A probate court is hereby established for each county, which shall be a court of record, and, until otherwise provided by law, shall have the same jurisdiction as heretofore exercised by the probate courts of New Mexico and shall also have jurisdiction to determine heirship with respect to real property in all proceedings for the administration of decedents' estates. The legislature shall have power from time to time to confer upon the probate court in any county in this state jurisdiction to determine heirship in all probate proceedings, and shall have power also from time to time to confer upon the probate court in any county in this state general civil jurisdiction coextensive with the county; provided, however, that such court shall not have jurisdiction in civil causes in which the matter in controversy shall exceed in value three thousand dollars ($3,000.00) exclusive of interest and cost; nor in any action for malicious prosecution, slander and libel; nor in any action against officers for misconduct in office; nor in any action for the specific performance of contracts for the sale of real estate; nor in any action for the possession of land; nor in any matter wherein the title or boundaries of land may be in dispute or drawn in question, except as title to real property may be affected by the determination of heirship; nor to grant writs of injunction, habeas corpus or extraordinary writs. Jurisdiction may be conferred upon the judges of said court to act as examining and committing magistrates in criminal cases, and upon said courts for the trial of misdemeanors in which the punishment cannot be imprisonment in the penitentiary, or in which the fine cannot be in excess of one thousand dollars ($1,000). A jury for the trial of such cases shall consist of six men. The legislature shall prescribe the qualifications and fix the compensation of probate judges. (As amended September 20, 1949.)

ANNOTATIONS

The 1949 amendment, which was proposed by S.J.R. No. 13 (Laws 1949) and adopted at the special election held on September 20, 1949, by a vote of 16,649 for and 10,771 against, amended this section to provide for jurisdiction in the probate courts to determine heirship with respect to real property in proceedings for administration of decedents' estates, to provide that the legislature would prescribe the qualifications and fix the compensation of probate judges and to delete a provision relating to transfer of cases in which the probate judge was disqualified. Prior to amendment this section read: "A probate court is hereby established for each county, which shall be a court of record, and, until otherwise provided by law, shall have the same jurisdiction as is now exercised by the probate courts of the Territory of New Mexico. The legislature shall have power from time to time to confer upon the probate court in any county in this state, general civil jurisdiction coextensive with the county; provided, however, that such court shall not have jurisdiction in civil causes in which the matter in controversy shall exceed in value one thousand dollars, exclusive of interest; nor in any action for malicious prosecution, divorce and alimony, slander and libel; nor in any action against officers for misconduct in office; nor in any action for the specific performance of contracts for the sale of real estate; nor in any action for the possession of land; nor in any matter wherein the title or boundaries of land may be in dispute or drawn in question; nor to grant writs of injunction, habeas corpus or extraordinary writs. Jurisdiction may be conferred upon the judges of said court to act as examining and committing magistrates in criminal cases, and upon said courts for the trial of misdemeanors in which the punishment cannot be imprisonment in the penitentiary, or in which the fine cannot be in excess of one thousand dollars. A jury for the trial of such cases shall consist of six men.

"Any civil or criminal case pending in the probate court, in which the probate judge is disqualified, shall be transferred to the district court of the same county for trial."

Cross references. — For salaries of probate judges, determined according to county classifications, see 4-44-1 NMSA 1978 et seq.

For Uniform Probate Code, see Chapter 45 NMSA 1978.

"Otherwise provided by law". — Phrase "until otherwise provided by law" means that the legislature has power to modify or alter the particular exercise of probate jurisdiction; included within this grant is power to confer concurrent probate jurisdiction upon the district courts. In re Will of Hickok, 1956-NMSC-035, 61 N.M. 204, 297 P.2d 866.

Probate jurisdiction alterable. — Under this section it was not intended that the probate jurisdiction of these courts should remain frozen, but the legislature may alter, limit or extend jurisdiction of probate courts over all matters which by the English law and general law of this country are from their nature classed generally as within their probate jurisdiction. Dunham v. Stitzberg, 1948-NMSC-037, 53 N.M. 81, 201 P.2d 1000, overruled by In re Conley's Will, 1954-NMSC-112, 58 N.M. 771, 276 P.2d 906, superseded by statute, In re Estate of Harrington, 2000-NMCA-058, 129 N.M. 266, 5 P.3d 1070.

Probate jurisdiction not necessarily exclusive. — In view of this section and the fact that probate proceedings are special in their nature and creatures of statute, word "exclusive" should not be read into provisions of this section relating to probate court jurisdiction. In re Will of Hickok, 1956-NMSC-035, 61 N.M. 204, 297 P.2d 866.

Determination of heirship by district courts constitutional. — Former 16-3-20, 1953 Comp., was not constitutionally objectionable hereunder in providing that district courts should have power to determine heirship in probate or administrative proceedings. In re Will of Hickok, 1956-NMSC-035, 61 N.M. 204, 297 P.2d 866.

Scope of proviso concerning title or boundaries of land. — Proviso touching denial of jurisdiction in matters wherein title or boundaries of land are in dispute is a limitation on future legislative action relative to conferring additional civil jurisdiction on probate courts; it does not amount to a present grant of exclusive original jurisdiction in district courts on such matters. In re Conley's Will, 1954-NMSC-112, 58 N.M. 771, 276 P.2d 906, superseded by statute, In re Estate of Harrington, 2000-NMCA-058, 129 N.M. 266, 5 P.3d 1070.

No jurisdiction in probate courts to try title to property. — Probate courts have no jurisdiction to try or determine title to either real or personal property as between an estate or heirs and devises on the one hand and strangers to the estate on the other; this jurisdiction is vested exclusively in the district court. In re Conley's Will, 1954-NMSC-112, 58 N.M. 771, 276 P.2d 906, superseded by statute, In re Estate of Harrington, 2000-NMCA-058, 129 N.M. 266, 5 P.3d 1070; McCann v. McCann, 1942-NMSC-051, 46 N.M. 406, 129 P.2d 646.

Where a widow was incidentally an heir but her claim to one-half of the property involved was not the claim of an heir in administration, but was a claim arising under the community property system, the probate court was without jurisdiction to try her controverted claim of title to one-half the real estate involved as her share of the community. In re Conley's Will, 1954-NMSC-112, 58 N.M. 771, 276 P.2d 906, superseded by statute, In re Estate of Harrington, 2000-NMCA-058, 129 N.M. 266, 5 P.3d 1070.

Constitutional amendment of 1949 is self-implementing. In re Conley's Will, 1954-NMSC-112, 58 N.M. 771, 276 P.2d 906, superseded by statute, In re Estate of Harrington, 2000-NMCA-058, 129 N.M. 266, 5 P.3d 1070.

Admission of wills to probate is primary function of probate courts, both in territorial days and since statehood, without notice taken of whether the property disposed of be real or personal estate. Humphries v. Le Breton, 1951-NMSC-029, 55 N.M. 247, 230 P.2d 976.

Declaration of heirship. — A declaration of heirship is the declaration of a status, that the decedent is who he was and was known to be; and a probate court can, by its determination of heirship, finally settle the ownership of a decedent's estate, both real and personal. In re Conley's Will, 1954-NMSC-112, 58 N.M. 771, 276 P.2d 906, superseded by statute, In re Estate of Harrington, 2000-NMCA-058, 129 N.M. 266, 5 P.3d 1070.

Attack on decree of heirship. — A decree of the probate court determining heirship, made without personal or constructive service of process upon ascertainable relatives of deceased, is open to direct or collateral attack. Harlan v. Sparks, 125 F.2d 502 (10th Cir. 1942).

Claim against administrator. — District courts had no original jurisdiction to allow a claim against an administrator and surety on his bond, where probate court had jurisdiction and claim had been filed, allowed and paid in part, and no appeal was taken from action of probate court, and where complaint neither alleged grounds for nor prayed for equitable relief, but asked only a money judgment. Michael v. Bush, 1921-NMSC-011, 26 N.M. 612, 195 P. 904.

Appointment of administrator is void when will on file names executors. Baca v. Buel, 1922-NMSC-062, 28 N.M. 225, 210 P. 571.

Tort claims not covered. — Statutes providing for filing of claims in the probate court, the serving of a copy and a notice of hearing and a presentment thereof to the probate court did not cover tort claims. Frei v. Brownlee, 1952-NMSC-099, 56 N.M. 677, 248 P.2d 671.

Compensation. — The salaries of the judges of constitutionally established courts are not subject to the constitutional prohibition against an increase in compensation during the term for which they were elected. 1979 Op. Att'y Gen. No. 79-27.

Law reviews. — For article, "Medical Malpractice Legislation in New Mexico," see 7 N.M. L. Rev. 5 (1976-77).

For survey, "Article VII of the New Probate Code: In Pursuit of Uniform Trust Administration," see 6 N.M. L. Rev. 213 (1976).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 20 Am. Jur. 2d Courts § 69.

Contempt, power to punish for contempt, 8 A.L.R. 1551, 54 A.L.R. 322, 73 A.L.R. 1187.

Mandamus against probate courts, to compel surrogate to require witness to testify or produce documents, 41 A.L.R. 436.

Probate court, corepresentatives in, suits between, 63 A.L.R. 455.

Attorney's fees, allowance for in suit to remove estate from probate court, 79 A.L.R. 532, 142 A.L.R. 1459.

Jurisdiction to grant relief from election as to taking under will, 81 A.L.R. 760, 71 A.L.R.2d 942.

Jurisdiction to determine title when personal representative claims in own right, 90 A.L.R. 134.

Jurisdiction, guardianship court's exclusive, as against execution, attachment, etc., 92 A.L.R. 919.

Mandamus against probate courts, to compel approval of bonds, 92 A.L.R. 1211.

Compromise of liquidated contract claim or money judgment, power of court to authorize or approve, 155 A.L.R. 201.

Removal of child from state pending proceedings for custody as defeating jurisdiction to award custody, 171 A.L.R. 1405.

Jurisdiction of court to award custody of child domiciled in state but physically outside of it, 9 A.L.R.2d 434.

Nonresidence as affecting one's right to custody of child, 15 A.L.R.2d 432.

Jurisdiction of suit involving trust as affected by location of res, residence of parties to trust, service and appearance, 15 A.L.R.2d 610.

Appealability of order, of court possessing probate jurisdiction, allowing or denying tardy presentation of claim to personal representative, 66 A.L.R.2d 659.

21 C.J.S. Courts § 76.