Under the laws of the Territory of New Mexico, a judgment of a
probate court in 1867 admitting a will to probate cannot be
annulled by the same court, in a proceeding instituted by an heir
more than twenty years
Page 138 U. S. 115
after the judgment was rendered and more than four years after
the heir became of age.
Under the "laws of Velarde," which, under the provisions of the
Kearny Code, remained in force in that territory until modified by
statute, the practice and procedure of the probate courts were
matters of statutory regulation, the probate judge had jurisdiction
to admit wills to probate by receiving the evidence of witnesses,
and his judgment was valid, and, although reviewable on appeal, was
conclusive unless appealed from and reversed.
The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is an appeal from a judgment of the Supreme Court of the
Territory of New Mexico. The opinion of that court is reported as
Bent v. Thompson, 23 P. 234. In connection therewith, that
court made and filed a statement of facts in substance as
follows:
Alfred Bent died on the 9th of December, 1865, leaving as his
only heirs at law his widow, Guadalupe Bent, and three sons,
namely, Charles Bent, William Bent (the appellant), also sometimes
called Julian Bent, and Alberto Silas Bent. Charles Bent arrived at
his majority on the 26th of April, 1881; William Bent on the 31st
of May, 1883, and Alberto Silas Bent on the 20th of October, 1885.
The widow was the mother of the above-named three children. She
presented to the Probate Judge of Taos County, in the Territory of
New Mexico, a last will and testament which she claimed to be and
which purported to be the last will and testament of said Alfred
Bent, executed December 6, 1865, the terms of which are not
material. On the 6th of March, 1867, this will was proved,
approved, and ordered to be recorded by the said probate judge as
the last will and testament of the said Alfred Bent, the record of
the probate court on that day being in
Page 138 U. S. 116
these words, the judge of probate, the clerk, and a
deputy-sheriff being named as present:
"The administrators of the estate of Alfred Bent, deceased,
presented the will of said deceased for approval. The court
examined said will and the witnesses in it mentioned, and, finding
it correct according to law, approved it, and ordered that it be
recorded in this office."
The said Guadalupe has since intermarried with one George W.
Thompson. No appeal or other proceedings in regard to the will or
its probate were had, so far as the record discloses, until August
12, 1887, when the appellant filed his petition in the Probate
Court of Taos County for the reprobate of the will and the setting
aside of the record of its former probate. At the time such
petition was filed, more than twenty years had elapsed since the
will was probated and recorded, and the petitioner had arrived at
his majority more than four years prior to the filing of said
petition, which was the commencement of this proceeding. The record
does not disclose whether or not Charles Bent, William Bent, and
Alberto Silas Bent were summoned to be present at the time the will
was probated in 1867, but does show that Guadalupe Bent, widow of
the decedent and mother of the children, was a party to the
proceeding.
Guadalupe Thompson, Alberto Silas Bent, Charles Bent, the
Maxwell Land Grant Company, and the Maxwell Land Grant and Railway
Company appeared in the proceeding as respondents, and, on the 7th
of September, 1887, the probate court made a decree declaring null
and void the probate of March 6, 1867, and declaring further that
the paper writing so proposed by said Guadalupe Thompson as the
last will of Alfred Bent was not such last will, and ordering that
it be rejected and the record thereof annulled.
Among the grounds of objection filed in the probate court by the
Maxwell Land Grant Company and the Maxwell Land Grant and Railway
Company to its action in reopening the matter of the probate were
the following, called "third" and "fourth:"
"Because said petitioner has not made his application, if he had
the right to do so, within a reasonable time after the former
probate of said will. Because this Court and
Page 138 U. S. 117
judge thereof has no right or authority to disprove the acts of
his predecessor done in his official capacity more than twenty
years since, or at any other time, the record thereof having during
all that time remained in full force and effect, and other parties
having acquired rights thereon on the faith of the same."
The two companies took an appeal to the District Court sitting
within and for the County of Taos from the judgment of the probate
court, assigning, among other reasons of appeal, the following:
"6th. Because neither the probate court nor the probate judge
had jurisdiction to entertain the said petition or grant the
prayers thereof."
"7th. Because neither said probate court nor said probate judge
could inquire into the validity of the acts of the probate court or
probate judge done at a regular term of the probate court more than
twenty years prior to the filing of said petition of William
Bent."
The district court sustained the grounds of appeal above
specified, and declared null and void, and vacated, set aside, and
held for naught, the proceedings of the probate court of September
7, 1887. From this judgment William Bent appealed to the supreme
court of the territory. That court affirmed the judgment of the
district court and entered a judgment dismissing the petition and
declaring null and void, vacating, setting aside, and holding for
naught the proceedings of the Probate Court of Taos County had in
September, 1887. William Bent has appealed to this Court.
In its opinion, the supreme court discusses the question of
probating a will in common form and in solemn form, in view of the
fact, that the petitioner demanded a reprobate of the will in
solemn form, and that the opposing parties contended that the
probate of a will was a purely statutory proceeding in New Mexico,
and that its laws did not recognize the double form of probating
wills, nor require notice to heirs or legatees. The complaint of
the petition was that neither the petitioner nor Charles Bent nor
Alberto Silas Bent had any notice of the intention to present the
will for probate, and were not present or heard. The supreme court
held that the civil law was in force in New Mexico, and it examined
the provisions
Page 138 U. S. 118
thereof in regard to proving a will, and arrived at the
conclusion that any person interested could have a will probated,
without notice to the heirs or other interested parties, it being
required only that witnesses should be summoned, and only one form
of probate being prescribed. That by the Kearny Code of 1846 the
prior "Laws of Velarde," in relation to the execution and proving
of wills and the administration of the estates of deceased persons,
dating back to 1790, were continued in force. That by section 17 of
the Act of January 12, 1852 (Laws 1851-1852, p. 356; Compiled Laws
of New Mexico, 1884, sec. 1393), authority was given to probate
judges in their respective counties to "qualify" or probate
wills
"by receiving the evidence of the witnesses who were present at
the time of making the same, and all other acts in relation to the
investigation of the validity thereof."
That by the Act of January 26, 1861 (Laws 1860-1861, p. 62;
Compiled Laws, secs. 1446-1449), it was provided as follows:
"No judge of probate shall have the power to declare any will,
codicil, or any other testamentary disposition to be null and void
under the pretext of the want of the solemnities prescribed by the
laws of this territory by the testator making such
disposition."
That the second section of the same act provided in substance
that when a will was presented for probate, if the probate judge
should doubt whether it ought to be approved or not, he should
return the will immediately to the person who presented it for
probate, noting on the foot of its his reasons for refusing
approval. That the third section of the same act provided that it
should be the duty of the person to whom the will was returned to
present the same at the next regular term of the district court of
the county, whose duty it was made to examine into the matter and
declare by its decision whether the will was valid or void, and
then return it to the party, and that there was a proviso to the
fourth section of the act, reading as follows:
"That any proceedings had by said judges of probate not in
conformity with the provisions of this act shall be declared null
and of no effect by the district court, and all at the cost of the
said probate judges."
The supreme court declares that such was the state of the
Page 138 U. S. 119
law of the territory at the time the will was executed and
probated and at the time Alfred Bent died; that in
Browning v.
Browning, 9 P. 677, it had held that the common law was not
introduced into the territory by the organic act except in a very
limited degree; that even in 1876, when the common law was formally
adopted as the basis of the jurisprudence of the territory, it was
the common law "as recognized in the United States" that was
adopted -- that is,
"the common law or
lex non scripta, and such British
statutes of a general nature, not local to that kingdom nor in
conflict with the Constitution or laws of the United States nor of
this territory, which are applicable to our condition and
circumstances, and which were in force at the time of our
separation from the mother country;"
that it was not intended by the adoption of the common law in
1876 to repeal the statute laws of the territory, but only such
portions of the common law were adopted as did not conflict with
such statute laws; that the statute laws governing probate courts
and defining the manner in which wills should be probated in the
territory remained in force until modified by the act of 1889, and
were the basis of the jurisdiction and authority of the probate
courts; that the probate of a will in the manner prescribed by the
statute was conclusive, and must be recognized and admitted in all
courts as valid so long as such probate stands, and that, as it
appeared by the record that the will was probated as required by
law, by the mother of the petitioner, who was an interested party,
more than twenty years prior to the filing of his petition in the
probate court, and that the petitioner delayed filing his petition
for more than four years after he attained his majority, and as the
record stated that the probate court examined the will and the
witnesses mentioned in it, and found it correct according to law,
approved it, and ordered it to be recorded in the probate office,
and as, by the statute of New Mexico (Compiled Laws of 1884, secs.
1869, 1881), an infant was allowed one year after the removal of
his disabilities to assert his rights, except as to real estate, in
which case the period was extended to three years, the petitioner
had no rights in the premises and no standing in court at the time
he instituted the proceeding.
Page 138 U. S. 120
The only question presented for consideration is whether, under
the laws of the Territory of New Mexico, a judgment of a probate
court in that territory admitting a will to probate can be annulled
by the same court in a proceeding instituted by an heir more than
twenty years after the original judgment was rendered and more than
four years after the heir became of age.
The provisions of the laws of New Mexico applicable to
proceedings such as those involved in the present case, which were
in force at the date of the probate in 1867, were as follows, as
contained in the Compiled Laws of 1884:
"§ 562. The several probate judges shall have exclusive original
jurisdiction in all cases relative to the probate of last wills and
testaments, the granting letters testamentary and of
administration, and the repealing the same; . . . to hear and
determine all controversies respecting wills, the right of
executorship, administration, or guardianship."
Kearny Code 1846.
"§ 536. Appeals from the judgment of the probate court shall be
allowed to the district court in the same manner, and subject to
the same restriction, as in case of appeals from the district to
the supreme court."
Kearny Code 1846.
"§ 1393. Probate judges in their respective counties are
authorized to qualify wills by receiving the evidence of the
witnesses who were present at the time of making the same, and all
other acts in relation to the investigation of the validity
thereof."
Act Jan. 12, 1852.
"§ 1365. The laws heretofore in force concerning descents,
distributions, wills, and testaments, as contained in the treatises
on these subjects written by Pedro Murillo de Lorde [Velarde] shall
remain in force so far as they are in conformity with the
Constitution of the United States and the statute laws in force for
the time being."
Kearny Code 1846.
The following four §§ were enacted January 26, 1861:
"§ 1446. No judge of probate shall have the power to declare any
will, codicil, or any other testamentary disposition to be null and
void under the pretext of the want of the solemnities
Page 138 U. S. 121
prescribed by the laws of this territory by the testator making
such disposition."
"§ 1447. When any probate judge shall doubt whether any
testamentary disposition as those mentioned in section 1446 ought
to be approved on account of the want of any solemnity as
aforesaid, in case that such should be the opinion of any judge of
probate, he shall immediately return to the person who may have
applied for the approval of such document, the testament, codicil,
or any other testamentary disposition which may have been placed in
his hands for the approval thereof, noting at the foot of said
document the positive reasons on which he founds his opinion for
refusing his approval."
"§ 1448. It shall be the duty of any person to whom may have
been returned a document, such as are mentioned in this act, to
present the same to the district court of their respective county
at the first regular term of said court, and it shall be legal for
said court to examine such documents, together with the
observations submitted by the probate judge who may have refused
his approval, and it shall be the duty of the said district court
at the same term, to declare the validity or nullity of such
documents and to return the same, after making its decision, to the
party interested."
"§ 1449. If, in the judgment of any probate judge of this
territory, any will, codicil, or any other testamentary disposition
does not merit his approval, he shall return the same to the party
interested, as required in section 1447, but in this case the
probate judge shall grant letters of administration to the person
or persons appointed as testamentary executor in said documents in
preference to any other person who may also solicit them,
provided that any proceedings had by said judges of
probate not in conformity with the provisions of this act shall be
declared null and of no effect by the district court, and all at
the cost of the said probate judges."
No further change in the probate laws was made until 1889. In
addition to the foregoing may be mentioned the following, by which
all laws in force in New Mexico touching wills, if any, additional
to those contained in Velarde's treatise, were continued in force
until supplanted by legislation:
Page 138 U. S. 122
"All laws heretofore in force in this territory which are not
repugnant to or inconsistent with the Constitution of the United
States and the laws thereof or the statute laws in force for the
time being shall be the rule of action and decision in this
territory."
Kearny Code 1846, Tit. Laws, sec. 1, found in Compiled Laws of
1884, p. 114.
This section was substantially reenacted by the Act of July 14,
1851, and again in the Compiled Laws of 1865, p. 512 (Chapter
LXXII, sec. 6), but was omitted by the compilers from the Compiled
Laws of 1884 on the ground that in their opinion it was "obsolete
and out of date." Compiles Laws, 1884, p. 1402, par. 72. The volume
of 1884 is, however, only a compilation of existing law, and
neither reenacts nor repeals anything.
The common law was not adopted in New Mexico until 1876, when
the following act was passed, (Act January 7, 1876, c. 2, § 2;
Compiled Laws § 1823): "In all the courts of this territory, the
common law as recognized in the United States of America shall be
the rule of practice and decision." Upon this act, the Supreme
Court of New Mexico has held as follows:
"We are therefore of opinion that the legislature intended by
the language used in that section to adopt the common law, or
lex non scripta, and such British statutes of a general
nature, not local to that kingdom or in conflict with the
Constitution or laws of the United States nor of this territory,
which are applicable to our condition and circumstances and which
were in force at the time of our separation from the mother
country."
Browning v. Browning, 9 P. 677, 684.
In regard to the argument made that, by the provision in the
organic act of New Mexico, declaring that the jurisdiction of the
probate courts should be "as limited by law" (Act Sept. 9, 1850, §
10; 9 Stat. 449), the practice and procedure of the common law
touching matters of probate came into force in New Mexico,
regardless of any statutory provisions of the territory, which view
is sought to be supported by a reference to
Ferris v.
Higley, 20 Wall. 375, it may be said that that case
relates only to the jurisdiction, and not to the practice, of
Page 138 U. S. 123
those courts, and that in
Hornbuckle v.
Toombs, 18 Wall. 648,
85 U. S. 656,
this Court, speaking by MR. JUSTICE BRADLEY, said:
"From a review of the entire past legislation of Congress on the
subject under consideration, our conclusion is that the practice,
pleadings, and forms and modes of proceeding of the territorial
courts, as well as their respective jurisdictions, subject, as
before said, to a few express or implied conditions in the organic
act itself, were intended to be left to the legislative action of
the territorial assemblies, and to the regulations which might be
adopted by the courts themselves. Of course, in case of any
difficulties arising out of this state of things, Congress has in
its power at any time to establish such regulations on this as well
as on any other subject of legislation as it shall deem expedient
and proper."
From an examination of the provisions of the "Laws of Velarde,"
which, under the provisions of the Kearny Code, remained in force
until modified by statute, we are of opinion that the practice and
procedure of the probate courts were matters of statutory
regulation; that the probate judge had jurisdiction to admit wills
to probate by receiving the evidence of the witnesses, and that his
judgment was valid, and, although reviewable on appeal, was
conclusive, unless appealed from and reversed. It is to be remarked
that in the findings of fact made by the supreme court of the
territory, it is not stated that William Bent was not present at
the probate and was not cited to appear, but it is stated only that
the record does not disclose whether or not he was summoned to be
present.
Sections 1860, 1863, and 1869 of the Compiled Laws of New Mexico
of 1884 are as follows:
"§ 1860. The following suits or actions may be brought within
the time hereinafter limited, respectively, after their causes
accrue, and not afterwards, except when otherwise specially
provided."
"§ 1863. Those founded upon accounts and unwritten contracts;
those brought for injuries to property, or for the conversion of
personal property, or for relief upon the ground of fraud, and all
other actions not herein otherwise provided for and specified,
within four years. "
Page 138 U. S. 124
"§ 1869. The times limited for the bringing of actions herein
shall, in favor of minors and persons insane or under any legal
disability, be extended so that they shall have one year from and
after the termination of such disability within which to commence
said actions."
It was held by the Supreme Court of New Mexico, in
Browning
v. Browning, 9 P. 677, 684, 685, that the limitations of the
statute of January 23, 1880, of New Mexico, of which those three
sections are a part, applied to proceedings in the probate court.
We think this construction was correct, and that the present suit
is an action to annul a former judgment of the probate court. Such
is the character of the judgment declaring the former probate to be
null and void.
Moreover, by sections 1446-1449 of the Compiled Laws, before
quoted, the course of procedure of the probate judge was distinctly
defined, and he had no power to declare the will void. On the
contrary, his proceeding, not being in conformity with the
provisions of the Act of January 26, 1861, was, as declared by that
act, null, and of no effect.
Judgment affirmed.