills This is not the § bemay Relevant evidence excluded if the however, generally, in New Mexico. See danger prejudice substantially of outweighs Nevertheless, of Cobb. the char probative its value. 403. N.M.R.Evid. Al beneficiary may acter of the be admitted though might MacKenzie’s testimony have grounds when a will is contested on the of prejudicial been in he indicated that he disposition undue influence even when thought Hazel, Thorp pro had deceived its to undue exert influence considered significant, bative value itas informed See, of claim. In element re Olsson’s of the extent to which Hazel trust Estate, (Tex.Civ.App.1961). 344 171 S.W.2d ed toup the time of her death. The show Evidence which tends to the char- of admission or exclusion is evidence within beneficiaries, heirs, of the acter court, discretion the trial and the like, if prove is admissible it tends to or court’s determination will not be disturbed disprove the existence of undue influence. absence a clear abuse of that (1961). Page 3 on Wills 29.129 evi- Such Valdez, 632, State discretion. v. 83 may occurring, dence concern actions or aff’d, 720, P.2d (Ct.App.), formed, reputation after will exe- 497 P.2d cert. U.S. See, Estate, cuted. re Ford’s 19 Wis.2d 34 L.Ed.2d S.Ct. generally, 120 N.W.2d 647 see admitting did err in MacKenzie’s Norton, Bryan testimony. Ga. 265 S.E.2d Barnett, Welch Okl. testimony. Thorp objected McKee’s also Weinstein, According 125 P. 472 to Phillip admission of some of McKee’s prohibit Rule 404 does not the use of char- testimony. Thorps McKee hired had acter evidence in civil where actions charac- ranch, work on it sugges his and was at his Weinstein, in ter is issue. Evidence they helped origi tion that Hazel. While ¶ (1980). Although discussing Fed- 404[03] nally high opinion McKee had held a of the eral Rule Evidence comment opinion Thorps, his changed by had January may applied our rule which similar. trial, At he testified that the reasons Page, Adopting expressed view change were that he did not think above, we hold that evidence which shows properly performing part that Joe was primary beneficiary the character of a employment agreement and that he grounds in- contested on the undue suspected his, interfering that Joe fluence admissible that evidence tends McKee’s, relationship his children. prove disprove the existence of undue opinion McKee’s was heard testimony suggested McKee’s influence. jury. When character evidence is admissi disposition ex- ble, Thorp might have a testimony opinion the form an properly ad- influence and was to that ert undue proper. character N.M.R.Evid. 405(a), opinion While the testified to was N.M.S.A.1978. We decide if mitted. must say 3.6 that for use of U.J.I. the will The directions months after until some

not formed every civil given in executed, was still close is to be the time the instruction N.M.R.Civ.P., 51(D), the will for the N.M.S.A. the execution of case. Rule enough to that, normally, ap- relevant. (Rep.1980) instructs opinion ap- Instructions Jury Uniform plicable Thorp, In re Will of by The case cited should be by Supreme our Court proved (1972), 125, 500 P.2d 410 Callaway, 84 N.M. an instruction. used. 3.6 is such U.J.I. the It does not consider point. on apply to formal Rules of Civil Procedure of is evidence character of whether issue Probate Code. proceedings under the prove undue influence. admissible 45-1-304, is U.J.I. 3.6 N.M.S.A.1978. case, of the submission that arising given in district court cases containing properly nurses notes records hospital the nurses could not be the Probate Code. because under was error cross-examined, records not because the in assert While is correct per se. McKee was opinions contained must be ing proof undue influence that The court for cross-examination. available evidence, McElhin by convincing clear and admitting testimony. err in did not ney Kelly, 356 P.2d (1960), believing that he is incorrect Jury Instructions. IV. when such 3.6 should not be used U.J.I. proof. on burden of Instructions already proof required. This court has giving of In first that the Thorp’s claims fraud proper 3.6 is in a decided that U.J.I. court was error. That struction case, that given an instruction is also when reads: instruction convincing. the evidence must be clear and civil cases that general is a rule all Co., Echols v. N.C. Ribble making a claim has the burden party N.M. (Ct.App.), cert. necessary sup- propositions proving (1973). The same rule weight greater port his claim applies By in the instant case. use of or, as it sometimes evidence [is] paragraph fourth in Instruction 18 contain called, evidence. preponderance ing the evidence be requirement that suffi- evidence is not Evenly balanced complied convincing, the court clear and cient. with the rule. Therefore, say in these instruc- when I portion of proof Thorp argues party has the burden tions that a convincing expression defining Instruction 18 clear and or use the any proposition on decide”, find”, I mean the word “in you or “if incorrect because you “if considering phrase persuaded, stantly” be is not included before the you must case, Cf., “tilt the scales in the the evidence affirmative”. all Winks, the burden which one has Hockett proposition probably (1971) (defining convincing more true than evi proof is clear and dence). persuaded We are not true. in the defini “instantly” word essential ground on the to be invalid For Will convincing “clear and evidence”. tion of of undue the evidence undue Moreover, no to believe that there is reason wholly cir- influence, although may it error, one, affected the there cumstantial, convinc- be clear and must verdict. clear and con- evidence to be ing. For scales in

vincing, it must tilt reversed judgment will not be [A] against the ev- weighed when affirmative instruction, unless of an erroneous reason * * * mind your leave opposition idence that without the evidence indicates evidence is that such with a conviction the instructions the verdict error in such true. different from would have been probably jury. returned actually verdict instruc- paragraphs of this The first three omitted.) 3.6, (Cites comprise N.M.S.A.1978. tion N.M.U.J.I. Melbourne, 169, 173, properly preserved.

Romero v. 561 when the error is N.M. (Ct.App.), P.2d cert. 51(J), Thorp R.Civ.P. N.M.S.A.1978. failed Hernandez, J., preserve any to error related to Instruction concurring). specially giving of In 13. We will consider this not issue. grounds struction 18 is not for reversal give requested Failure to instruc judgment. the Thorp’s tion on claim dominance. last is give requested Failure to in give the in failing that court erred to his Thorp struction on undue influence. claims 28, requiring Instruction find give that the next failure to his Instruction the Thorps dominated The in Hazel. 25 was error. That instruction reads: struction was written: There suspicion must be more than mere presumption For there to be a of undue of undue influence vitiate will or to influence, relationship the mere deny probate. it deny probate To will enough; parties is not be a there must influence, because of undue must there showing strong per- dominance be such influence exercised the time at son will procuring the over testatrix. made, the will destroy as.to the will of already in opinion, As stated Part I of this testatrix and cause her to do what Thorp’s she view showing would not have done of her own free on the of dominance necessary prove choice. undue influence incor- instruction, Thorp’s rect. Instead requested The denial of a is not instruction gave court its Instruction second gives court error when the an instruction paragraph of which was similar to 94 C.J.S. adequately Tapia covers the issue. quoted approval with earlier this Co., Panhandle Steel Erectors opinion. already We have indicated that a 428 P.2d given The instructions showing merely one if, direct of dominance is together, they are sufficient when read may give factors which rise to a fairly present applicable law. Id. In- instruction, presumption of undue influence when a requested stead the court gave confidential relation exists between tes- Instructions and 17 which read: primary Thorp’s tator and the beneficiary. 13. Undue influence is improper. Influ- instruction, by emphasizing one factor to alone, however, ence improper. others, the exclusion of all the law. distorts The term “undue influence” means err refusing The court did not this in- unfairly improperly one influ- struction. prevent person enced another as to exercising understanding from a free judgment of the trial is af- judgment. are Appeal paid firmed. costs appellant. 17. Undue in order make a void, directly must be connected IT SO ORDERED. IS its operate execution müst at time it was made. SUTIN, J., specially concurring. instructions, together,

These read contain WALTERS, J., dissenting. proponent’s pro- the essential law found in given posed Instruction 25. Since in- SUTIN, concurring). Judge (specially law, fairly present structions the court’s specially I concur. give proponents failure to Instruction was not in error. INTRODUCTION reply brief, Thorp suggests Thorp, Proceedings, giving

that the court erred in Statement Instruction 13 facts, pages primarily argument above. This set forth about 14 was not raised in Brief-in-Chief, appeal. nor does record indi those favor that, objected cate that been at the instruction has stated innumerable times level, Jury proof at trial. instructions are reviewable the trial court the burden of eyes with her appear must not at the scene If success- a case. plaintiff to establish resurgence should bandaged, are to be and emotional ful, appeals, facts and defendant the loss of a case plain- impel a reversal at aspect most favorable to viewed in an trial, he is not Thorp had one fair tiff, reasonable inferences below. If together with all a verdict, apple of the disregarding all a second bite support of the entitled to ballgame. The trial contrary. to the inferences and evidence fourth strike responsibility this rule. Invariably, appellant an violates must bear the entire judge may sway the trial, violation in a most Psychologically, fairly recorded for a fair judg- who sit in conscience of those situation and complex mind or difficult and factual most favor- reading After the facts ment. and inscrutable should not remain mute hesitate to Thorp, would not able to one the chal- judge The trial met sphinx. a casting judgment. When these reverse the lenge. out, judgment. affirm the

facts one will manifold reasons Having considered these “It evidence case. This is a substantial concur. purposes, specially I forti- plaintiff kept must be in mind reverse on Judge Walters would judgment jury verdict and the by fied of two ground that inadmissible evidence occupies the most of the trial court—thus and that the trial witnesses was admitted to the law.” The position favorable known jury a authority to order court was without discharged its jury in which the manner challenge will own motion. This trial on its Appel- unknowable. functions is to us an first. be answered impute to should be slow to late courts and to juries disregard of their duties a granted properly court A. The district diligence perspi- a want of trial courts a trial. jury Don Cash jury’s conduct. cacity appraising on the Judges Lopez and Walters differ antagonistic Neither should we look try this case to right of a trial court to prevail- eyes at the record which favors I side with jury “on its own motion.” fly speck nor in our examination. ing party, Judge Lopez. so, judges become “verdictators.” To do are: pertinent The facts judgment of the is hornbook law that the right for upheld court will be if it trial 11, 1980, petition was filed January On any reason. Hazel probate of the Will of for formal given hearing Notice was Cash Ferrill. cases, In borderline the verdict On that February held on to be be set aside jury controlling. It will not Hazel, Cash, date, filed grandson Don not affect the result due to error that does the Will. The objections probate likely most be the same if the result would notice. hearing vacated until further was just The con- or if the result is and fair. reasons, jury demand for trial For various reviewing be a science of the court should belatedly filed on by person jury a six was in the determination of af- decisive factor April April 1980. On biblical com- firmance or reversal. The demand to strike the filed a motion “Justice, pursue” Justice shall thou mand: timely filed in accord- was not because it the case has been guiding light. is the If of the Rules Civil ance with Rule 38 ap- fairly verdict-judgment tried ruling made on this No Procedure. judgment should be pears right, to be motion. ap- If and serious error affirmed. unfair pears that affects the verdict 26, 1980, held. hearing On June wrong, the appears extent it disqualify denying After a motion reversed. Claimed er-

judgment should be judge, court said: obvious, plain, sharp, unmistak- ror must be However, it a six-man try I will able, apparent and manifest. impar- fact should be jury. The trier of tial, problem that should resolve with the reti- perceive must this case We * * [Emphasis *. na, Justice optical not with an illusion. added.] record, hearing objections The was set for From the we know as a fact that August ques- At this when hearing, 18th. Don Cash a jury did demand in this action trial, tioned on the court said: under Rule 38. No motion was filed Don request The be al- 39(a) Cash under Rule to allow the court to * * * * [Emphasis

lowed added.] exercise its discretion and order a trial jury. 39(a) applicable. Rule requested The prepare an 15, 1980, August Order. On Order upon Order entered was based filed, paragraph the last of which reads: Cash’s demand for a trial under Rule motion, Court, on its own orders Thorp was a made only 38. The attack at upon matters issue the Peti- “Motion Jury to Strike “for Demand” tion for Formal Probate Last of the Will reason timely it was not filed in ac- Ferrill, and of Testament Hazel de- Cash cordance with 38 of Rule the Rules Civil ceased, Objections and the thereto hereto- * * Procedure This motion Cash, fore Don by filed be to a jury tried upon ruled by the Court. (6). [Emphasis of six added.] What is the of a effect the failure Thorp now claims that “The trial court upon district court to rule a motion? jury erred in trying case to a ‘on its ” own This motion.’ claim is frivolous. 60 “The making burden is on the a party Orders, C.J.S. and 1 (1969) Motions § motion to a ruling obtain from the court defines a motion follows: and failure to sodo constitutes a waiver of may A be applica- motion defined as an precluding the motion its consideration on tion for directing an order that some act appeal.” Ruff, Rea v. 580 472 S.W.2d be done applicant. in favor of the (Ark.1979). been a It has held that motion Motions, Rules, 56 Orders, Am.Jur.2d and upon by not ruled is denied operation of (1971). 1§ Atchison, Topeka law. Fe Rail Santa way Parr, Co. v. 96 Ariz. 391 The court applicant district cannot be an Schuckert, McElwain 13 Ariz. who makes a “motion” to itself to be decid- by App. (1971). ed itself. This rule for It could not have Suhre, acted “on its own motion.” The words in was not in Jones v. 345 followed Order, its own 515, 517-518, “on motion” are mean- (Me.1975). A.2d Note 5 The words, ingless. deleting By these the Order court said: accurately states action taken Generally, party a is entitled to a rul- pertinent part court. it reads: ing on a 60 motion. C.J.S. Motions * * * The Court orders that the mat- Orders, However, 38. either failure on § * * * ters at issue to a jury tried part moving proceed party of the to six with a action in a party motion or This Order was based upon Cash’s object manner inconsistent with the demand Now, trial under Rule 38. prior the motion to of the determination in the appeal, Thorp change seeks to or may motion constitute aban- waiver word “motion” to in order “initiative” to donment motion. Mo- of the 60 C.J.S. 39(a). switch from Rule 38 to Rule Under tions and Orders [Id. 517-518.] 39(a), Rule the trial court not “on may its Veterans Club of W. Ill. U. v. Illi Trav. grant own initiative” a jury trial neither Com’n, Ill.App.3d nois Com. side requested has that form trial. The denied an N.E.2d intervenor pertinent part 39(a) of Rule reads: pursue appeal request a status to when [Notwithstanding party the failure a upon. to intervene was never ruled to demand an action which court said: might such a demand have been made of * * * ruling on a The failure make a right, upon in its discretion equivalent motion is not the of the denial may

motion order a trial any [Emphasis or all issues. of a 303 N.E.2d motion. added.] 145.] [Id. right Each method known to allow the However, an order is entered where preserved by jury Probate the re- granting inconsistent 45-1-102(A) says: Code. Section sought, there is a denial of the motion. lief Brothers, Inc., 225 N.E.2d liberally Lutz v. Code shall be con- Goldblatt Probate applied promote strued and its under- (Ind.App.1967). policies. [Emphasis lying purposes and upon rule a motion has The failure to added.] satisfy use to various nuances which courts Unfortunately, liberally “shall be con- case, result. In the instant inas- desired mandatory provision, applied,” strued and proceed to seek a much as failed was not defined. These words take on vari- motion, proceeded but determination of See, meaning. Albuquerque ous shades of constituted by jury, to trial this conduct Haley, Hilton Inn v. 565 P.2d motion waiver or abandonment Gordon, (1977); Mann v. its con- precluding demand strike Phrases, 110 P. Words appeal. in this sideration Construction,” p. “Liberal To Legal prejudice was not visited give phrase, substance to the it means to try he his case to a because had to ascertain, generously expand, the lan- Alside, rather than the court. Hoffmann guage provisions of the code Inc., (8th 1979). Through- 596 F.2d 822 Cir. arrangement and inference to process of proceedings, out these the trial court has accomplish underlying purposes pol- and impartial. been fair and When the affida- provi- of the Probate Code. Where the icies disqualification the trial vit nature, sions of the code are remedial in usurped power court could have to de- language sup- should be construed so as to Instead, the court stated cide issues. press remedy. mischief and advance jury, “The trier of the fact should “Jury 45-1-306 on trial” is reme- Section that should resolve the impartial, be because it cures the defects in the old dial problem.” 30-2-11, probate code. Section N.M.S.A. properly granted The trial court provided appeal is 1941 that after an taken jury a trial. Cash court, probate judge from the to the district hearing de matter shall then stand for “The 39(a) applicable, B. If Rule were the tri- on novo in the district court the same as court exercised its discre- properly al appeal, party, but either on demand there- tion. for, right by jury have to a trial on shall ” Mistakenly, parties proceeded in this appeal such .... 39(a) appeal under Rule of the Rules of upon this old statute that the cases supra. set forth Civil Procedure upon written. Frock by Thorp relied were Thorp says that “the sole issue on this Fowlie, 506, (1969); P.2d 581 v. 80 N.M. 458 point is whether the trial court had the Court, Dist., v. State District Ninth Judicial jury to order the case tried to a discretion 331, (1936) Sheley 40 N.M. * * If, chance, per *.” this were the sole Shafer, 358, (1931). v. 298 P. 942 issue, not, proper- which it is trial court 1975, by jury trial under the Probate Since ly exercised its discretion. Rules of Pro- governed by Code is Civil cedure. 45-1-306, N.M.S.A.1978 Section

Probate Code reads: 39(a) Rule “It is clear that Under demanded, provided

If in the manner court had a broad discretion in deter trial Procedure, party the Rules of Civil a is mining grant whether to trial under by jury entitled a trial a formal facts circumstances in this case.” testacy proceeding any proceeding Company, and in v. Carlile Continental Oil 484, 486, 468 question (Ct.App.1970); controverted Alford any in which Drum, 298, (1961). any party arises to which has a v. fact discretion, grant a may, in its right by jury. to trial court constitutional “[A]

397 motion belated for a trial under Fed.R. delay and its refusal to enforce the time ” 39(b) 39(a) as N.M. Civ.P. Cox v. [same ].” limitation reversible error... . Sons, Inc., 138, C. H. Masland & 607 F.2d Scala, 478, Daly (D.C.Mun. v. 39 A.2d 479 (5th 1979); 144 Cir. Fontainebleau Hotel Kasten, App.1944); Stephens 127, v. 383 Ill. Goddard, Corp. v. 177 555 (Fla.App. So.2d 48 Tilton Sharp, v. N.E.2d 1965); Gechijian Co., v. Richmond Ins. (Tex.Civ.App.1932); S.W.2d 289 City of (1940). 25 N.E.2d Mass. For an Clark, v. Jackson 152 Miss. 118 So. 350 case, see, Kelley estate v. First State Bank (1928). Princeton, 81 Ill.App.3d 36 Ill.Dec. 39(a), applicable, Under Rule the trial 401 N.E.2d 247 Whenever a properly granted Don Cash a exists, doubt such doubt should be resolved trial. litigant in favor of according a trial jury. The grant failure of the court to such Testimony C. of McKenzie and McKee prejudicial relief is Bishop error. v. Ander properly admitted. son, Cal.App.3d Cal.Rptr. Judges Lopez and disagree Walters testimony the admission of of Howard every subject Almost case on this matter McKenzie concerning events which took

involves denial of a demand place winter of and the testimo- timely request when a has not been ny Phillip concerning McKee “opinion made. It is any opinion rare to discover of the Thorps as of December I 1979.” side which an abuse of discretion was found. Judge Lopez. every party sought case wherein a escape the trial court jury, heard

denial of McKenzie trial never constituted Mollo, Duffy abuse of discretion. Thorp objects to one sentence in McKen- (R.I.1979); Buddies, A.2d 263 Roberts 10, 1979, zie’s testimony around December Mich.App. 209 N.W.2d 720 Tri about a week before Hazel Cash Ferrill died Company State Insurance v. Busby, 253 hospital. It involved conversation (1973); Ark. People S.W.2d ex between and McKenzie in which Johnson, rel. Ill.App.3d Bucaro v. 291 McKenzie said: (1972); Simmons, N.E.2d 9 Shriner If thought Fred Mossman he could do (Tex.Civ.App.1972); S.W.2d 324 Balise v. there, better up big his shovel was as Underwood, 71 Wash.2d 428 P.2d 573 go right ahead, mine to I but also Ward, Montgomery Horton v. concerned, said as far as Hazel Cash is I Kan. International play your game, I will not tell her U., U.A., Co., A. & A.I.W. v. American M.P. very about this because I she was know 56 Tenn.App. 408 S.W.2d 682 ill. Inasmuch as by jury is a constitu objection testimony. No was made to this tional and statutory right, there is no rea Objections prior had been made thereto. son to believe cases, that in each of these if presence Out of the of the the last the trial court granted had a belated de communication between the court and jury trial, mand for no abuse of discretion Thorp’s lawyer was as follows: would have been right found. “The to objec- you[r] COURT: I understand that trial is so jealously regarded by our courts tion, it, you you wish should be able parties may that deprived not be of it prevail, to but I do not see that it is rigid procedural construction of a rule. unduly prejudicial, because it cuts Rules or limiting statutes filing time for ways. both I will allow the line trial, a demand for although mandato pursued subject subsequent to motions. terms, ry in always regarded. are not so It is the rule in this and in MR. jurisdictions other MONTEZ: was clear from Mr. that where the opposing party preju testimony Aguayo McKenzie’s not that Mr. diced, court, discretion, in its may waive was mistaken in his time frame

meetings. jive, It does not seem to inadmissible evidence and it is also ir- same, be the and I think relevant. something

COURT: That is that can be objections prior Such made to and with addressed cross examination. knowledge out of what reasons would be Thereafter, McKenzie length testified at stated McKee were not sufficient. “It to the end of his direct examination without long has been the rule in this state that any objections or motions made. The testi- general objections asserting any given mony was properly admitted in I evidence. testimony incompetent, irrelevant or im passing note in that Cash offered this whole proper no material foundation has testimony One, line of purposes: for two been laid are not sufficient to sustain a show the relationship of trust and confi- specific objection appeal.” raised on To dence between Hazel Cash Ferrill and beck v. United Nuclear-Homestake Part Thorp, and secondly, matters ancillary to ners, 431, 434, (Ct. that. relationship being This an important App.1973). issue, testimony McKenzie’s was relevant. testimony McKee’s was properly admit- ted in evidence.

(2) McKee McKee, Mr. Thorp’s objection, over D. There was substantial evidence to permitted testify as to the change in his support judgment. the verdict and opinion in December 1979. A Estate, In re Porter’s Or. teacup” “storm in a occurred at the bench P.2d states: Montez, between the court and Thorp’s law- theory yer, which underlies the doc- right over the of McKee to testify to Later, trine of undue influence is that testa- fact. it was learned that microphone tor is had induced various means to exe- not been turned off and the which, his, although heard the cute an instrument “tempest teapot.” form, will, requested reality Montez in outward the court advise the disregard person all that but the will of another which is occurred at the bench conference. The testator. good court did in substituted that of Such an instrument, effect, fashion. legal is not a will at testator, Although all. executed Mr. McKee had testified that at the be- will is his intention to make a so defective gining of his relationship with Thorps that the is invalid. instrument complete he had trust and confidence in them; that at the termination of his Judge Lopez’ rela- I opinion concur with tionship 1980, in January, judgment his had there is evidence of undue “Substantial in- changed. reasons, When asked to state Mr. fluence.” McKee stated: opinion and the introduce into this One of the reasons was that he was “suspicious subject case the of circumstanc- spending more and more time working Thorp claims “the es.” existence of with his horses and with Hazel than he ‘suspicious proven circumstances’ must be taking was care of the ranch properly give presumption rise a rebuttable of * * paying when I was salary *. An- opinion influence.” The adequately undue * * * other reason was that I [believed] “Suspicious answered this contention. cir- he interfering was my personal in cumstances,” by quotation introduced my affairs with children. Corpus from Juris in Hummer v. Secundum objection There was no to this testimony. 274, Betenbough, N.M. When Mr. McKee was asked question: this (1965), has never been defined. These “What were the reasons?” in words have been used workmen’s com- See, Objection

MR. MONTEZ: pensation on the cases. Salazar v. basis Lavaland gone that we have through Heights Company, this before. Block N.M. It has hearsay been ruled on. It is v. City and P.2d 948 Cordova of Albu- querque, 379 P.2d 781 testator’s first will and a later will was Spieker Skelly Company, Oil regarded ‘suspicious as a jus circumstance’ contract, (1954). Brown v. tifying an inference of undue influence * * *. Cobb, (1949). Estate, In Re Reddaway’s 214 Or. 329 P.2d The plays role it is one that creates a presumption of undue influence or undue The most profound opinion yet written in persuasion to the extent that Ha- subject New Mexico on the of undue influ- zel’s normal faculties yielded so that ence, century ago, over half was that of Will would not have so been made but for Ortiz, Justice Bratton in Cardenas v. improper such practice. conduct or The law keep P. 418 We must permit improper not influences to con- in wrong prac- mind that undue disposition trol the person’s property. of a secrecy circumvention, ticed in begin process We definition open proclamar traceable to declarations or noting presumption that a of undue influ- wrongdoer, tions of the but indications is presumption ence of fact. A “presump- usually which are attended with studious tion of fact” has been defined in many conceal, susceptible efforts to of di- ways. Phrases, See 33A Words and Pre- rect proof, but must be concluded from the sumptions Fact, p. seq. (1971). 87 et The facts and proven. circumstances This con- presumption is to be submitted to a jury as cept sensitively establishes how the doctrine

judges proved of facts decided operates. of undue influence ordinary test of experience. human physical and mental condition of Ha- wholly derived and directly from the cir- zel is importance determining a factor of cumstances of the case means of the disposition property whether the of her common experience of mankind without the the result of undue influence. fact aid or control any rules law whatever. unduly that she could have been influenced It infers a fact otherwise doubtful from a body due to the enfeeblement of mind or fact which proved. presumption If the evidence that her free will had been affect- established, undue influence is jury may ed. The need not find that her mind find as a fact that undue influence actually captured by Mental and another. existed to the extent that Hazel’s normal physical merely weakness is a circumstance yielded faculties to the undue influence of determining persuasion whether the Thorp. improper advantage and an unfair resulted. To establish presumption, we must apparent It is that her from search the record for “suspicious circum her an physical mental and condition made Evidence, facts, stances.” events which easy might mark for one who wish to influ- suggest conduct, doubts or distrust of the ence her. practice or intent of the influencer in his Will, theAt time of the execution of her relationship with a testator or testatrix in Hazel was not of unsound mind but she was preparation of a “suspicious will are physical infirmity such mental and Hazel, circumstances.” For example, past easily she could years prepa influenced in the age, suffering with cancer while Ostertag ration of her Dono hospital, in the Will. See Thorp who peri knew for a van, 6, 331 duration, 65 N.M. in od of short which existing opportu with patient, years age, nities in a while in the to exercise undue gave disease, hospital a ranch without Parkinson’s made consideration $1,000,000.00 $6,000.00 gift worth about to the doctor. The doctor exclusion of her family. “suspicious showing These are failed to meet the burden that cir gift cumstances” sufficient to was made pre establish a under circumstances fair sumption of undue influence to in aspects submit as a all and free of undue influence. question fact, of fact a jury. gift to by it has The was rescinded the trial court been held that ‘variance’ between appeal. affirmed on “[t]he Thorp’s alleged non-performance of sion. by executed Hazel as her The instrument McKee, Thorp’s to employment duties prior valid Will which

Will is invalid. If a McKee’s business regarding conversation existence, prior Will is in that was revoked children, totally are unrelated with McKee’s by precedence any over inheritance takes by Thorp any the exertion of influence intestacy. Hazel, “disposition or to the to exert over respects, I also concur In all other undue influence” on her. Lopez. Opinion Judge Will, the New York In re McNamara’s opinion, was majority case cited in the WALTERS, (dissenting). Judge upon language the case of In re based in opinion agree majority I do with the not Estate, 411, 1 Frank’s 165 Misc. N.Y.S.2d following particulars: (1937), in which other New York cases There a distinction 1. between quoted were to the effect that the declara- having by discretion to order a trial court oral, tions, are written or of the testator jury parties have failed to make a if the bearing upon the decedent’s admissible as when the issues are those timely demand capacity mental and the condition of by New Mexico Rule and when covered regarding objects of his testator’s mind may by advisory order a trial bounty, and to show the testator’s relations jury by of both jury, consent persons to those around him and the named 39(b) parties (Rule opposed to Rule are, however, “They enti- as beneficiaries. 39(b)). There is no constitutional nor com- acts, weight in proving tled to no external right by jury probate mon law to trial fraud or undue influence” and are either matters, Shafer, Sheley see purpose of “only admissible for the limited Ninth Judi- 298 P. State v. showing strength or weakness of the District, cial may not be extended They testator’s mind. Fowlie, 506, 507, (1936); Frock v. proof external to show affirmative or right to a undue influence.” probate trial in a matter is now conferred was tendered Mr. McKenzie’s evidence 45-1-306, by timely de- N.M.S.A. relationship, “to show the the trust and manded. decedent and Mr. confidence between * * * 39(a) may grant Rule not be read Thorp, secondly ancillary matters right trial court the order a trial of McKenzie’s evidence to that.” Some upon 39(b) its own motion. Rule allows the relationship Thorp, but showed testator’s advisory jury “upon court to call an motion interpretation of that relation- McKenzie’s or of its own initiative.” The absence of is not allowed ship (if “ancillary”) language “or of its own initiative” in majori- uppn cases which the the New York 39(a) requires “upon Rule motion” in Additionally, ty opinion relies. 39(a) Rule mean “motion of one of the permit- be that it would was not instructed parties.” The motion for trial made testimony for the limited ted to hear such protestor the will in this apparent- case testimony. such purposes allowable ly allowing since the order argued counsel further Protestant’s jury explicitly by jury recites that trial the “confi- the evidence would show ordered the court its own motion. self-serving relationship is used for dential grant I do not read Rule 39 to the discre- purpose is Thorp.” Mr. That purposes by upon tion to the trial court to act its own New recognized by either York except advisory jury. motion to order an by Page. cases or agree I do not that McKee’s testimo- that “undue in- was instructed void, fluence, ny anything had to do with the existence of make a must in order to with its execution and July undue influence connected directly time it was made. rely Mexico to at permit operate would New on the must nothing to do with had Page from to sustain its admis- McKee’s evidence quotation grounds time the I reverse on undue influence at the would this case Moreover, admitted, counsel stated in his made. inadmissible evidence was opening statement at trial testator’s and that the trial court without author- incapacity incoherence and at the time ity its to order trial on own motion. executing the not a will was contention otherwise, majority holding respect- I proceeding. fully dissent. criteria, certainly Under above

McKee’s evidence was admissible

any purpose questions relevant testimony, case. McKenzie’s as stated light majority, “sheds the rela-

tionship pri- testatrix between the and a

mary beneficiary” at time of the events to regarding

testified McKenzie negotiate. he was attempting lease to KNIPPEL, Jeffrey Plaintiff-Appellant, H. indicate ongoing relationship” does “an extent Hazel “the trusted COMMUNICATIONS, INC., death,” up to the time of her but NORTHERN those employer, are factors not at all concerned wheth- Fireman’s Insurance insurer, unduly Company, Defendants-Appel- er influenced Hazel at time will was executed six four lees. Nothing

months earlier. evidence No. 5322. either McKee and McKenzie concerned declaration of the testator which would Appeals Court of New Mexico. probative been have of her state of at mind Jan. time she the will. executed Thus, (a) I do not believe that the evi-

dence McKee and McKenzie was properly purpose recognized

limited offered for a Evidence,

under own Rules of preju- its outweighed

dice relevance any to the issue decided; (b) of Thorp’s evidence char-

acter, McKee, testified to was inad- Bazan,

missible under State P.2d 482 (Ct.App.1977). illogical It is

conclude, majority opinion as the seems

do, beneficiary that character of a evidence

may be admitted in undue influence

situation, at the time opinion same as the

recognizes that such is not an ele- opinion of undue dis-

ment influence. “disposition

cusses the to exert undue influ-

ence,” which is not an element New yet concludes such evidence ft^xico, “properly I admitted.” am unable to such If reasoning.

follow McKenzie’s relating

McKee’s testimony Thorp’s char-

acter intended to be declared admissible Thorp’s it

because shows actions in con- therewith,

formity ruling such a of admissi-

bility contrary to New Mexico law. See 404(b).

N.M.R.Evid.

Case Details

Case Name: Matter of Ferrill

Court Name: New Mexico Court of Appeals

Date Published: Jun 23, 1981

Citation: 640 P.2d 489

Docket Number: 4898

Court Abbreviation: N.M. Ct. App.