IN RE WILL OF BOURNE, 1983-NMCA-046, 99
N.M. 694, 662 P.2d 1361 (Ct. App. 1983)
IN THE MATTER OF THE LAST WILL AND
TESTAMENT OF NAOMI R.
BOURNE, Deceased, JACQUELINE ANN BOURNE, JONATHAN B.
BOURNE, NANCY LEE BOURNE & BARBARA JO BOURNE,
Petitioners-Appellants,
vs.
ESTHER BOTTOM, Personal Representative-Appellee
COURT OF APPEALS OF NEW MEXICO
1983-NMCA-046, 99 N.M. 694, 662 P.2d 1361
APPEAL FROM THE DISTRICT COURT OF LOS
ALAMOS COUNTY, KAUFMAN, Judge
GEORGE F. STEVENS, GREGORY V. PELTON,
ROBINSON, STEVENS & WAINWRIGHT, P.A., Albuquerque, New Mexico, Attorneys
for Appellants.
MICHAEL J. GOLDEN, MOORE & GOLDEN,
P.A., Santa Fe, New Mexico, Attorney for Appellee.
Bivins, J., wrote the opinion. WE CONCUR:
WILLIAM R. HENDLEY, Judge, RAMON LOPEZ, Judge.
{1} Petitioners appeal from
an order dismissing their motion under N.M.R. Civ.P. 60(b), N.M.S.A. 1978 (1980
Repl. Pamph.), and their petition to revoke probate. We affirm.
{2} The petitioners,
Jacqueline Ann Bourne, Jonathan B. Bourne, Nancy Lee Bourne and Barbara Jo
Bourne are the children of Joseph B. Bourne, deceased. On July 8, 1974 Joseph
B. Bourne and his wife, Naomi R. Bourne (Stepmother of petitioners) made
provisions in their respective wills and Joseph B. Bourne's trust, executed
that date, for their estates to pass to petitioners upon the death of both of
them. Joseph predeceased Naomi. Contrary to the arrangement, Naomi executed a
new will on September 5, 1980 leaving her entire estate to Esther Bottom who
was also named as personal representative under the will.
{3} Naomi died on January 24,
1981, and on February 23, 1981, Esther Bottom filed a petition to probate the
September 5, 1980 will. She sent timely notice to petitioners. Only one
petitioner, Jacqueline Bourne, appeared at the hearing, and upon inquiry from
the court as to whether she had any
{*696} questions
or observations to make, she replied that she had none. Naomi's will was thereupon
admitted to probate at the hearing held on March 27, 1981.
{4} Approximately five months
later, on September 2, 1981, petitioners filed their petition to vacate the
order of March 27, 1981 admitting the will to probate. This petition was filed
under Rule 60(b) and alleged fraud, misrepresentation or misconduct on the part
of Esther Bottom, and, in the alternative, mistake, inadvertence or excusable
neglect on the part of petitioners. The claimed defense or objection to
admission of the will was that the signature of Naomi was obtained by undue
influence.
{5} The trial court,
following a hearing on petitioner's Rule 60(b) motion, entered an order on
December 31, 1981 granting petitioners leave to file written objections to the
probate of Naomi R. Bourne's will. Petitioners timely filed their objections
and demanded a jury trial. On February 18, 1982 the trial court advised counsel
for the parties that because of scheduling conflicts it would hear the matter
on written submissions, i.e. affidavits, memoranda of law, etc. The court noted
that it had already heard certain factual matters, apparently referring to the
December, 1981 hearing.
{6} Thereafter, on June 21,
1982, the trial court informed counsel that after reviewing the case and
"having regard to the need to finalize these matters," it concluded
the petitioners had failed to meet the "minimal requirements necessary to
open the matter on the grounds and basis which they have alleged." An
order was entered July 21, 1982 dismissing petitioners' Rule 60(b) motion and
objections to probate of the will. This appeal followed.
{7} As a factual basis for
their Rule 60(b) motion (Petition to Vacate Order Admitting Will to Probate),
petitioners alleged:
1. The Petitioners are the stepchildren of Naomi R. Bourne,
deceased; that at the time they received the Notice of Hearing for formal
probate of their mother's alleged Last Will and Testament, they inquired of
Esther Y. Bottoms, [sic] the person petitioning to admit said Will to probate
and were informed by her after she had first checked with her attorney that it
would not be necessary for them to be present at the hearing scheduled for
March 27, 1981, at which hearing the alleged Will of the decedent was admitted
to probate.
2. That the Petitioners are informed and believe and do
believe that the signature of their stepmother, Naomi R. Bourne, to the Will
admitted to probate in the above cause, was obtained by undue influence.
Because of the actions and advice of Esther Y. Bottoms, [sic] who was appointed
personal representative of the estate, they were led to believe that objections
to the admission to probate of said alleged Will could properly be made after
March 27, 1981.
3. That the Petitioners received legal advice from reputable
members of the New Mexico Bar but were never informed as to any time
limitations for filing objections to the said alleged Will that was admitted to
probate and were led to believe that they had ample time to contest the Will.
4. That the failure of Petitioners to object to the admission
of said alleged Will to probate or to timely appeal the order admitting said
Will was caused by the misrepresentation or misconduct of Esther Y. Bottoms
[sic] and her attorney or the mistake, inadvertence, surprise or excusable
neglect of Petitioners. (Emphasis added).
{8} Section
45-3-413,
N.M.S.A. 1978, provides that an order in a formal testacy proceeding may be
vacated for good cause shown within the time allowed for appeal as set forth in
the Rules Governing Appeals. In civil actions an appeal must be taken within 30
days. N.M.R. Civ.P. 3, N.M.S.A. 1978 (1980 Repl. Pamph.). Petitioners concede
that they did not comply with that requirement, and therefore seek relief under
Rule 60(b). The personal representative argues that Rule 60(b) is not
applicable because the Probate Code provides an exclusive method for modifying
or vacating a formal testacy order.
See §
45-3-412, N.M.S.A. 1978.
{*697} Rule 60(b) is not inconsistent with the
Probate Code under the circumstances of this case.
See Mathieson v. Hubler,
92 N.M. 381,
588 P.2d 1056 (Ct. App. 1978).
{9} In this appeal,
petitioners advance two arguments:
1. After having permitted petitioners to file objections, the
trial court lost jurisdiction under § 39-1-1, N.M.S.A. 1978, and, therefore,
had no authority to change its mind;
2. There was sufficient basis for granting petitioners relief
under Rule 60(b) and no basis for the trial court reversing its December 31,
1981 order.
{10} In support of their
jurisdictional point, petitioners rely on Section 39-1-1, which provides in
pertinent part:
Final judgments and decrees * * * shall remain under
the control of such courts for a period of thirty days after the entry thereof,
and for such further time as may be necessary to enable the court to pass upon
and dispose of any motion which may have been filed within such period,
directed against such judgment * * * provided further, that the provisions of
this section shall not be construed to amend, change, alter or repeal the
provisions of Sections 4227 or 4230, Code 1915. (Emphasis added).
{11} The initial question is
whether the order entered December 31, 1981, allowing petitioner to file
objections is a "final" judgment within the meaning of § 39-1-1. We
hold it is not. In
Jemez Properties, Inc. v. Lucero,
94 N.M. 181,
608
P.2d 157 (Ct. App. 1979), this Court held that an order granting a Rule 60(b)
motion was not itself an appealable order. It is likewise true that an order
which does not grant Rule 60(b) relief, but simply permits movants leave to
file their objections, is not an appealable final order.
See Floyd v.
Towndrow,
48 N.M. 444,
152 P.2d 391 (1944).
{13} Having decided the trial
court had the authority to reconsider the Rule 60(b) motion, did it commit
reversible error in denying that motion by its July 21, 1982 order?
{14} In reviewing the denial
of a Rule 60(b) motion, we are guided by the general principles set forth in
Phelps
Dodge Corp. v. Guerra,
92 N.M. 47,
582 P.2d 819 (1978).
Springer
Corporation v. Herrera,
85 N.M. 201,
510 P.2d 1072 (1973), states:
"Two issues arise on every application to open or vacate a judgment,
namely, the existence of grounds for opening or vacating the judgment, and the
existence of a meritorious defense * * *" 85 N.M. at 203.
{15} In support of their
claim of "mistake, inadvertence, surprise or excusable neglect,"
petitioners submitted the affidavit of Nancy Lee Bourne, which states:
That Nancy Lee Bourne and her brother and sisters contacted
two reputable members of the New Mexico Bar concerning contesting the Will
admitted to probate in the above cause, but were never informed of any time
limitations involved in such a contest and that their failure to contest said
Will on March 27, 1981 was due to mistake, inadvertence, surprise, excusable
neglect * * *.
{16} The depositions reflect
that some of the petitioners contacted an attorney a few days after Naomi's
death regarding a will contest. This attorney reviewed certain papers and
informed petitioners that they did not have a case. Petitioners met with
another attorney on two occasions and received similar advice. The conferences
with these attorneys antedated the March 27, 1981 hearing, and both attorneys
allegedly informed petitioners they did not have to appear. As previously
noted, Jacqueline Bourne did attend the hearing but voiced no objections to the
admission of the September 5, 1980 will to probate.
{17} As to the claim of
fraud, the affidavit of Nancy Lee Bourne alleges:
{*698} That upon
receiving notice of the probate of the Will filed in the above cause Nancy Lee
Bourne and her sisters and brother contacted Esther Y. Bottom who, after
checking with her attorney, informed them that it would not be necessary for
them to do anything with reference to the hearing on said Will scheduled for
March 27, 1981.
{18} Since petitioners
consulted independent counsel, there is little merit in the claim that they
relied on Esther Bottom to advise them about whether they should appear at the
hearing. Moreover, the deposition testimony indicates that petitioners never
informed Esther Bottom that they were contemplating a contest of the will.
{19} The trial court, in its
order of July 21, 1981 found that petitioners, or some of them, sought advice
from at least two attorneys regarding a contest of the will and that such was
done during the time within which they could have moved to revoke probate under
§ 45-3-413. We agree that evidence supports this finding and answers
petitioners' contentions relating to mistake, inadvertence, or excusable
neglect.
See Wooley v. Wicker.
{20} The trial court also
found that petitioners were not misled by Esther Bottom. This finding is
likewise supported by substantial evidence.
{21} Although making no
specific findings of fact as to the lack of a meritorious objection to the
admission of the will to probate, the trial court did make a general finding
that petitioners had failed to present evidence that would permit the court to
entertain their petitions. The deposition testimony of three of the petitioners
failed to disclose any substantive basis for a claim of undue influence.
Petitioners rely upon the short time span between the execution of the will and
Naomi's death, surprise that she would change her will contrary to the
agreement made with their father, and a "moral obligation" not to
change the will.
{22} The setting aside or
vacating of a final judgment or order under Rule 60(b) is within the discretion
of the trial court, and this Court will not disturb the trial court's ruling
absent a showing of abuse of discretion.
Desjardin v. Albuquerque Nat. Bank,
93 N.M. 89,
596 P.2d 858 (1979). We find no abuse of discretion.
{23} We affirm the trial
court's order denying petitioners' Rule 60(b) motion and their petitions to
vacate the order admitting the will to probate and to revoke probate.
WE CONCUR: WILLIAM R. HENDLEY, Judge, RAMON LOPEZ, Judge.