Barngrover v. Estate of Barngrover , 95 N.M. 42 ( 1980 )

OPINION

HERNANDEZ, Judge.

Proponents petitioned for formal probate of a photocopy of the purported last will of Anna Barngrover. They alleged that the original instrument was mislaid or lost by decedent before her death. The petition was opposed by James Barngrover, the decedent’s son. The trial court’s decision reads as follows:

FINDINGS OF FACT

1. The deceased executed a will in Iowa and a copy has been produced for probate.

2. The will is lost or misplaced even though diligent search and inquiry has been made for it.

3. The deceased never revoked nor changed the will, nor had any intention to do either.

4. The document submitted for probate (the copy of the deceased’s will) is the last will and testament of the deceased, duly made, and is in all respects in proper form to be admitted to probate.

CONCLUSIONS OF LAW

1. The Court has jurisdiction of the parties and the subject matter of this action.

2. The deceased died testate and the document presented for probate is her last will and testament.

3. The document presented for probate should be admitted to probate.

The appellant alleged three points of error:

POINT I: The court erred as a matter of law in concluding that the will of Anna D. Barngrover was lost.

POINT II: No evidence was presented to support a finding that the will of Anna D. Barngrover was lost.

POINT III: The evidence presented by the proponent of the will was insufficient to support a finding of non-revocation.

As can be seen, appellant’s second and third points of error go to the substantiality of the evidence to support the trial court’s second, third and fourth findings of fact. The first point of error goes to the correctness of the legal conclusion to be drawn from such findings. It is not necessary to consider each of these points separately. The pertinent facts are these: Anna D. Barngrover, the testatrix, was a widow. The appellant James O. Barngrover is her son. Mary E. Barngrover is the divorced wife of James. Terry Barngrover and Virginia (Barngrover) Thompson are the children of James and Mary. On September 6, 1973, Anna executed her Will at Burlington, Iowa. By her Will, Anna bequeathed $1,000.00 to an old friend and neighbor Carl Piel. The remainder of the estate was divided into four equal shares; one share to James, another to Mary, another to Terry and the last to Virginia. In the Spring of 1977 Anna decided to move to Albuquerque, she sold her home and furnishings and went to the office of Mr. R. R. Beckman, her attorney, and obtained the copy of her will. Anna had worked for Mr. and Mrs. Beck-man for almost forty years and Mr. Beck-man had represented Anna and her husband for that period of time. Mr. Beckman testified that Anna, a Roman Catholic, never did approve of her son’s divorce. She was very close to Mary and her two grandchildren. They paid a lot more of attention to her than her son. Her relations with her son were not close. At the time she came to pick-up her Will she did not indicate that she had any intention of revoking it. Anna and her husband had spoken to the members of their family about their Will and about their intention of dividing what they had into four shares for their son, Mary and the two grandchildren. Anna’s husband died in March 1973. James testified that his mother came to live with him and his wife after she moved to Albuquerque. He further testified that he agreed to give her room and board for one year in exchange for her Ford automobile. Anna kept all of her valuable papers in a strong box in her room. The box was never locked. James testified that his mother had made all of the arrangements for her burial in Iowa and told him that there was $1,200.00 in the strong box to cover the costs. After her death on April 2, 1978, James took the money and paid the expenses, including his own to go back to the funeral. He also looked for her Will in the strong box and in all of the rest of her belongings but could not find it. A search was also made in Burlington at the banks where Anna had deposits and inquiries were made at the County Clerk’s office but the Will was never found.

The law governing situations such as this is as follows:

[I]n addition to accounting for non-production of the original instrument, the proponent of a missing will must prove its due execution, its contents, and facts or circumstances showing its nonrevocation. [Citations omitted.] The proponent must prove his case by evidence that is clear, satisfactory, and convincing, but it need not be free from doubt. [Citations omitted.]

It will be presumed that the instrument was destroyed by the testator with the intention of revoking it if the proponent fails to give an explanation for the absence of a will which was in the testator’s possession or in a place to which he had ready access. Perschbacher v. Moseley, 75 N.M. 252, 403 P.2d 693 (1965).

“It is the function of the factfinder to weigh the evidence and decide on the credibility of witnesses.” Fierro v. Murphy, 85 N.M. 179, 510 P.2d 112 (Ct.App.1973). “The presumptions are in favor of verdicts and the facts are to be viewed in the aspect most favorable to the prevailing party. We will indulge all reasonable inferences in support of the verdicts, disregarding all inferences or evidence to the contrary.” Mascarenas v. Gonzales, 83 N.M. 749, 497 P.2d 751 (Ct.App.1972). Applying foregoing principles, it is our opinion that there was sufficient evidence to permit the district court to draw a reasonable inference against the presumption, and substantial evidence to support the judgment. We affirm.

SUTIN, J., specially concurring. WALTERS, J., concurring with SUTIN, J.