Probate Judge of Chaves County, New Mexico, for Almost Ten Years

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A STUDY OF NEW MEXICO MINOR STATE COURTS by FERINEZ PHELPS, B,A,, LL,B., and M.A.

A DISSERTATION IN GOVERNMENT Submitted to the Graduate Faculty of Texas Tech University in Partial Fulfillment of the Requirements for the Degree of DOCTOR OF PHILOSOPHY S Approved (0 •1 s

August, 1970 ^w-mb PC

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The writer's Interest in the minor state courts in New Mexico is the result of past experience as a member of the New Mexico State Bar Association. In addition, a great deal of helpful experience with the minor courts was gained as Probate Judge of Chaves County, New Mexico, for almost ten years. The League of Women Voters of the State of New Mexico also did a study of the Justice of the Peace Courts while the writer was active in that organization in Roswell, New Mexico, In this manner a valuable foundation was built for an academic study of these judicial institutions, and it is hoped that more study can be done in this area of government in other states.

Although the writer feels fortunate to have had experiences which were helpful in pursuing this study, the work could not have been completed without the consid eration and interest received from each of the committee members, A debt of gratitude is due those members of the faculty who gave so generously of their time and effort in advising the writer and suggesting improvements for this paper, Dr, L, M. Holland, Chairman of the Department

11 of Government and chairman of this committee, especially has devoted many hours counseling the writer and correcting this paper. Members of the committee whose helpful sugges tions also enabled the writer to complete this work are* Dr, J, William Davis, Dr, Frank Baird, Dr, William Johnson, Dr, Gordon Henderson and Dr, John Burnett, Words are inadequate to express appreciation for the aid given by this committee when it was needed the most, F.P.

ill TABLE OF CONTENTS Page PREFACE ii LIST OF TABLES vi Chapter I. AN OVERVIEW OF THE NEW MEXICO COURT SYSTEM , . 1 II, HISTORICAL DEVELOPMENT OF THE JUSTICE OF THE PEACE 9 Background of the Justice of the Peace Court Justices of the Peace in New Mexico Territory Justices of the Peace after Statehood in New Mexico III. LEGISLATIVE INVESTIGATION OF THE NEW MEXICO JUSTICE OF THE PEACE COURT 2? A Case Against the Justice of the Peace Courts Additional Publicity for the Justice of the Peace The Chfiuiges Made IV, ESTABLISHMENT OF THE MAGISTRATE COURTS , . . . 45 Organization and Administration The Background of the Magistrates The Magistrates' Evaluation of the Changes V. HISTORICAL DEVELOPMENT OF THE PROBATE COURTS . 70 The Importance of Probate Courts English Heritage American Heritage New Mexico Probate Courts—Attrition of an Institution

Iv Chapter Page VI. THE ORGANIZATION AND ADMINISTRATION OF THE NEW MEXICO PROBATE COURTS 113 Growth and Change of Procedural and Sub stantive Rules Legal Technicalities Laws of Descent and Distribution Hearings and Notices Final Report and Closing Claims Against the Estate—Allowance and Payment \ Fees I Attorneys and Executors and Accountants Transfer Without Administration and Summary Administration Alienation of Real Property Jurisdiction Over the Person smd Estate of Minor Children VII, EFFORTS AT REFORM AND THE IMPACT UPON THE J PROBATE COURT 153 ^ Q Concurrent Jurisdiction of District Courts * Confusion in Probate Jurisdiction g 1949 Constitutional Amendment m VIII, AN EVALUATION AND SUGGESTIONS FOR REFORM IN "^ THE PROBATE COURT 179 Attitude of the New Mexico Bar and Judiciary Toward the Probate Courts Patterns of Use of the Probate Courts The Uniform Probate Code, Simplification, Possible Methods for Reform IX, SUMMARY AND CONCLUSIONS 23? APPENDIX 253 BIBLIOGRAPHY 268 LIST OF TABLES

Table Page 1, Magistrate's Districts, Divisions, Salary. ... 50 2, Changes Recommended by Court Administrator ... 5^

vi CHAPTER I

AN OVERVIEW OF THE NEW MEXICO COURT SYSTEM

Extensive changes have occurred in the judicial system of New Mexico during the decade of the sixties. In 1959 the legislature created a state judicial study committee which actively promoted judicial reform throughout those ten years,^ This committee successfully sponsored seventy-two new laws and four constitutional amendments which modernized the structure of the judiciary. Salaried magistrates replaced the archaic justice of the peace courts and their notorious fee system. The overcrowded docket of the supreme court was relieved by the establishment of a court of appeals which shares the appellate case load; appellate procedure was greatly 2 facilitated and the efficiency of these courts increased. One of the most beneficial and sweeping changes was made in the financing of the district court system; an annual state appropriation from general funds for the

•^Philip T, Manly, "Survey of the Judicial System of New Mexico," New Mexico Legislative Council Service, Santa Pe, 1969 (Mimeographed.) 2 In 1969 the legislature created the judicial council as a permanent body to replace the committee, A diagram of New Mexico Courts is found in Appendix G, complete operation of the district court system was substituted for the archaic patchwork of state and local finance which dated from territorial days. In addition, the district attorneys' offices are financed now by state appropriations rather than being dependent on the district court for adequate financing. An evaluation of the ten- year period shows that salaries for supreme court, court of appeals and district court judges have all been increased. The conduct of judges may be reviewed by a newly established judicial stsindards commission which can make recommendations to the supreme court, which may in turn order the "discipline, removal or retirement of amy justice, judge or magistrate,"3 The administrative office of the courts was originally created in 1959* and each legislative session has added to the responsibilities of the office. Today the court administrator is "in a position to maintain communications which can eventually lead to a fully unified system of courts for the state."'*' The only constitutional court which was unaffected by the major changes was the probate court. The foremost opponent of the abolition of these courts was a prominent

3Manly, "Survey," p, 1,

^Ibid. senator from the Fifth Judicial District. Quantitative analysis reveals that all the probate courts in that judicial district are used extensively, in contrast with other judicial districts in the state. According to the counsel for the New Mexico Legislative Council Service, that judicial district Just makes the system work.5 in all other judicial districts the probate court is used less in one or more counties than is the district court which has had concurrent jurisdiction in probate matters since 1914-1. In one county there have been no probate cases filed in the probate coTirt in more than three years, and in another there have been only three.7 in one-half of the thirty-two coimties more than twenty per cent of the probate cases arising in the last two years have been filed in district coiirt, and in eight counties more cases were filed in the district courts than in the probate courts.^

^Interview with Philip T. Manly, Attorney for the Legislative Coimcil Service, March 19, 1970. New Mexico, Statutes Annotated (1953) sees, I6-I4.-IO and 30-2-21^.. •^This information has been gathered through writ ten questionnaires directed to probate clerks and district court clerks, personal investigation of the records in some counties, interviews with county clerks, and research in the Office of the Administrator of the Courts in New Mexico. See Appendix A, ®Ibid. u

Although it is not a court of record like the probate court, the magistrate court succeeded to the functions of the better known justice of the peace. The magistrates are subject to the oversight of the court administrator, who also serves as the collection agent I'or penalty assessments, which formerly accounted for a sub stantial amount of the worK performed by the justice of the peace.

The dingle magistrate court established by the 1968 legislature has 3? branches, 6? magistrates, and 10 clerical assistants to replace the 191 justices of the peace courts. Each of the magistrates was designated by "district" and by "division" where there were more than one magistrate in each district. The salaries established for che magistrates and the allocation of clerical assis tants were determined on the oasis of the case load statistics of the outgoing Justices of the peace and with the further consiaeration of the penalty assessment system schedule which became operational concurrently with une 9 magi s trate court, Tixe jurisdiction of the New Mexico magistrate courts in civil matters is limited to matters involving sums of not more than ];500,00; an exception is made in

9 Edward T. Johnson, "I969 Annual Report of the Director of the Administrative Office of the courts," Santa Fe, I969, p. 36. (Lithographed.) 5

Bernalillo County where the maximum valuetion is $2,000.00. Jurisdiction in criminal matters is limited to offenses, the maximum punishment for which is imprisonment for six months, or less, or where the fine may be $100.00, or less, "and over certain misdemeanors where specific jurisdiction is granted by law."^o New Mexico has one small claims court which serves Bernalillo County, the only county which qualifies under the minimum population requirement for the establishment of such a court. The court is similar to the magistrate court in that county. The differences are: the criminal jurisdiction of the small claims court is limited to preliminary examinations in felony cases and violations of county ordinances; the financing of the court is through the county; the salary of the small claims judge is $8,000.00 per year and that of the magistrate in the county $11+,000.00, while the terra of office for the || former is two years snd the latter four years; the small claims court is a court of record while the magistrate is not; there is no provision for a jury trial in small claims, but there is such a provision for magistrate court.-^-^

lOsecre^ary of State of New Mexico, New Mexico Blue Book. 1969-70. p. 56. •^•^ Johns on, "1969 Annual Report," pp. 55-57. The jurisdiction of municipal courts includes all violations of ordinances of the municipality; the judge may issue subpoenas and warrants and punish for contempt and may impose penalties which do not exceed ninety days imprisonment or a fine of $300.00. The term of office of a municipal judge is two years, except in Albuquerque where the term is four years. The number of terms which can be served are not limited. The salary of the judge is determined by the municipality and financed from municipal funds. The magistrates in Hobbs and Las Vegas also serve as municipal judges of those cities.

"Quasi-judicial" functions are vested in the administrative agencies which adjudicate questions arising under the administrative rules and orders of each agency. The 1969 legislature enacted a comprehensive Administrative Procedures Act which provides for adminis trative hearings and rule-making, but the "act restricts its own application to those agencies specifically placed by law under the Admiriiatrative Procedures Act." No agency has been placed under its coverage.^2 Military courts are created for the trial of mem bers of the New Mexico national guard for offenses committed when the guard is not in the federal service. These courts

^^Manly, "Survey," p. Il4.. may issue warrants and subpoenas and may impose a sentence of a fine up to a thousand dollars and confinement in the state penitentiary up to ninety years. Such sentences may be reviewed by the courtmartial convening authority and appealed to the adjutant general and to the governor. The scope of this study is a detailed analysis of the two inferior state courts, probate and magistrate, their role and function in the judicial system of New Mexico. Analysis will be made of the judges who perform these functions, their political background and their training for the position. The magistrate court has been in operation for only a year, so it is too early to measure the opinions of others on the performance of these judges. However, opinions of those dealing with the probate court have been sought and will be analyzed in this studyo Since the two courts discussed have different origins and paths of development, they are discussed separately. The development of the justice of the peace court is covered in the second chapter. In the third chapter attention is directed to the investigations which resulted in a public demand for changes in the justice courts. The present organization and administration of the magistrates court is the subject of the fourth 8 chapter. In the remaining chapters attention is focused on the probate court because it is the court in New Mexico which is subject to much criticism and which will probably be changed in the near future. It is also the court which is the least visible and the least subject to investiga tion because the cases which come before it are of such a technical nature. An analysis will be made of the organization and administration of the probate court. To clarify the kind of duties which face a probate judge, a detailed study is made of the kinds of problems arising in pro bate cases. The Uniform Probate Code, adopted by the American Bar Association in 1969, is investigated because the New Mexico Ba.r Association plans to recommend its adoption by the next session of the legislature. On the basis of the research done in conjunction with this study, possible changes and approaches to change will be suggested. The findings of this study should be helpful in future research of minor courts in other states. CHAPTER II

HISTORICAL DEVELOPMENT OF rHS JUSTICE OF THE PEACE

Backgroimd of the Justice of the peace Court The Justice of the Peace Act of I36I is celebrated as the origin of the justice court, but it had been grad ually developing in England and can be traced back at least to 1195."^ In 132? Edward III enacted the Keepers of the Peace legislation, but the act of I36I designated the persons who would be appointed to that position and defined the authority they should have: "one lord and with him three or four of the most worthy in the county with some learned in the law" to keep the peace, make 2 arrests and to hear cases involving felonies and trespass. The development of the law of the justices* courts "appears to have its basis in the gradual expansion of the concept of the "king's peace" which resulted from the centraliza tion of national authority,-^ Nevertheless, the central government seemed to be hesitant to confer extensive powers

H. H. Maudsley and J, W. Davies, "The Justices of the Peace in England," University of Miami Law Review, XVIII (Spring, 1964) p.^JW. ^Ibid,, p. 319. -^"The Justice of the Peace in Virginia 1 a gejl^Pjed.Aspect of the Judiciary," Virginia Law Review, 9 10 on these courts. The commissions issued by the king in 1364 and 1368 excluded the power to determine felonies and to administer labor laws, but in I368 those powers were restored. As old communal institutions died out, greater administrative powers were given to the justices: "'the remarkable thing was that so much government could be carried on through the forms of a criminal trial,'" The Tudor monarchs seemed anxious to control every detail of their subjects* lives, and the comprehensive scheme for accomplishing their goal was the justice of the peace. Among the duties assigned those officials were the conservation of highways and other public works, including fortifications, employment regulations for apprentices, ser vants and labourers, unlawful hunting and games, tippling in the alehouses, eating flesh at Lent, tile-making, selling of horses and harnesses by soldiers, possession of Papist symbols, , , , price control of candles and earthenware, fuel, malt, corn and other commodities, plague-infested houses, pheasants and partridges, spawn of fish, watermen, claims to stolen horses, logwood, examinations in claims against the hundred for robbery, sedi tious meetings, regulations concerning sheriffs and bailiffs taking plaints in the county court, and, of course, the perennial rogues, vagabonds and sturdy beggars,-^

\audsley and Davies, "The Justices," pp. 519- 520, citing Dawson, A History of Lay Judges 140 (i960), ^Ibid., p. 522, citing Allen, The Queen's Peace 139-40 (1953). 11

The justices of the peace also assessed taxes and managed county expenditures. The old local officials became subject to the justices, who often held the power to make appointments to local offices,^ The important powers of supervision of the parish system included the onerous duties of administering the Poor Law under which every parish had the responsibility of caring for its own poor, "By an amending act of 1601, an appeal from the overseer to the justice was provided, and the whole sys tem was placed under the justices' absolute control,"^ In 1834 the Poor Law Act took this administration out of the hands of the justices of the peace; this date marks the turn toward divesting the justices of admini strative duties. Most of the remaining administrative powers were transferred to local councils by 1888." The justice of the peace in England has always been an unpaid official, appointed by the king and subject to dismissal by him; he usually owned enough

John A. Fairlle and Charles Mayard Kneier, County Government and Administration (New York: The Century Co,, 1930) p, 6, ^Maudsley and Davies, "The Justices," p, 522. Qlbid.. p. 524. 12

property to be responsible but not so much that he could escape punishment. The office carried sufficient honor and prestige that the best available men would seek it.^ Justices are still nominally appointed by the crown, but in practice appointment is by the Lord Chancellor who acts on the advice of advisory committees created for each county or borough. Tie appointment is for life, but the services rendered are entirely gratutous. Since the justices are untrained in the law, competent legal advice is furnished. The key figure in this court is the clerk who is an attorney and who "prepares the papers," arranges the dates for trial, sits in court below the bench, and is responsible for advising the justices on procedure and the law."10

There is a provision for "stipendiary" or paid magistrates for boroughs or counties which desire them. Less than fifty of these have been established in England; so the assumption can be made that the boroughs and counties have not felt it necessary to hire professionals to perform this function.^

Q Alderfer, Harold F., American Local Government and Administration (New York: The Macmillan Company, T^6) p. 56. •'•^audsley and Davies, "The Justices," p. 534- l^Ibid., p. 560. 13

The office of the justice of the peace was an English institution adapted to local conditions in the development of local government in the United States. As in England, these officials seldom have legal training, but in the Iftiited States they also seldom have the advan tage of trained legal advice. The result has been the administration of "homespun justice. "-^^ The jurisdiction of the justice court has been restricted by statutory and constitutional provisions but includes both criminal and civil matters. The maximum monetary sum subject to the jurisdiction of the justice court varies from state to state, but it is ccanmonly less than five hundred dollars. Actions in that court may be based on torts but usually are for breach of express or implied contracts: "actions seeking to collect unpaid bills or rents, or to secure judgment on promissory notes."^3 The criminal jurisdiction over misdemeanors includes those punishable "by small fines or short prison terms such as breaches of the peace, traffic violations or disregard of the health ordinances."1^ Magistrates are empowered to issue warrants, and they act as committing magistrates in

•^^Clyde F. Snider, American State and Local Govern ment (New York: Appleton-Crofts, Inc., 195^7 p. 271.

"•-^Ibid., p. 270.

^Cullen B. Gosnell and Lynwood M. Holland, State and Local Government in the United States (New York: K^ntice-Hall, Inc., T?5rrp. 355* 14

holding preliminary hearings to determine whether or not the evidence against a suspect is sufficient to justify the binding over of the accused when a serious crime is involved. Formal accusations are brought before a grand jury or are made on the information filed by the district attorney. Critics agree that an office such as the justice of the peace, established in the American colonies when laws were simple and sufficient for a rural society, has weaknesses which should be corrected. "For one thing, it is clear that our present-day law, with its manifold technicalities, cannot be properly administered by laymen."15 An even more serious deficiency lies in the fact that few of these judicial officers are compensated by fixed salaries. The use of the fee system to pay the justices of the peace "has led to corruption and the lowering of the standards of the justices."16 It is necessary for a justice to attract business to his court if he is to receive any income, and any wise plaintiff will bring his action in the court which will be most disposed to render judgment in his favor.

l^Snider, Americein State and Local Government, p. 271. l^Gosnell and Hollsund, State and Local Government, p. 356. 15

In criminal matters the amount of compensation which is allowed the Justice may be considerably greater if the decision is against the defendant in the case. These provisions have reamined in many states, including New Mexico until I968, in spite of the 1927 judgment of the United States Supreme Court in the case of Tumey v, Ohio 17 in which it was held that no man can judge a case in which he has a pecuniary interest. A rule or principle that a judge, who has a financial interest in the outcome of a case, is not quali fied to hear the case should control in situations involving the compensation of a judge on the fee system. It is highly unlikely that an official who receives a greater compensa tion for making a ruling in favor of one party to an action rather than another can avoid having his opinion colored by these circumstances. The general principle, therefore, must bar any method of compensation for judges based on any system contingent on a particular outcome of the case, including the fee system. It will be seen that compensation on the basis of fees has been an integral part of the justice of the peace court in New Mexico since territorial days.

^^273 U,s. 510 (1927). 16

Justices of the Peace in New Mexico Europeans came to New Mexico before there was an English settlement on the east coast, and, "prior to the American occupation New Mexico had spent over two centuries as a ragged and unkempt province on the extreme periphery of the Spanish empire, , ," After the Mexican Revolution from Spain, this part of the country spent the next "twenty- five years as a poverty-stricken and unheeced outer area of Mexico."^^ Under Spanish rule the territory had been under the jurisdiction of a governor who appointed alcaldes mayores for each of the districts and alcaldes tenientes for each of the settlements. The alcaldes had many and varied functions in the government, "As an early document mani fests, his larger role was that of overseer of the lives, actions, and customs of the inhabitants of his jurisdiction whatever their condition or station,"-^^ Although the Recopilacion indicates that the term of the alcalde was to be for three years,20 th e practice in New Mexico was to

18 Thomas C, Donnelly, The Government of New Mexico (Albuquerque J The University of New Mexico Press, 1947) p, 1, 19 Marc Simmons, Spanish Government in New Mexico (Albuquerque: The University of New Mexico Press, I968) P. 170, 20 Recopilacion de Leyes is the official codifica tion of Spanish and MexTcan Laws, 17 extend the term for life. Qualifications for the alcaldes mayores included being "honorable men of ability and capable of reading and writing."^^ Since only the most rudimentary educational system existed, even the literacy requirements made it difficult to find different persons who could perform the function of alcalde; therefore, removals were rare.*" Under Mexican rule the Territory of New Mexico was divided into districts, which in turn were divided into partidos or counties. Each district was headed by a prefect who was appointed by the governor. The governor also appointed the local officials who governed the settle ments within the counties. The local alcaldes were officials "who were under the thumb of the prefect,"^3 The period of Mexican rule saw little internal improvement or citizen support, and General Stephen W. Kearney met with little resistance when he auid his army invaded New Mexico in 1846, A temporary Government was established under the army which lasted until I851. It differed little from the Mexican government since the military governor appointed the prefects in each county and the alcaldes

^^Recopilacion. cited by Simmons, Spanish Govern ment, p, VFTT ^^Ibid., pp. 171-72. ^•^Donnelly, Government. p. 1. 16

in each settlement. For three centuries the alcaldes had been vested with the powers of local government, exercising legisla tive and executive, as well as judicial authority. Even when cabildos, town councils, were established in larger communities, they exercised little power. The Kearney Code only changed the partidos to counties and officially vested administrative and judicial powers in the judlciary-- circuit courts, prefects and alcaldes. The governor of the territory was given authority to appoint not more than four alcaldes in each county. The term of office was two years, but there was no prohi bition against reappointment. The jurisdiction of the alcaldes was spelled out in the code: Every alcalde shall have jurisdiction over the following actions: First, all actions founded upon bonds or other contracts, when the balance due or damages claimed, exclusive of interest, shall not exceed ninety dollars; second, all actions of trespass and of trespasses on the case for injuries to persons, or real or personal property, when the damages claimed shall not ex ceed fifty dollars; third, to take auditor, judg ment or confession, where the amount confessed shall not exceed one hundred dollars, but no alcalde shall have jurisdiction of any action against any executor or administrator, of any action of slander, malicious prosecution, or false imprisonment, nor of any action in which the title to lands or tenements shall come in question,^!

^•^Kearney Code, "Courts and Judicial Powers," sec. 24, Statutes (1953). 19

In order for the alcalde to exercise these powers he was given authority to issue summons and subpoenas. If either party demanded it, the alcalde was required to summon a jury of six persons to try the case. However, two sections of the code provided penalties for assault and for unlawful assembly and then gave the alcalde jurisdiction to punish these offenses in a summary 22 manner. Alcaldes were given power to hold hearings in contests of the results of elections for the territorial legislature; the testimony vias then certified to the 23 speaker of the house in which the seat was contested. -^ In the Kearney Code are found the original provisions for the remuneration for the duties of the alcalde on the basis of the fee system. Specific amounts which might be charged by an alcalde were established for the following instruments and acts: summons, subpoenas, attachment, judgment, execution, administration of oaths, order for jury, acknowledgements, certifications, writs °^ habeas corpus, depositions, swearing of the jury, and the taking of recognizance bonds. The amounts

^^Kearney Code, "Crime and Punishment," sees. 8, 10 and 11. ^3Kearney Code, "Courts and Judicial Powers," sees. 30 and 36. 20 specified vary from twenty-five cents for many of the services to a dollar and fifty cents for a writ of haoeas corpus.^'?^4 The legislature spelled out additional qualifica tions and duties of the office. That no person shall be elected a justice of the peace or alcalde, who is not a citizen of the United States, and who shall not have been a resident of this Territory, at least twelve months, and of the coimty in which he shall reside, at least six months, next before his election.

That the jurisdiction of the justices of the peace or alcaldes, shall be co-extens:ve with the limits of the county in which they shall be elected. Provided, that every justice of the peace, or alcalde, shall reside and hold his office in the precinct for which he may be elected,^ The legislature widened the jurisdiction of the justices of the peace (alcaldes) to criminal cases tliroughout the county to which he was elected, and where he resided; they were also made conservators of the 26 peace. Anyone dissatisfied with the decision in the justice of the peace court could either appeal the

^^IMd., sec, 7. 25 New Mexico, Revised Statutes of the Territory (Davenport, I85O) sees. 21 and 23. ^'^Ibid, , sec. 23. 21 decision to the prefect or to the circuit court. Appeals shall be allowed from judgments of alcaldes when the debt or damages do not exceed I5O.OO, to the prefect, in all other cases to the circuit court, in the seune manner, and subject to the same restrictions as in all cases appealed from the circuit court to the supreme court; provided that an appeal must be taken from the judgment of an alcalde within ten days of the rendition of the judgment. ' At each term of prefect court the alcalde was required to make an accounting to the prefect or all fines imposed by him for the use of the county, "stating the name of the officer who has or ought to have collected the same, which he shall certify and deliver to the clerk 28 of the prefect, who shall charge them accordingly." Justices of the peace also shared with the prefects the interesting function of aiding parents, grandparents and guardians in the discipline of any disobedient 29 Children. ^ The county governmental system concentrating many powers in the judicial officers continued until I876 when the statute established the county commissioners as the agency for the administration of county government.

27 Kearney Code, "Courts and Judicial Powers," sec. 43, ?8 New Mexico, Revised Statutes and Laws of the Territory, c, 21, sees, m- and 18 (186577" "ibid., sees. 23 and 24. 22

For the first twenty-five years of the territory, control of coxmty government was centralized in the probate judge. In addition to hi^ duties as a judicial officer he exercised supervision over the justices of the peace, superintended the build ing and maintenance of county roads, appointed the county treasurer, and did the work of assessment of property. The clerk of the probate judge, whom the judge appointed, acted as the clerk of the county. The many duties of the probate judge made him in effect the administrative head of the county government until 1876.30 One authority on New Mexico government considered the abolition of the old Spanish prefect system of county government and the inauguration of the present system of Boards of County Commissioners a substantial improvement in government.31

Justices of the Peace After Statehood The constitution of the State of New Mexico vested judicial powers in the Senate sitting as a court of impeachment, the supreme coxirt, the district courts, probate courts, juvenile courts, justice of the peace courts and such inferior courts as the legislature might establish. Justice of the peace was the petty tribunal for the administration of justice in criminal and civil matters when the sums of money involved was limited and when the criminal offense carried a very

30 Donnelly, Government, pp. 19-20. 3lArie W. Poldervaart, Black-Robed Justice (Santa Pe: Historical Society of New Mexico, 1958) p. 121;. 23 limited punishment. Justices of the peace were elected for two-year terms, and there was no limitation on the number of terms which could be served. The jurisdiction of the justice court was extended to the county lines, but each justice was required to live within his pre cinct unless there was a town of .^ore than two thousand people in the precinct from which he was elected. In that event, he could live in any precinct within the city limits of the town.32

Jurisdiction of the justice of the peace courts included those actions on debt or for damages in which the judgment sought was no greater than two hundred dollars, exclusive of interest and costs. Criminal jurisdiction was limited to misdemeanors where the punishment prescribed was not greater than a fine of one hundred dollars or imprisonment for more than six months, "The justices [were] also authorized to perform certain miscellaneous duties such as issuing warrants for arrests, holding preliminary examinations of accused persons, administering oaths and affidavits, and performing marriages."33 Judgments rendered by the justice court could be appealed to the district court where the action was

32New Mexico, Statutes Annotated, sec. 36-2-8 (1953). ^^Donnelly, Government, p, 252. 24 tried anew. The cases appealed were often dismissed because "the district attorney, . . quite often found that the justice of the peace [had] erred in accepting jurisdiction. • . and in other cases witnesses and defendants have disappeared. . • ,"34 The executive officer for the justice of the peace was an elected constable whose term was the same as the justice and who was also compensated by the fee system.35 Remuneration by the fee system was considered one of the most undesirable features of the justice courts. Unlike the English system, the rewards of the office did not include prestige, and, therefore, there was not a custom of secxiring the best qualified persons. Most of the justices are poor men and they operate their courts under the compulsion of having to make at least part of their living from the fees they receive for hearing cases. In criminal cases, the law provides that a justice shall receive no fee for hearing such cases unless the defendant is found guilty. The justice therefore has a financial interest in the decision and the luckless defendant would,seem to have the cards stacked against him.3o

3^Ibid., p. 252. 3^Ibid.

^^Ibid., p. 253-5U. 2S

In 191^1 the legislature enacted laws which required that both litigants in a civil action agree upon the justice in the county who would hear their case. Prior to that time, the attorney for the defend ant could choose the court of any justice in the county. "This often resulted, it was felt, in the favored justice rendering judgment for the plaintiff, for he was indebted to him for the fees he obtained as a result of the case being brought in his court."37

No justices of the peace were required to have legal training, and some were "scarcely literate." Hearings in the courts were informal, and housing for the court was often inadequate. In the rural areas the front room of an adobe residence often served as the court room, and even in the towns and cities the scene of the trial is usually located in an unpretentious building in a low-rent district. It is no wonder, therefore, that citizens who are haled into justice courts often leave them with a very bad impression.3o Quite often justices of the peace failed to account to the county treasurer for fines and forfeitures. Although they were required by law to turn these over to the county treasurer, it was believed that they

^"^Ibid., p. 254- ^^Ibid. 26 often retained these, as well as the fees to vrhich they were entitled.-^^ The accounting system was improved in 1937 when the legislature required that the justices account for all fees within fifteen days of their collec tion. However, little real reform was effected until investigations were made by a legislative copimittee which was first appointed in 1958, The committee vras able to use the testimony of the justices themselves, as well as that of lavr enforcement officials, to establish the need for many changes in the justice courts.

39ibid,, pp. 254-55. CHAPTER III

LEGISLATIVE INVESTIGATION OP THE NEW MEXICO JUSTICE OP THE PEACE

A Oase Against the Justice of the Peace Cotirts Dissatisfaction with the New Mexico justice of the peace courts prompted an extensive investigation by the State Judicial System Study Committee in 1959 and I960. Excerpts from the testimony of witnesses were compiled in a report to the twenty-fifth legislature of New Mexico.1 Most of the judges who were called before the committee gave testimony which evidenced their own dissatisfaction with the justice of the peace courts. One justice indicated that he knew that many of the justices of the peace were not qualified and concluded: "They can't even sign their name and can't read or write."2 Although there was evidence of antagonism toward persons "who come out of fancy universities with high academic degrees,"3 generally the witnesses felt that the worst feature of the justice of the peace

The State Judicial System Study Committee: How ^he Courts in New Mexico Work, Sen. Fabian Chaves, Jr., Chairman TSanta Pe: Rydal Press, 1961). ^Ibid.. p. 1.

-^Ibid.. p. 2. 27 28 system was the ignorance of the justices who neither knew, nor wanted to learn, how to follow the statutes. Some admitted their own lack of qualifications: "'You know, I was ignorant when I went in. . . and I'm still that way.'*'^ The kindest comment the justices made about themselves placed the blame on the system and not on the individual: the system was antiquated, but it was just as good as the men behind the desks. The report of the State Judicial System Study Committee included evidence that the administration of the justice of the peace courts was often deplorable and sometimes ludicrous. Judges did not have the necessary professional tools (statutes and legal reference books), did not conduct a courtroom with decorum, did not often have legal advice and often lacked a sense of fair play. Court might be held in a cafe booth, a chicken house, a coal mine, a bar, or kitchen; one judge had a "floating" courtroom wherever a policeman or sheriff thought most convenient for the headquarters of the sheriff or police. Very often the testimony of the justices would lend credence to the old criticism that "JP" really stands for judgment for the plaintiff when they admitted to

^Ibid., p. 3. 29 never dismissing a single case or to never having found a defendant not guilty. Some justices used the office for collection agencies; others found the contemptuous attitude of members of the bar a difficult indignity. "I try to command all the dignity in the court I can but a lot of time I am treated very grossly by attorneys."^ Testimony concerning the relationship between the justices of the peace and the police was in itself enough to build an overwhelming case against the system. One justice of the peace made a plea for help in stating that the courts should be entirely free from the police rather than completely dependent on them for the "business" they received. Testimony from a police chief supports the evidence of illegal conduct between the justices of the peace and the police: "It is difficult to show that a justice of the peace is paying back to an officer but we have means."" And a businessman testified that the chief of police in his community admitted that he was "taking a pay-ofl."''' Among the most common practices was that of giving gifts by the

Îbid., p. ll\.. Îbid.. p. 17. "Îbid. 30 justices to the police officers; these included cash, cigarettes, candy and checks for money. There was considerable testimony by the justices showing that they did not know the law and had no intention of abiding by the law in handling matters before them—that the system varied from the incompetent to the ridiculous and was weak at all points. The inadequacies included lack of legal advice, a refusal to abide by the law requiring reports of cases and monies collected, and the admission that it would be simple for a judge "to put it (the money) in his pocket" if a receipt were not given. Other practices were cited which enabled a judge to keep a portion of the fees. In connection with another practice, a member of the committee cited "the gimmick where they (the JPs) slip a couple of pieces of paper under the carbon in the receipt book and the original receipt shows where a person is fined $15.00 and pays $5.00 costs, and they (the JPs) give the person the top receipt and underneath they (the JPs) change it to $5.00 and $5.00."

And so it goes. JPs who make no reports; who do not docket their cases; who advertise for busi ness; who take tips; who are deputy sheriffs; and who have clerical help set the times for hearings and perfomi other judicial functions."

Qlbid., p. 38. ^Ibid., pp. 39, ill. 31

Other witnesses gave evidence supporting the admissions of the justices of the peace: And then there were the bondsmen who, for a fat fee, work closely with the JPs. And then there are the JPs who turn fines from state police citations over to municipalities.!^ The explanation of one justice excusing his wrong doing was that he resumed the payments "in order to try to get the (municipal) patrolman working a little for us."!! Testimony from attorneys general, district judges and a traffic safety administrator were unanimous in appraising the justice of the peace courts as unsatis factory. The courts on the Navajo Reservation, in which the judge serves a probationary period of two years before a permanent appointment is made, were considered models from which the State of New Mexico could profit. After presenting its bleak picture of the justice of the peace courts in New Mexico, the committee concluded: Most JP courts in New Mexico are operated ineptly, incompetently, and inefficiently. On more than a few occasions, they are operated contrary to the law.

It is small wonder that the legislature acted on this evidence and made major changes in this court of limited jurisdiction.

Ibid., p. i|l. !!lbid. l^lbid., p. 1+3. 32 Additional publicity for the Justice of the peace Court The justice of the peace court received consider able publicity in 1964. The improvements made in the justice of the peace courts were featured by the news media. It was reported that the system was getting a new look and that the justice of the peace court represented justice for the many. There had been extensive efforts to remove the smudge on the court and its label as a "kangaroo court," The court administrator said: "The most dramatic improvement in the administration of justice in New Mexico has been the renovation of the JP system, , , [which] is hardly recognizable as that which existed five years ago, "-^3

The most important changes, resulting from the enactment of laws which transferred fiscal control from the counties to the state, also required attendance by the 4 14 justices at training schools twice yearly. Under the new arrangement all fines and fees are sent to the court administrator's office, , , [which] remits $5 to each justice for each case handled—whether the defendant is found guilty or innocent, (The JP collected $7.50 in costs from those found builty. The state remits .^5 and keeps i^2,50 for the fund from which costs

13 Albuquerque Journal, February 22, 1964, p, A-1, 1•^^Ibid4 , 33

for innocent parties come.) If there are discrepancies, refunds are held up until the reports are corrected.1^ The fee system still remained the biggest basic objection to the justice of the peace court. A system which sometimes allowed a justice of the peace to earn more than the statutes allowed a district judge or a supreme court judge was considered inequitable, and there was still evidence that pressure existed for the justice of the peace to make rulings against defendants. Yet there is still pressure which might tend to CJ color a justice's impression of the facts. A » state policeman, cognizant of his "performance rating," is not going to continue taking arrests jlj to a JP who consistently--or even frequently-- a finds them innocent. And as long as JP's are C: paid by the number of cases they handle, there g will always be grounds for the suspicion, merited g or not, that some cases may be cited simply for •< the citing.!^ Prominent personsl7 indicated that there should be changes in the system but also pointed out that recognizing the need for change and making that change were two very different problems. The common response was simply to do away with the justice court. "But

^^Ibid. ^^Ibid., p. A-5. 'Those quoted were Governor Jack M. Campbell and State Senator Fabian Chavez. 3k you can't do away with it until you find something that will do the job better. . ."1^ In June, 1961^., two patrolmen were suspended by the state police chief for unauthorized handling of money. Both had been suspended at an earlier date on the same charge. The officers had allowed motorists to post bond in a different county from that in which they had been cited. This was clearly against the law, which required that the defendant appear before a judge in the county in which he was cited. According to the -I attorney general, "Apparently what was testified to here fSt was that there was a general consent among the justices -i o of the peace for the JP in the next county to accept bond for them."!*^ The problem arose because of the fact that a JP did not have state-wide jurisdiction. The reason given for the illegal practice was that it was an inconvenience for motorists to have to drive many miles back to appear before the justice in the county where the citation was issued. The incident led to a further investigation of

1 o Journal, p. A-5, quoting State Senator Fabian Chavez, Chairman of the Judicial Study Committee. !^Ibid., June 3, 196k, p. 2. 35 the state police by the Judicial Studies Committee. The chairman of that committee recommended the abolish ment of the fee system and the establishment of state wide traffic courts; the attorney for the patrolmen concurred. Santa Fe Atty. Fred M, Standley and Sen, Fabian Chavez, D-Santa Fe, Tuesday called for the abolishment of the fee system for the Justices of the Peace and the creation of traffic courts with statewide jurisdiction. The committee recognized that the financing of traffic courts by the state would not in itself cure the problems of police administration. In December, 1964, the Legislature Judicial Study Committee unanimously proposed a constitutional amendment which would abolish the justice of the peace courts and establish a court of limited jurisdiction modeled after the Colorado plan. This would include abolishing the fee system and gearing salaries to the case load handled by the justice of the peace. Judicial Study Committee members said the Colorado plan would be adapted to New Mexico if the legislature submits the major constitu tional change to voters and electors approve. Implementing statutes wouldpbe required to put the new system into effect.

2°ibid. Journal, December 5t 1964, p. 1. 36 At the same time the study committee made its recommendation, a permanent court study organization, known as the Citizens Conference of New Mexico Courts, was established.22 f^j^g importance of citizen support is evidenced by the large majority of voters who approved the constitutional amendment abolishing the justice of the peace courts.

The Changes Made Since the justice of the peace court was established by the constitution, a constitutional amendment was required to bring about its demise. Court reform amend ments to the constitution were approved by the voters in 1965 and in the 1966 general election: The judicial power of the state shall be vested in the senate when sitting as a court of impeachment, a supreme court, a court of appeals, district courts, probate courts, magistrate courts, and such other courts inferior to the district courts as may be established by law from time to time in any district, county or municipality of the state.^-^ A new section was added as an amendment to the consti tution, which provided that the justice of the peace court

^^Ibid. ^3New Mexico, Constitution, art. VI, sec. 1. The 1965 amendment had added the provision for a court of appeals while the 1966 amendment had provided for the magistrate courts and eliminated a constitutional provision for a iuvenile court. The vote in 1965 was 31,582 for and 18,1^.77 against and in 1966 8l,055 for and 26,317 against. 37 would be abolished "not later than five years from the effective date of the amendment, and magistrate courts vested with appropriate jurisdiction."^^ The original constitution had provided for the election of the justice of the peace, police magistrates and constables, and it also had prohibited the exercise of jurisdiction over matters in which title to real estate and boundaries of land might be disputed or in any controversy where the debt claimed was more than $200.00. The only inflexible provision written into the new amendment concerning the magistrate courts was the i^ n 3: prohibition against the reduction of salary during the ^ term of office of any magistrate. The powers, terras of ^ office, and jurisdiction were made subject to legisla tive prerogative. The legislature shall establish a magistrate court to exercise limited, original jurisdic tion as may be provided by law. The magistrate court shall be composed of such districts and elective magistrates as may be provided by law. Magistrates shall be qualified electors of, and reside in, their respective districts, and the legislature shall prescribe other qualifications. The magistrates shall receive compensation as may be provided by law, which compensation shall not be diminished during their term of office.--'

^'^ibid. ^^Ibid., sec. 26. This amendment was approved in the 1966 general election by a vote of 81,055 to 16,317. 38

Although there is a marked similarity between the magistrate court and the old justice of the peace court which it replaced, some of the worst features have been corrected: the legislature has fixed (and may change) the jurisdiction of the court; the remuneration for the judge is now determined by statute; and there are minimum educational requirements. The geographical jurisdiction of the magistrate is coextensive with the magistrate district which he serves, except that a magistrate may hear any criminal action involving any motor vehicle violation which ^: \i. occurred in any magistrate district "adjoining at any -i n point that in which he serves and within magistrate trial * •»* jurisdiction unless the defendsint requests trial by ,^ it; jury."^° Besides jurisdiction in all cases of misdemean- *^ ors where the punishment prescribed by law is a fine of a hundred dollars or less, or imprisonment for six months or less or for both such limited fine and imprisonment penalties, the magistrate has the following powers: any other criminal action where jurisdiction is granted by law; to hold preliminary examinations in any criminal action authorized by law; and "to commit to jail.

^°New Mexico, Statutes Annotated, sec. 36-3-6 (1953). 39 discharge or recognize the defendant to appear before the court as provided by law. , ."if the criminal ac tion is beyond the jurisdiction of the magistrate court. '^ In addition to his authority to administer oaths and to perform marriage ceremonies, the magistrate has civil jurisdiction in actions for debt when the amount claimed is not greater than five hundred dollars. The limitation is two thousand dollars in magistrate districts which have a population of more than a hundred thousand persons. Limitations are spelled out on the type of civil actions which may be heard. Contracts, quasi-contracts, and torts are specifically included, but excluded are actions for malicious prosecution, libel, slander, specific perform ance of contracts to sell real property; actions involving title or boundaries of land; actions involving domestic relations (divorce, annulments, child custody, guardian ship, adoption or dependency of children); granting of injunctions, habeas corpus or extraordinary writs; and any action in which jurisdiction has been granted exclusively to another court.

Where there were 193 justices of the peace serv ing when the office expired in 1968, the legislature

^7ibid,. sec. 36-3-5. ^^Ibid., sec. 36-3-3. ko

concluded that sixty-seven magistrates would be ample to conduct the business of that court.^'^ Thirty-two magistrate districts were established--one in each county. If there is provision for more than one magistrate in each district, the offices are designated by divisions which sit in the communities specified by the statute. If there are two or more divisions operating as a single court, "the director of the administrative office of the courts shall designate the magistrate of one of the divisions as presiding magistrate. . . ,"30 The qualification requirements for justice of the peace included only the follovfing: having legal 2 g residence in the State of Nev; Mexico; being a qualified elector; and filing an oath of office, a certification of election or appointment, and a five thousand dollar corporate surety bond. It will be noted later that more stringent requirements should be made for the present magistrate court, but those now specified by statute are

29 Since the statutes had provided for the election of a justice of the peace in each of the precincts in a county, prior to the amendments, it would have been possible to have elected almost six hundred of these officials. Philip T. Manly, "Survey of the Judicial System in New Mexico," New Mexico Legislative Council Service, Santa Pe, 1967. (Mimeographed.) New Mexico, Statutes, sec. 36-1-37. Ill considerably greater than those which had been required of the justice of the peace. ... No person is eligible for election or appointment to the office of magistrate unless he has graduated from high school or has attained the equivalent of a high school education as indicated by the possession of a certificate of equivalency issued by the state department of public education based upon the record made on the general educational development test. In magistrate districts with a population of more than one hundred thousand persons in the last federal decennial census, no person is eligible for election or appointment to the office of magistrate unless he is a member of the bar of this state and licensed to practice law in this state, but he shall not engage in the private practice of law during his tenure in office.31

The statutes further require any apparently ;;| o successful candidate for the office of magistrate, who r. *• m M« f•« 4• has not previously held a certificate showing his qualifi cations, to attend a qualification training program conducted by the administrative office of the courts. The purpose is to inform the magistrates of their judicial powers and duties. A further requirement is that the magistrate display his certificate of magistrate qualifi cations in a conspicuous place in his courtroom. If

11 Ibj^., sec. 36-2-1. The exception applies only to Bernalillo County. No other county has a population of much more than fifty thousand. Secretary of State, New Mexico Blue Book, 1969-1970 (Santa Fe, 1970). 42 these and other routine requirements are not met within forty-five days, the administrative office of the courts "shall certify the existence of a vacancy to the governor. t»3-^4 As a requirement for continuing in office, each magistrate must attend at least one training program each year unless he is excused in writing by the chief

justice of the supreme court. The excuse can only be given for good cause. If any magistrate fails to obey this mandate, he will be considered to have resigned his office, and the administrative office of the court will certify the existence of a vacancy to the governor.33 S General supervision and control of the magistrate courts is given by statute to the administrative office of the courts, which is required to promulgate rules and regulations for the administration of those courts.

Any magistrate who fails to abide by those rules and regulations is guilty of a misdemeanor.3'^ The director of the administrative office of the courts has the duty to suspend the certificate of any magistrate who violates any rules and regulations. Any offending magistrate

^^Xy4«> sec. j6~2-3.

-^^ibid., sec. J6-2-I4..

3^Ibid., sec. 36-I-I. k3 may petition the District Court at Santa Fe for a review of the director's decision. If the magistrate fails to do so within thirty days or if the district court's decision is against the magistrate, the director may certify a vacancy to the governor.37 The statutes prescribe monthly reports which the magistrate must file showing the fines, forfeitures and costs imposed, received and disbursed by each office; all income to the magistrate courts is paid to the administrative office of the courts once a month. Each magistrate is further required to establish a trust g account for the deposit of all funds received by him, and he is forbidden to comiTiingle those public funds with any of his own funds. Violation of this latter provision 2 do can subject him to a fine of a thousand dollars or imprisonment for a year, which would, of course, operate as an automatic removal from office; in addition, he would be disqualified from holding any public office for a period of four years.38 The evidence of laxness revealed by the investi gation of the justice of the peace court resulted in the passage of legislation carefully spelling out the reports

3'^Ibid.. sec. 36-9-2. ^^Ibid., sec. 36-9-5. hk which must be made and the manner in which public funds must be handled. This legislation also carried out the constitutional amendment of 1966, which established the duties of the judiciary with respect to all monies collected by that department. All fees collected by the judicial department shall be paid into the state treasury as may be provided by law, and no justice, judge or magi strate of any court shall retain any fees as compensation or otherwise.39 i

^\'ew Mexico, Constitution, art. VI, sec. 30. CHAPTER IV

ESTABLISHMENT OP THE MAGISTRATE COURTS

Orp,anization and Administration It was noted in the last chapter that there is much similarity in the jurisdiction of the magistrate and the justice of the peace courts, but many changes were required by the constitutional amendments and the acts of enabling legislation. A potential of almost six ^| ^; hundred courts and the existing one hundred and ninety- '^' n•1, one courts were eliminated. These were replaced by g sixty-seven magistrate courts subject to the rules and 3 regulations established by the administrative office of ^ the courts. If there had been no agency like the adminis trative office of the courts, which could organize and plan for this change, one would have had to have been created. The reports of the court administrator indicate the diversity and extent of the requirements for effecting the changes in the justice courts when the magistrates assumed that function. Although the court did not become operational until January 1, 1969, plans had to be made and promulgated to qualify the elected magistrates; provide them with adequate quarters, in public

45 46

buildings where practicable and otherwire by rental of private property; procure office equipment, furniture, and furnishings as needed to meet at least minimum requirements; procure adequate supplies of court forms as prescribed by the statutes, and by the rules of pleading, practice and procedure for the magistrate courts as prescribed by the Supreme Court; and establish forms, regulations, and procedures for reports to be submitted by the magistrate to the administra=- tive office and for the requisitioning of supplies. The court administrator had the duty of estab lishing a preliminary orientation program for the benefit of all magistrates but particularly to inform those who had neither education nor experience to equip them for their positions. It was also necessary to establish a program for "the orderly and timely closing out of the justice of the peace court records and the transfer of g o the pending cases to the magistrate court," These duties C9 naturally placed the greatest demands on the administra- ^i tive office of the courts.

The duty of the court administrator, with respect to the defunct justice of the peace court, "was to estab lish and implement such regulations as were deemed necess- 3 ary to prevent loss to the state." Of course, each

Edward T, Johnson, "I968 Annual Report of the Director of the Administrative Office of the Courts," Santa Fe, I968, pp, 7-8. (Lithographed.)

^Ibid., p. 8. ^Ibid., p, 6, 47 justice was responsible for his own administration and expense, but the administrative office prepared and furn ished forms to all the offices. As has been indicated, the responsibility of the administrative office of the court with respect to the magistrate court is much larger than it had been with respect to the justice court. In addition to establishing regulations and supervising magistrates,4 the administrative office has a duty to "provide facilities for each magistrate court," The administrative office also employs clerks and assistants for magistrates, "within appropriations and budgetary 2a.} 6 (^1 limitations."

^In "Courts of New Mexico" the administrative g office of the courts points out that section 13, article S VI of the Constitution gives the district court appellate "^ jurisdiction of "all cases originating in inferior courts and tribunals in their respective districts, and super visory control over the same," Although it was not clear whether the "same" referred back to cases or the lower courts, the administrator indicated that district courts had limited their concern with inferior courts to the normal appellate process. Since the legislature gave supervision and control over the administration of magistrate courts to the administrative office of the courts, that office would be establishing an entirely new program for those courts, %ew Mexico, Statutes Annotated, sec, 36-9-9 (1953). Counties and municipalities are required by the statute to cooperate wherever possible in establishing the office for the magistrates, ^Ibid,, sec. 36-9-10. 48

When the magistrate court replaced the justice of the peace court on the first of January, I969, the five judges in Bernalillo County were all members of the New Mexico Bar as required by statute. Four of the magistrates in the remaining thirty-one counties were members of the Bar and six more had college degrees. Three of the twenty-eight who had graduated from high school had some additional college training. Twenty-one of the magistrates qualified for their positions by ob taining a certificate of equivalency after passing the examination administered by the department of public education. Prior experience as justice of the peace had been available to thirty-two of the magistrates; and 2 7 C all of those with that experience were non-lawyers,' Dr The administrative office of the courts suggested .^ appropriate guidelines in the determination of the number of magistrates, location of courts, salaries and cleri cal assistants. Knowledge of and experience with the case loads of the justices of the peace indicated a need for six categories in the establishment of magistrate court districts and the divisions within the districts:

^Edward T. Johnson, "Courts of New Mexico," Administrative Office of the Courts, Santa Fe, I967. (Mimeographed,) 49

(1) single or multiple courts where the case load is 1500 or more a year for each magistrate and the judge is required to be a member of the Bar (applicable only to counties with a population of 100,000 or more); (2) all other magistrate courts where the case load is I5OO or more and the judge is not required to be a member of the Bar (applicable to counties with a population of less than 100,000); (3) single or multiple magistrate courts where the case load is between 1000 and 1^1-99; (4) single and multiple magistrate courts where the case load is between 500 and 1000; (5) single and multiple magistrate courts where the caseload. )s between 120 and 500; and (6) magis- 8 "^ trate courts where the case load is less than 120. f^ 3: The legislature established divisions of the IC magistrate districts and salaries of the judges based S 9 on these six categories 1

8 Edward T. Johnson, "I969 Annual Report of the Director of the Administrp^iv^ Office of the Courts," Santa Fe, I968, pp. 38-9. (Lithographed.) 9 New Mexico, Statutes, sec, 36-1-3^'. This reflects the I969 amendment which added Divisions No. 2 In San Miguel County and No, 3 in Santa Fe County, 50

TABLE 1

Magistrate District Division Salary Bernalillo 1 $14,000 Bernalillo 2 14,000 Bernalillo 3 14,000 Bernalillo 4 14,000 Bernalillo 5 14,000 Catron 1 2,000 Catron 2 2,000 Chaves 1 8,000 Chaves 2 8,000 Chaves 3 2,000 Colfax 1 4,000 Colfax 2 4,000 Curry 1 8,000 Curry 2 8,000 DeBaca 4,000 Dona Ana 1 10,000 Dona Ana 2 10,000 Dona Ana 3 8,000 Eddy 1 10,000 s Eddy 2 8,000 Grant 1 8,000 Grant 2 8,000 :«i; Guadalupe 1 4,000 Guadalupe 2 4,000 Harding 2,000 Hidalgo 4,000 Lea 1 8,000 Lea 2 10,000 Lea 3 2,000 Lea 4 2,000 Lea 5 2,000 Lincoln 1 4,000 Lincoln 2 4,000 Lincoln 3 6,000 Los Alamos 4,000 Luna 6,000 McKinley 1 10,000 McKinley 2 10,000 Mora 2,000 Otero 1 8,000 Otero 2 8,000 Otero 3 4,000 51 TABLE 1—Continued

Magistrate District Division Salary Quay 1 ^ 8.000 Quay 2 2,000 Rio Arriba 1 4,000 Rio Arriba 2 8,000 Roosevelt 8,000 Sandoval 1 4,000 Sandoval 2 2,000 San Juan 1 8,000 San Juan 2 10,000 San Miguel 1 8,000 San Miguel 2 4,000 Santa Fe 1 8,U00 Santa Fe 2 8,000 Santa Fe 3 2,000 Sierra 4,000 Socorro 6,000 Taos 1 6,000 Taos 2 2,000 Taos 3 2.000 Torrance 1 2,000 Torrance 2 2,000 ;;; Union 4,000 n Valencia 1 4,000 a: Valencia 2 8,000 Valencia 3 8,000 I

The salary of all the Judges is based on the case load expected in each division of the court and the qualifi cations required for each judge: (1) $14,000 when the case load is above I5OO and when the judge must be an attorney; (2) $10,000 when the case loan is I5OO but the judge does not have to be an attorney to qualify for the position; (3) $8,000 when the case load is less than I5OO but more than 1000 per year; (4) $6,000 when the case load is less than 1000 but more than 5OO per year; (5) #^,000 when the S2 case load is less than 500 but more than 120; (6) $2,000 when the case load is less than 120. Although at first glance it might appear wasteful to provide a magistrate where the case load is 120 per year or less, the administrative office of the courts points out that "the state has an obligation to provide magistrate services to the public as adequately as possible within the economics of available funding." The office concludes that to eliminate those courts would result in a hardship on those persons who use them. Familiarity with the open spaces in New Mexico, where few people live, & V lends credence to this conclusion.!^ Two of the courts listed in the foregoing schedule were added by the legislature in 1969. One of them was the second division in San Miguel County. The salary established by the legislature for that division was $14.,000, but the case load for that court was only 131 for the year. The case load for all of San Miguel County was less than a thousand, and the court administrator recommends that the second division be eliminated. The other division added was number three in Santa Pe County

•^^The one magistrate court in Harding County falls into the last category; that county has a population of 1500 people, less than half its population twenty years ago, Secretary of State of New Mexico, New Mexico Blue Book. 1969-1970. Santa Pe, 1970. S3 which had a case load of 500 but which was given a salary of only $2,000. The administrative office of the courts recommended that the salary for that division be raised to reflect the proper salary category. The 1969 report of the court administrator suggested the elimination of Division No. 2 in Curry County, Division No. 3 in Taos County, Division No. 2 in San Miguel County, and the third one of the five divisions in Lea County, The suggestion for Curry County was based on the fact that the case load showed that the work per magistrate was less than 1,000 per year; thus the elimination of one gr office would raise the category of the remaining magi strate court and should result in attracting the best i candidates. The recommendation for eliminating the 5} other four divisions is a logical one in view of the fact that the records of the administrative office of the courts show a very small case load for them and that other magistrate courts are available in those counties.H Other recommendations of the administrative office of the courts included: salary increases for thirteen magistrates to reflect the ten per cent increase in the cost of living since the establishment of the magistrate courts; salary reductions in six divisions which showed

•^•''Ibid., "1969 Report of Administrative Office," p. 50. J'J 4 a smaller case load than had been contemplated by the

1968 legislature; and that the salary rejrain the same in the last category of courts since the small workload could not justify an Increase. The case load, clerical help, salary and recomraended changes in the court are reflected in Table 2 which follows. The figures in the table are taken from the 1969 Annual Report of the

Administrative Office of the Courts, pages 55 through

59, inclusive.

TABLE 2

CHANGES RECOMMENDED 3'f COURT AUIIIN iSTRATOR i

District Current !^ecomiTi ended I

Division No. Annual Cler Gate- Cler Salary Location Case ical Salary gory ical as of Load Help Melp 1/1/71

BERNALILLO 1 Albuquerque ;^L57)^^ 1 4;ii|-,ooo I 1 $15,^00 2 " ^157) 1 14,000 1 1 \^,k^o 3 2157) 1 ll4.,000 I 1 i5,l.}-00 4 2157) 1 14,000 t 1 15,'400 5 2157) 1 14,000 I 1 i5,-'i00 CATRON 1 Reserve 100 2,000 VT 2,000 2 Datil 53 2,000 VI 2,000 CHAVES 1 Roswell 91+0)-::- 1 8,000 III 1 8,800 2 Roswell 1J493) 8,000 irr 8,800 3 Hagerman 168 2,000 V 1|,.'400

"•) Parentheses indicate the make-up of multiple magistrate courts as fixed by current statuto. m

TABLE 2—Continued

District Current Recoiran ended

Division No. Annual Cler Cate Cler Salary Location Case ical Salary ical as of gory Load Help Help 1/1/71

COLFAX 1 Raton 386 l|,000 V l4.,l;00 2 Springer 336 14,000 V [^,14.00

CURRY 1 Clevis 10[j.0)-K- 1 8,000 11 1 11,000 2 Glovis 665) 8,000 Eli-^- inate DE BACA Fort Sumner 191 i|, 000 V [|.,Uoo DONA ANA s- 1 Las Cruces 3193)-"- 1 10,000 II 1 11,000 2 Las Cruces 1831|) 10,000 CI 1 11,000 3 Anthony 917 8,000 IV 6,600

EDDY 8,800 1 Carlsbad 1311 1 10,000 III 1 8,800 2 Artesia IOI4-3 8,000 III

GRANT 1 Silver City 1073 8,000 in 8,800 2 Bayard Q3k 8,000 TV 6,600 GUADALUPE 1 Santa Rosa 886 [|.,000 IV 6,600 /|,)4 00 2 Vaughn 1468 lj.,000 V HARDING Roy 21 2,000 VT 2,000

HIDALGO Lordsburg 955 k, 000 TV 6,600

•:0 Parentheses indicate the make-up of multiole magistrnte courts as fixed by current statute.

•MiiRli 56

TABLE 2—Continued

District Current Recommended

Division No. Annual Cler Gate- J^^^- ^^^^7 Location Case ical Salary ical as of Load Help S°^y Help 1/1/71

LEA 1 Lovington 1067 8,000 III 8,800 2 Hobbs 1757 10,000 II l-"-"- 11,000 3 Jal 117 2,000 Eliminaoe ij. Tatum 375 2,000 V i^-Aoo 5 Eunice 571^- 2,000 IV 6,600 LINCOLN 1 Carrizozo 1-1-07 l4.,000 V l+,'+00 2 Capitan 227 ii.,000 V [}-,l+00 6,000 V if-AOO 3 Ruidoso khl LOS ALAMOS Los Alamos 110 i|.,000 VI 2,000 s

LUl^A Deming 651 6,000 IV 6,600 McKINLEY 1 Gallup 1753 )-JJ- 10,000 IX 1 11,000 2 Gallup 1753) 10,000 II 1 11,000 MORA Mora 163 2,000 V 14,14.00

OTERO 1 Alamogordo 1080)- 8,000 II[ 1 8,800 2 Alamogordo 1035) 8,000 lit 8,800 3 Oro Grande 187 1],000 V L|.,14-00

•JWAt the present time the magistrate is also a municipal judge, and the city furnishes him with a courtroom, office and a clerk. If this situation changes, the incumbent who is not also a municipal judp,e will definitely need a clerk,

••0 Parentheses indicate the make-up of multiple magistrate courts as fixed by current statute. •->***j^ 1^ 51 TABLE 2—Continued

District Current Recommended

Division No. Annual Cler- Cat^- ^'1®^- Salary Location Case ical Salary '^ ical as of Load Help ^^^^ Help 1/1/71

QUAY 1 Tucumcari 996 8,000 IV 6,600 6,600 2 San Jon 968 2,000 IV RIO ARRIBA 1 T. A, [4,000 V l4.,l4.00 2 Espanola 13 66 8,000 HE 8,800 ROOSEVELT Portales 913 8,000 IV 6,600 SANDOVAL [).,l4.00 1 Bernalillo I4-6I4 [4,000 V 2,000 2,000 2 Cuba 116 VI SAN JUAN S' 1 Aztec 1868 8,000 II 1 11,000 10,000 1 11,000 2 Parmington 1938 II SAN MIGUEL 1 Las Vegas C. 8l9 8,000 IV 6,600 14,000 2 Las Vegas T, 131 PIT im- inate SANTA PE 1 Santa Pe 1327)-'^ 8,000 III 1 8,800 2 Santa Pe 1327) 8,000 III 1 8,800 3 Riverside 500 2,000 IV 6,600 SIERM T or C 377 [4,000 V [4,14.00 SOCORRO Socorro 596 6,000 IV 6,600

^^) Parentheses indicate the make-up of multiple magistrate courts as fixed by current statute. 58

TABLE 2—Continued —W^WMW^——>*—1*-—'»• •

District Current Recommended

Division No. Annual Cler- Gate- Oler- Salary Location Case ical Salary Lr^-r^Z ical as of Load Help ^'^ ^ Help 1/1/71

TAOS 1 Taos 918 6,000 IV 6,600 2 Questa 201 2,000 V kfk'^^0 3 Tres Piedras l6 2,000 Elim inate TORRANCE 1 Estancia 230 2,000 V k*kO^ 2 Moriarty 21k 2,000 V 4,1-1-00 UlUON pi Clayton 1143 [4,000 V ktk^^^ VALENCIA s 1 Los Lunas 391 [4,000 V kfkOO 2 Belen 588 8,000 IV 6,600 3 Grants 1357 8,000 III 1 8,800 $[|.l8,ObO $i4^6,606 [418,000 Total increase recommended in magistrate salaries $ 38,600 Salaries (according to approved schedules) for the six additional clerks recoimnended ,,,, 26,720 Salary cost if all recommendations are approved 65,32(? Plus employee benefits 6,532 Total cost of all recommendations set out above ,, ,., ••,,,$ 71,852 39

The number of clerical assistants needed are also related to the workload. Originally there were thirteen clerks employed by the administrative office of the court to aid in the paper work of the magistrates. Five of these were assigned to the five magistrates in Bernalillo County; others were furnished to districts with one or more magistrates in the second category, with the exception of Lea County, and to the four counties with at least two magistrates in the third category—Chaves, Curry, Otero and Santa Fe,^ In order that the purely judicial functions of the court would not suffer, additional cleri-

cal help was recommended when the paper work of a court j;;; reached 1250 cases or more. On the basis of the foregoing 3: statistics, the recommendation would result in the hiring m* of six additional clerks for those courts which had case loads bordering on 1250 or when there was only one clerk for a multiple district in which the case load averaged 1250 or more per judge. 1-^ The statutes do not reveal that the legislature had made any changes in response to these suggestions. The fact that the cost of maintaining the magistrate court would increase by $71,852 may have had a deterring effect in bringing about the changes.1^

l^Ibid. 13lbid. l^Ibid., p. S2. bO

The Background of the Magistrates Survey questionnaires were sent to all magistrate judges in the State of New Mexico.-^^ The questions were designed to elicit facts about their political background, their training, and their opinions of the office as compared with the old justice of the peace system. Of the thirty-four who responded, all except three had been elected; twenty-nine are running for re-election in the 1970 general election. The principal reasons given by those who are not running for re-election are that the judge is retiring or is moving to another state. i There was little political opposition to the incum- fl' s bent judges either in the primary or in the coming general ^ election. Only three of those running for re-election had 13 U2 opposition in the primary and only six in the general election. The meager political opposition may be related positively to the long experience in politics which the magistrates indicate they have. (Pew people are willing to run against a political candidate who is reputed to be a winner always.) The experience varies from two to fifty years. More than one-half of the respondents have had more than twenty years of active party experience, and only one has had less than ten. One third of the

'See Appendix G. 61 respondents have had past political experience in an elective office. Among the elective positions the judges have held prior to becoming magistrates are the followingj state representative, two years; tax assessor, eight years; school board member, twelve years; city council, four years; probate judge, four years; city commissioner, four years; and constable, eight years. Two have been sheriff for four years each. One-third of those respond ing have had prior experience in either the position of municipal judge or as a justice of the peace, and the length of time of the experience varies from four to ••f thirty-two years. The average number of years of exper ience is twelve. g Two-thirds of those responding indicate that P their office hours are at least seven or eight hours a ^ day for five days a week, and many state they are on call for twenty-four hours a day. The ages of the magistrates vary from thirty-one to seventy-three; the average age is fifty-seven. Only two are less than forty years old and three more than seventy. The education of the judges is at least that of a high school graduate as required by the statute. Three of those responding had obtained the G.E.D., or graduate equivalency diploma awarded those, who do not have a high school diploma, but who can pass the examina- 62 tion given by the Department of Education of the State of New Mexico. Six others indicate they have had some college training. Five have had some "professional training" but are not attorneys. Two of the attorneys who responded were from counties other than Bernalillo (in which the statutory requirement for qualification as magistratate is admission to the Bar). When asked why they decided to run for this posi tion, many judges spoke of a desire to serve the public. A state official asked me to run for election in 1959, and I have continued to ser^e, due to my interest in the administration of justice, ••i I could see the need for an impartial magistrate 51 in our area, *-

I wanted to serve this county in this position, t^.* Lack of qualified people in this office. One attorney wrote that he ran for the office because he tried to improve the court system. Others gave responses which showed they were looking at the practical aspects of holding the position of magi strate judge. One of the magistrates said it was a position where experience was needed and was a position in which he could do some good and still make a living. Another wanted a part-time job; it seemed that the magi strate job would be interesting and give him a chance to learn more about the laws of the state, so he accepted 63 the appointment. Responses included simple statements, such as the fact that there was a vacancy, and the respond ent needed a job, or that the salary was good, or that he

"had been justice of the peace and wanted to continue in office," One magistrate, who qualified with a G,E,D,, said it was something he could do:

I am a paraplegic and have few options. Being judge is a job I can do. My wife and I reared two children, both getting college educations, . Yet we never asked for any kind of outside help.

An attorney who serves as magistrate said that it is a job which he can do with his physical handicap.

The duties are more compatible with my age and 2» physical condition because of the removal of my voice box. SI Other judges looked upon the office as a kind % of opportunity. One had been asked to be a write-in ^' 3 candidate; another said he had always been interested in law and government and that the job gave him the opportun ity of learning more. One of the attorneys sought the job to defeat the candidate backed by deeply entrenched political interests:

There is a strong political family that seems to control political offices, and I was fight ing them (I was the only Democrat elected in 1968).

The judge's questionnaire indicated his keen interest in doing a good job and that he had a strong feeling of empathy for the people who came before his court. 6/i

The youngest magistrate who responded made his decision because he felt it was a stepping stone to run ning for the position of district judge, for which he is now a candidate.

The Magistrates' Evaluation of the Chani^es The magistrates were almost unanimous in their approval of the present system as compared with the justice of the peace courts. In general they considered it far superior, "100^ better than the J.P. court." The following comment suimnarizes the reaction of most of the magistrates: Much better, since our income does not depend fr on the number of cases there is less bias, and ^'• we can upgrade the court. f^ cS Some of the respondents were not as favorably ^^ M impressed with the new court. One of the attorneys, who * S is a magistrate, felt that a great deal could have been done by the legislature but was not. Another judge said that the only difference is that the salary is paid by the state, and another that the workload is greater but the salary the same. The comment which best summarizes the dissatisfaction of some of the judges concerned the inequitable salary arrangement which exists for some of the magistrates. Same. A magistrate is a Justice of the Peace with the gravy cleaned from his shirt. The pay system is inadequate. Last year--New Mexico's first year having ma^^istrates—the "part-time" magistrates wage pei* case varied from $2.10 to $125.00. *^-...

(,S

The magistrate judges have reached definite conclusions about the office and most make positive comments about their favorable impressions. Minor suggestions were made concerning changes vhich might improve the operation of the court. I believe that a traffic bureau should be set up with clerks accepting no-contest pleas and waiver of hearing, with mand"tory appearance on accident or other hazardous violations. It needs secretarial assistance. The paper work is far too heavy for good administration.

I need clerical help and a probation division. The majority opinion could be summed up by the m comment that the new coijirt has created a much more favor- 2 able attitude among the citizens and has placed the g magistrate in a more dignified position, ^ The most common source of dissatisfaction was failure of the police to help enforce the laws, whether in the giving of their testimony at trial or in the serving of warrants when violators failed to pay the penalty assessment. There is room for improvement but it is a step in the right direction. One bad thing--state police are too demanding. They try to be diplo matic about it. For example, they will give a person a citation for drunk and driving and reckless driving. Then in open court they will plea for the defendant and ask the court to dismiss the case. This serves two purposes: One, gets them in good with the public, and second, they don't dismiss the D.W.I, themselves; the court is the goat. They have done their job well. I could *^^m

go on and ^n with similar situations, and this to me is the greatest stumbling block for the magistrate. The state police who are charged with patrolling the highways and ticketing the violators have no boss looking over their shoulders. They may patrol the highways an hour or two, or they may not even go out of their homes. Who is to ever know? Who is to ever report them? Now state patrolmen--all policemen--are only human. This moment I have lying on my desk twenty seven war- ants to be served by the state patrolman upon persons who promised to but never did mail in their penalty assessments. I got these tickets last week. Myself and my secretary made up all the complaints and warrants. No one came for them. I called and told the patrolman's wife yesterday to tell her husband all the warrants were ready. It is afternoon Wednesday now and he has never picked them up, I wager they will 5» be here all this week. And I wager at least half of them will never be found.

The respondent, who gave the comment quoted above, felt that the magistrate system was not an improvement over the old justice of the peace court and that the remuneration based on the number of cases heard was more equitable. In addition, he felt that the penalty assessment procedure was contributing to more dangerous driving on the highways, in part because the offender knew that there would be no publicity of the penalty assessment. But look at our deaths-on-the-hlghway exper ience! Last year--our TTrst year with the "penalty assesamenL'^-our highway deaths were highest in history! Yesterday I noticed we are running 33--as of yesterday--above last year's!!! Why? i

Several of the respondents mentioned personal qualifications required of any judge in this minor court. It was thought that the lower courts had a golden oppor tunity to serve the masses of the "little people" ' who can ill afford a lawyer and who come to the local judge for advice, sympathy and guidance. We are, almost daily, called upon to listen to domestic quarrels and offer advice. In our non- Catholic environment people come to us as their Father Confessor to cry out their troubles upon our shoulders. We should always have the time to give to these poor, friendless, "little" people. There are so many of them, so very many, and they are so alone in the world with 5j all the modern day troubles and frustrations that g| are so incomprehensible (to them). And these ^-^ millions need help so badly. Of course, one must ^ have a great love of people because one is never g paid for the hours spent listening to and comis- ^ crating with these confused, troubled people. S Another magistrate expressed the same feeling .^ in fewer words when he said that the holder of the office should be compassionate, be a Christian, speak Spanish, have a fair education, know office pro cedure and above all be able to understand and solve the problems of the people who come to his office. One of the respondents was the only justice of the peace that worked with the New Mexico State Judicial Study Committee to secure the abolishment of the fee system. He expressed the opinion that the

'Term used by the respondent to refer to those who seek counsel and advice from the magistrates; the people are apparently too poor to pay for professional advice. oS

judge must be a person of absolute integrity, that he must have a strong sense of fairness and must adjudicate every case with absolute honesty and impartiality. Legislated law confers considerable authority upon us, but we must perform our duties with a true sense of humility, because we are merely servants of the people. Several magistrates, both lawyer and non-lawyer, felt the magistrate court could be further upgraded by requiring that the office be held by attorneys and by raising the jurisdiction of the court. One non-lawyer thought a law degree would be an asset; another said ^r that in a few years the magistrate position in New tr.\ a Mexico would be filled by young lawyers. This would o be the best that could happen for both the law and the ">* judicial system according to the respondent. X' One of the judges, who is a lawyer-magistrate (outside of Bernalillo County), said the legislature should "redo the whole works." Others felt that the piece-meal approach had been adopted when the changes were made originally and that the continuation of this approach would facilitate the changes needed. One respondent said that in order to establish the magi strate court it was necessary, politically, to retain many of the rules of the justice of the peace court and that legislation proposed for the next term of the legislature will correct the defects. He inferred that

^Mlf^'y^ '> •.,

one of the defects was that Bernalillo County was the only county in which it is required that magistrates be members of the Bar. Other changes which are being considered by the Legislative Study Committee include giving the court in Bernalillo County jurisdiction over all criminal misdemeanors and raising the civil juris diction for that court to a maximum of $5,000. Other helpful changes would include making the magistrate court a court of record and allowing any appeal to the district court to be made on the record rather than SI requiring that the case be tried de novo on appeal. 2[ i i

•i^i:*" y^ CHAPTER V

HISTORICAL DEVELOPMENT OF THE PROBATE COURTS The Importance of Probate Courts The improvement of criminal and ordinary civil administration has been the center of public attention for many years. Another body of civil law, which touches more people and is of unlimited monetary importance, has received little attention. It is concerned primarily with the administration of the estates of deceased persons and ^i minor children in the various probate courts. While J^l civil and criminal litigation is probably less apt to 3 touch the affairs of the average person than are probate ^^ proceedings, comparatively little has been said or written ^ •< looking toward improvement in the administration of estates under the supervision of probate courts. This is certainly not because our probate law and its administration are generally satisfactory. Except in a very few states where the situation is reasonably good, no one can deny that the settlement of decedents* estates involves too much delay, expense and uncertainty. The public's consciousness of this general situation is shown by frequent cases involving ill-advised attempts to avoid official administration by extralegal or illegal means. Our inactivity in meeting the problem is due largely to the lack of lay pressure to remedy the situation, and this in turn is because of the burdens of a faulty system usually fall on individuals who are receiving gratuities from decedents, and for the additional

70 71 reason that the evils do not have spectacular manifestations as for instance, in the field of criminal law.l Few persons who are familiar with the various state court organizations, particularly the jurisdiction of the probate court, would argue with the statement of a fsunous authority made over thirty years ago. Although efforts have been made to improve the administration of probate courts in several states, and the American Bar Association has adopted one model code in 19^6 and a uniform code in 1969, only a few states have made major changes in the past quarter of a century. n* Few people realize that in the administration '^•' s of decedents' estates and the supervision of the estates g of minor children, probate courts are concerned with w matters which often have a very high financial value. .^ Furthermore, the knowledge and experience needed to under stand the complexities of probate practice can only be gained after intensive study and training. The very complexity of the questions which are the concern of the probate courts have undoubtedly contributed to the per sistent obscurity of that court. This obscurity has in turn hampered the efforts to improve the administration.

iThomas Edgar Atkinson, "Organization of Probate Courts and Qualifications of Probate Judges," Journal of the American Judicature Society, XXIII (October, 1939) P. 9T.

..*'•• / X 7? procedure, and personnel in this area of the judicial syster. Needless to say, there are certain vested interests which inhibit any attempts at change.^ In some jurisdictions, such as New Mexico, the powers and functions of the probate court have atrophied, as other officials have assumed the plenary powers form erly given to the person who performed the function of probate Judge. The early records in Europe and in the United States concerned the functions often assigned to a Judge of probate; the records primarily concern the proving of wills and the establishment of the proper per- -i sons to succeed to the property of a decedent. The offlc- g! *j lal who acts as probate Judge often has been given the {? a: power to settle other personal matters, involving marital t: relations, divorce, adoption, control over Juveniles and Sr the hearing of minor criminal and civil matters. The probate court might be the forum for the arbitration of day-to-day difficulties, such as the discipline of children in the Spanish colonial and early territorial period of New Mexico history. Where the court has been kept as an important part of the Judicial system, Jurisdiction over marriage,divorce, and Juveniles continues to be assigned to it.

2 Richard V. Wellman, "Selected Aspects of the Uniform Probate Code," Real Property, Probate and Trust Journal. Ill, No. 3f p.""2^,

,#" /" ->•- V--

73 Early in the history of New Mexico, the probate court exercised Judicial and administrative functions, and the final supervisory authority in the counties rested in that court. Certain definitions are given in the note below, so the use of technical terminology will clarify, rather than confuse, the explanations which ensue,-^

^k will is a testament, and through the years, in different Jurisdictions, wills have been effective whether in writing, attested to by witnesses or not, holographic (entirely in the decedent's handwriting) or nuncupative (oral). The person making a will is a testator, if a man, and a testatrix, if a woman, and a probate of a will is a proof of its validity in the •«.( proper forum. If no will is left, the Individual dies 2? intestate. One who manages the estate of a deceased ^' person is a "personal representative," sind the follow- ^ Ing distinctions are madet The person designated in S the will to administer the estate is an executor, but ^ the person selected by the court to administer an estate, .--* whether the decedent died testate or intestate, is an ^\ administrator, .V: "If the decedent died testate, but for some reason it is necessary for the court to appoint an administrator, he is called the administrator with the will annexed (or executor), or the administrator cum testamento annexe, or the administrator, c, t, a, "If It necessary to appoint an administrator to complete the administration after the estate has been partially administered by another administrator or by an executor, this administrator is called the administrator de bonis non, or the administrator d. b, n, "Sometimes an administrator is appointed for a special purpose or for a limited time. For example, he may be appointed to have charge of the estate pending a will contest, or pending a contest over the appointment of the executor. Or he may be summarily appointed pending the appointment of a general administrator. Such an administrator is called a special administrator," Lewis M, Simes and William F. Fratcher, Cases and Materials on the Law of Fiduciary Administration (Chicagei Calla- gHan & Company, 1956) p. 8?,

/ =x 7k The term "probate courts" is generally meant to in clude ail judicial tribunals which exercise Jurisdiction over the probate of wills and the administration of estates of deceased persons. They are "otherwise variously des ignated as surrogate courts, orphans' courts, prerogative courts, or ordinary and county courts, , , But regardless of its name, the tribunal which exercises jurisdiction over the probate of wills or the administration of deced ents' estates, from its initiation to the time of final distribution" is within the scope of this study. The function and role of tnat court in New Mexico is of spe cific concern in this research. i An appropriate legal definition for a Court of S a: Probate in American law is a court which has Jurisdiction !C; ^ of the "probate of wills and the regulation of the ^ management and settlement of decedents" estates, as well as a more or less extensive control of the estate of minors,*^ and others subject to the protection of the court. In addition, in some states, the court has a limited jurisdiction In civil and criminal matters. Probate may also be defined as the general name

Yewis M, Simes and Paul E. Basye, Problems l_n Probate Law (Chlcagoi Callaghan & Company, 19^6) p. J83, ^Bouvler's Law Dictionary and Concise Encyclopedia, 3rd rev,, 2d ed,, Vol, I, 191^, P. 712. ^WF ' ...... y^-'^'-

7'? or term used to Include all matters of which probate courts now have Jurisdiction, The probate Jurisdiction is described as the "exercise of the orglnary, generally understood power of a probate court, which Includes the establishment of wills, settlement of decedents' estates, supervision of guardianship of Infants, control of their 6 property, , ," Anglo-American law is contrasted with Roman and civil systems in that Judicial proceedings are the normal procedure in the former but not the latter, "According to the theory of the classical Roman law, the heir was ^i the universal successor of the decedent. He was a contin- g; uatlon of the legal personality of his ancestor, , ,"' r « with respect to the assets and debts and credits of Or his ancestor. Acceptance of the inheritance induced SS acceptance of all debts of the estate. Although the harshness of this rule has been limited, the concept of the universal successor persists, and the "normal settle- Q ment of a decedent's estate requires no judicial action." In Anglo-American Jurisdictions payments of debts of a decedent and the distribution of his estate normally requires a Judicial action. In the event there is a will

^Black's Law Dictionary, ^th ed,, 1951. P. 3366, 7 Simes and Fratcher, Fiauciary Administration, p. ?• ^Ibld,

/" 1-^ naming a successor, the court makes the formal appointment and issues letters to him. An administrator is appointed by the court to act as personal representative in the estate if there is no will. The executor or administrator takes possession of the estate in an official capacity, and the debts and assets remain those of the decedent but subject to the administration. The independent action allowed a personal representative varies widely from state to state in this country, and the judicial 9 Intervention is often minimal in all estates. As in other areas of American government the ;;* "English pattern in the formative period of American v-I •H, probate law" is clearly revealed in the matters of Q court organization, subject matter, terminology, and the £5

scope of the law determining the rights of those who X seek to make a claim on an estate. It is important, therefore, to briefly note the evolution of the probate court in the English system of courts.

^Ibld,, p, 8, Simes and Basye, Problems, p, 388,

/^ 11

English Heritage During the twelfth and thirteenth centuries in England a complicated and interdependent set of changes took place. The evolution of a rigorous prlmogenltary scheme for inheritance of land destroyed all unity to the law of succession, A last will and testament could only deal with chattels, and the church "asserted a right to protect and execute the last will of the dead man,"ll Since many Judges in the royal court were also officers of the church, they quietly allowed testament to fall to the ecclesiastical courts. If there were no 2-' testamentary gifts of land, the spiritual courts could *^ Pi Q take testament as their own. This procedure was a compro- * mlse based on practicality, S? X The concession might seem wise. Under the *< Influence of Roman law men Were beginning to have new ideas about the testament; It was becoming a trust testament, no mere post obit donation or death-bed distribution. The canonist being also a Romanist, had a doctrine of testaments; the English law had nothing that deserved so grand a name,-*"^ The law administered by the ecclesiastical courts was not the common law but the canon law. Officers of

Sir Frederick Pollock and Frederick William Maltland, The History of English Law Before the Time of Edward iT^nd ed. (Cambridgei The University Press, W8) p. 249. "^^Ibld., pp. 249-50. v:

the ecclesiastical court were more trained in cannon and Roman law than the common law, and testamentary law reflects this background. At this time the judge appointed his deputies, called "surrogates," who acted for the judge in his absence. Each ecclesiastical court also appointed a registrar upon whom the efficiency of the court depended. He set the time for hearings of cases and recorded the acts of the courts. To carry out his duties, the registrar employed scribes to assist in the making of record entries. The terminology established in the early history of the SI ecclesiastical court is still reflected in the English g| system and many of the American state systems.13 n Gradually the executor, although appointed in the a: spiritual coiirt, was recognized in the law courts as the "S X person to sue and be sued when pecuniary claims survived the death of the testator. Only the civil courts had jurisdiction to determine any controversial claim.1^ Early in the nineteenth century the church still retained jurisdiction over church property and consecrated grounds, over matrioraonial matters, as well as over probate (except that the interpretation of wills had passed to Chancery). Writs of prohibition from common law courts and the

•^^Eugene M. Haertle, "The History of the Probate Court," Marquette Law Review, XLV (September, 1962) pp. 5148-14^. ^Ibid., 514-9. ^-«pr-

entertainment of protests by Chancery to discover assets or to determine the existence of a trust eroded the power of the church courts.

A commission, formed to enquire into the jurisdic tion of ecclesiastical courts, recommended their abolition in 1833. In 1857 the probate and matriomonial jurisdiction of the church courts was conferred upon the Court of Probate and the Divorce Court. The Court of Probate Act made the jurisdiction of that court effective as to real property and chattels; it also contained minute provisions "granting to the old officials of the spiritual courts placed in the ^i newly organized Court of Probate. . . ."15 «^ The first Judicature Act of l875 provided for the unification of the English courts. The jurisdiction to adjudicate controversies in decedent's estates, as well as jurisdiction in equitable proceedings, was transferred to a branch of the unified court. The present organ ization of the courts in Englsind was established in 1925. One of the three divisions of the present High Court of Justice is that of Probate, Divorce and Admiralty, which is staffed by judges who must Lave had at least ten years experience as barristers.^

•^^Pollock and Maitland, History, p. 121. -'•^Lewls M. Simes and Paul E. Basye, "Organization of the Probate Court in America," Michigan Law Review, XLII (June, 19[4[4) p. 975.

y - • • .-^N X

60 Unfortunately some of the best practices which evolved in England were never adopted by many American states. One of these is the practice which allowed the Informal probate of decedents' estates, which is an impor tant recommendation of the Uniform Probate Code, recently adopted by the American Bar Association,^ Of the roughly 3.000 probate and administration cases filed each year in England only about ninety become contentious sind necessitate a formal "probate in solemn form,"l8

Some confusion is caused by the difference in terminology found in American Jurisdictions which use *;[ some of the old English terms; for example, some probate '^' courts are called consistory courts and the Judge, the g ordinary, and his deputy, the surrogate. More unfortun- £? ate, however, has been the tendency in some American ^ Jurisdictions to retain the archaic dichotomy of Jurisdic tion between probate and chancery and the distinction be tween Jurisdiction to determine controversies Involving personal property but not those involving real property.

^^Natlonal Conference of Commissioners on Uniform State Laws, Uniform Probate Code with Official Comments (Englewood Cliffs: Prentice-Hall, Inc,, 1970), The code was approved by the House of Delegates of the American Bar Association in August, 1969. William F, Fratcher, Probate Can Be Quick and Cheapt Trusts and Estates In England (New York: Pageant Press, Inc, , 19^Fy p, 66, 81

American Heritage The settlers who established colonies on the Atlantic Coast in the seventeenth century brought with them the common law of England, modified by the Statute of Wills, Although the power to dispose of real estate by will has, therefore, always been recognized in the United States, its roots were In the English law. Some of the English experience Is to be noted in the early developments of the American probate courts, but there has been an attempt to combine all the powers of the "^1 ancient ecclesiastical, common law and chancery courts, 5

•*"^Haertle, "History," p, 551. 20simes and Basye, "Probate Court," p. 977. x:

82 Different aspects of development are noted in the evolution of American probate courts: the extent of their powers, the form of the court, and the Jurisdic tion, Early probate powers were quite limited Just as had been the powers of the ecclesiastical courts, "Very gradually these powers were extended to include a needed control and supervision over executors and administrators in their administration of estates,"21 However, the process of completing control in the probate court was seldom accomplished. The testamentary Jurisdiction formerly given to general courts or vested in the Governor was first transferred to the county or tilal courts. The increasing demands on the Judiciary and the movement toward consolidation of court functions had an unfortunate consequence for probate courts. Inferior county courts were established with a limited civil and criminal

Jurisdiction, and probate powers were added to the Jur- Isdlctlon of these courts in msuiy states ,^'2-2 Tradltionally the Judges of the supreme courts and courts of general trial Jurisdiction have been required to be trained in the law, and district and circuit courts undoubtedly have also performed the function of probate. For various reasons probate judges have not been required

^^Ibld., pp. 978-979. 22 "^Ibld.

y^ /J^«^-

to be members of the bar in most states: the function

is predominantly administrative, and litigation seldom

arises; lawyers have been scarce in the less populous

areas; and the salaries can be lower for nonlawyers.

The position of the probate courts in the Judicial hierarchy was indeed a curious one. Vested with the combined powers of the English ecclesiastical courts to probate wills and grant letters of administration, ,and of the Court of Chancery to administer estates, they were gener ally declared to be courts of record and in this respect the eaual of the supreme and ordinary trial courts,^-^

As courts of record, probate courts were accorded the

special dignity of a presumption of "regularity" of their S[ proceedings and validity of their judgments,^^ Although fl the historical development of these courts in the United ^ States has cast them in the mold of "inferior" or "limited" S X •^' courts, this classification is inaccurate. They do not have general Jurisdiction, but there is no limit to the value or importance of the matters assigned to them. A chief badge of inferiority has been the review of probate orders and decrees in a trial d^ novo in the district or circuit court, "just as in the case of appeals from the judgments of justices of the peace."^^

^^Atkinson, "Organization of Probate Courts," p. 914. ^^Simes and Basye, Problems, p. [|.l5. ^^ibid.

^TS^ 8/4

The reason for the requirement of a trial d^e novo on appeal from the probate courts has been attributed to the lack of high standards of competence for the office, plus the short tenure and small emoluments which are characteristic of the court in most states. In the United States probate courts are classified in four ways: separate courts with inferior status; pro bate courts unified with co\irts of general jurisdiction; separate probate courts coordinate with those of general jurisdiction; and probate matters handled in chancery.^" ^ Most states, including New Mexico, fall within the first fi! lAi\ category—inferior status. The separability of this S s court in the early institutions in America was justified r^ &? by the special nature of the proceedings. While the ;:-» transfer of property from one generation to another was deemed to require some supervision, the process was often personal and more suited to an informal surround ing. As noted, the judges were "without legal training or experience,"^' but protection was secured through the device of a trial de^ novo in a court of general trial jurisdiction. Another result has been that over the years the procedures of probate have become more and

^^Ibid. ^"^Ibid., p. [420.

'^'^v 85 formal because "lawyers and Judges sought to bring pro tective features into the inherited requirements,"^7 Certain aspects of the evolution of probate pro cedure in different states helps to illuminate the diff erences in probate courts from state to state. Perhaps no other court or administrative body is as closely tied to the customs and practices of its society as the probate court. Much of the southwest traces its colonial exper ience to continental Europe, particularly to Spain, and. In the areas which were originally settled by the Spanish, there are traces of the continental civil law and prac- 7i\ tlce. This continental heritage includes community ^•' property, sometimes an office similar to the universal 2 successor, and a probate court which originally had many p powers and functions as in the Territory of New Mexico, ^j A brief analysis of some of the practices in other states shows a wide variation of probate practice in the United States, The Massachusetts system Is considered a model and is the practice which originally Influenced the formal functions of this court as It was established on the frontier.

'National Conference of Commissioners on Uniform Laws, Uniform Probate Code, Working Draft Number ^, "Preferatory Note," p, xlx. 86

Massachusetts In many respects the Massachusetts probate sys tem represents the peculiarly American way of dealing with the Judicial aspects of succession to property upon death. The present scheme of administration in most states more nearly resembles the Massachusetts plan than the English, The probate code of the frontier was not even a product of the new West but an adoption of the Massachusetts practice, so the background of testa mentary succession in Massachusetts tells a part of the KI[ story of the evolution of the probate courts in the '^' United States,^8 g The settlers in Massachusetts had a spirit similar i. to that of the leaders of the English Commonwealth period, 5 •< which abolished ecclesiastical Jurisdiction, Therefore, there never appeared to be any serious controversy over the vesting of testamentary Jurisdiction somewhere in the law courts. The first local courts exercised this

po William Wirt Blume, "Probate and Administration on the American Frontier," Michigan Law Review, XVIII (December, 1959) p. 2^6, "The governor and Judges were required to adopt laws from the original states, and this they did without deviation, , , By adopting the Massachusetts scheme and combining powers formerly exercised by the ecclesiastical, chancery and common law courts of England, the governor and Judges of Michigan helped to establish, and transmit westward, a distinct ively American legal institution—the probate court,"

/ ^ ~\ -'frrr- -/^tv

power even though it had not been specifically assigned

to them.^^ Although the records were not always kept,

enough information has been pieced together to establish

the fact that in the seventeenth century testamentary

jurisdiction was exercised by three different courts in

Massachusett3--the General Court, Court of Assistants, and

the county courts. The practice is distinguished from

the English in that each of the courts exercised all

powers of ecclesiastical courts and also had jurisdiction

over succession to land. What is even more important was

the considerable discretion the courts had in determining gi

substantive and procedural aspects of succession.

Although these courts sometimes used English practice,

the guiding principle was that of utility and practicality X' rather than a strict observance of English custom.

After the colonial charters were vacated, probate

jurisdiction was assiomed by the President of the Council

of New England in 1686. The resulting centralization and

use of more English practice improved the loose practi2e

formerly accepted. Under the charter of 1691 by William

and Mary the power of granting probate was established

in the governor with the council and assistants,^^ who

^^Thomas E. Atkinson, "The Development of the Massachusetts Probate System," Michigan Law Review, XLII (December, I9I43) P. k32. 30Ibid. , pp. kk^V'-'k'i*

y^ 38 were the Supreme Court of Probate. "Thus the probate jurisdiction was taken from the common-law courts, and even made independent of legislative power."31 A deputy or surrogate was commissioned in each county and was known as the "Judge of Probate." Registrars ;>rere appointed to attend to the records and clerical work. This whole experience resulted in a strong ecclesiastical court influence which still remains in the Massachusetts probate court procedure,32 \y^^^j^ it was also the beginning of probate courts as distinct tribunals in this country. The B courts continued to function until the legislature g| i/i\ established county courts of probate under the state Jlfl g constitution, in llQk* r^ The administration of decedents' estates in equity «S; never gained foothold in Massachusetts because the hands of the probate officials were not tied by the inadequate means of enforcing decrees which hampered the English church courts; in addition, there was not a separate court of equity in Massachusetts at this time. Although local laws prevailed when there was a conflict, generally the laws of England were followed. Probate Courts were

3-^Samuel E. Bartlett. Kansas Probate Law and Practice (Kansas City: Vernon Law Book Company, 1953) p. 6, Atkinson, "Massachusetts Probate," p, kh^*

/" w

established as courts of record in 1862 and their decrees made conclusive. Powers of these courts were gradually Increased and statutory Jurisdiction given to them over matters formerly given exclusively to common law courts. These various statutes, based upon tne suggestions of practical experience, and passed with a view of promoting the prompt and economical disposition of tne matters to which they relate, resulted in establishing the large jurisdiction exercised by probate courts.33 The historical evolution of these courts in Massachusetts shows the growth of an Indigenoiis probate court system in America, and "many colonial innovations ^t [have] remained and provided a markedly different design g| of testamentary Jurisdiction and procedure in the new 3 country."3^ It became the practice to conduct all probate CT •So matters in one court in Massachusetts, while until 1857 •§ this Jurisdiction was divided equally among ecclesiastical, chancery and common law courts in England, The uninvolved English estate was usually settled without court interven tion, but the practice in this coimtry became that of complete supervision. The foremost students of probate law and practice are today suggesting that we imitate the English system in this last respect.-^-3^5

33Bartlett, Kansas Probate Law, p. 8. Atkinson, "Massachusetts Probate," p. 442, 35 Uniform Probate Cooe. /jmL

Today the Massachusetts Probate Courts have exclusive jurisdiction over the general settlement of estates. The powers exercised by the court are plenary, and its decisions are not subject to review (ie novo. Actions are begun by a petition, and notice is given to all interested parties by citation and publication. Although real property goes directly to the heir or devisee, the probate court can license the personal representative to sell real estate to pay debts if there is not enough personalty to satisfy them. Appeals are made to the full ^ SI supreme court in the first instance. "Clearly the [ laasa- SI chusetts] probate court is no longer an inferior court but ?!{ a: one of superior—though specified—jurisdiction,"3^

Wisconsin and Iowa <2 The Mar.sachusetts statutes furnished the pattern, not only in much of New England, but for many of the new states carved out of the Northwest Territory, The part of the pattern which often was not follov;ed was the establishment of a classically good court structure which would have given the probate court general, though specific, jurisdiction which was not subject to review d_e novo. Often the required qualifications of the judges and the

3^Atkin3Qn, "iMassachusetts Probnte," p, 60. /J*^ TT

rules of practice before the court were not of the high standards essential to good court administration. For example, probate and civil Jurisdiction was given to the county court in Wisconsin, That court d^es exercise the jurisdiction formerly allowed only Chancery and common ir»w courts in England, but nothing is roouired in the way of training or experience for the judges. Nevertheless, the court has relatively extensive powers which Include probate of wills and appointment of administrators, ^s well as authority to determine ownert^hip of land, and Jurisdiction to convert real estate into money for the p;( payment of legacies, and t>ie supervision of the accounting t*5t

r 1 of executors, administrators and guardianr aonointed by the court. I'hese are very extensive powei^s to rive to a •«s court often manned by an untrained probate ju^.^e. /^i On the other hand, in Iowa probato is handled by probate courts, sitting as a divirlon of the district court--court of general triaJ Jurisdiction, An even wider range of cases can be handled by the Court in Iowa than in Wisconsin, Probate jurisdiction include^ "all mettert; pertaininr to estates of decedentJ^ and absentees, guard ianship, conservators testamentary trusts, inter vivos trusts, , ,"37 Tj^g statute also vests in the probate court the power to interpret express ti'U£:t agreements and to

37'^illard L, Boyd, "Symposium on the New Iowa Probate Code," Iowa Law Review, XLIX (Spring, 1964) p. 6^0, 92 construe wills. Of course, the di.strict court, sitting as a division of probate, has full powers, legal and equ:I t- able to determine questions of title to real estate and to adjudicate the removal of clouds from such titles.

Connecticut The state of Connecticut illustrates another extreme of practice in the probate courts. The experience with that system prompted Mr. Norman Dacy to make his broadside and generalized attack on the system of probate and particularly on attorneys.38 v/hat that author either rv( did not know or did not feel compelled to reveal was the *^' fact that the Bar in Connecticut has been concerned v/ith 3 the problem of its probate courts for many years. In 1933 S

an article appeared in the Connecticut Bar Journal which V: criticized the probate courts and used quantitative data to show that c?ianges were needed39 ^t that time there were far more probate courts than the population warranted, and there was no way to determine what the income of a probate judge might be because the fee system governed his remuneration. Since many citizens have occasion, through the death of a relative or a friend, to become interested in a probate proceedings, it was considered

38Norman F. Dacy, Jiow to Avoid Probate! (New York: Crown Publishers, Inc., 196'?T; 39sheldon B. Smith, "Some Comments on the District Probate System," Connecticut jBar Journal, VII (cTanuary- April, 1933) 56-7Cr: 93 highly desirable to have a court which warranted respect and confidence. But this change has not been demanded by the public in Connecticut. Every testator who prepares a will under the guidance of a careful attorney gives thoughtful consideration to the selection of a fiduciary. The character, sill and ability of the person, or corporation, named is considered thoroughly. Yet many of these same testators vote glibly for Probate Judge who has no technical preparation for office whatsoever. Outside the Justice of the Peace, the Probate Judge is the only Judge chosen by pop\

Ibid,, p, 60, The writer concluded that it would be no more ridiculous for a lawyer to remove an appendix or prescribe for typhoid than for a layman to pass upon the Intricate problems presented to probate courts, 41 Warren F, Cressy, "Proceedings and Reports of the Judicial Study Commission as it affects Probate Courts/" Connecticut Bar Journal, XVIII (October, 19^5) pp. I6O-65, ^^4 by a branch of the court of general trial jurisdiction, or by surrogates appointed by the governor and confirmed

in the same manner as general trial court judges. The

suggested plan would broaden the jurisdiction of the pro bate court and provide for the election of magistrates

or registrars in each town who would attend to routine matters in the filing of papers. "It was generally agreed

that the plan would meet considerable opposition in the

legislature. , ,"4-2 Another member of the comnission

was convinced that the people wanted local courts only.

In 1951 the Connecticut probate court was the fi

subject of a critical analysis again.^3 phe basis of i^ 3 the criticism was that under a curious anachronism in ^

A^ the judicial system state probate courts there functioned ti • K very similarly to the practice in colonial days.

They comprise the only segment of the state judiciary in which the judges still operate their own courts, pay the clerks, secretarial help and other expenses, and retain as their compensation, the net income left from the fees paid in the courts in connection with the admini stration of the estate and other matters coming within their jurisdiction.^4

^ Ibid., p. 161.

^ A. Frederick Mignone, "A Colcninl Coiu't Today: Connecticut's Probate Court System," American Bar Assoc iation Journal, XXXVII (1951) PP. 337-41, 405-oTr: ^^^Ibid., p. 337, 9::J

Decisions of probate courts in Connecticut lack finality because they are subject to appeal and trial de novo. Revisions of the practice in probate courts have been suggested to the Connecticut legislature.

The proposed changes would abolish the fee system and provide for the handling of routine formalities of probate proceedings by a probate clerk in each district.

Controversial cases would be referred to a probate division of the court of general trial jurisdiction.

Strong resistance to any change was marshalled by those interested in maintaining the status quo. gS

The "Probate Court Assembly," composed o1 the C ) presently serving judges of probate throughout a: the state, are opposing the Clark and Inglish reports, claiming that the present system has •^ proved its effectiveness throughout the long ^i2 period of time it has been functioning, and ;''g that the election of probate judges makes them better servants of the people they serve. With this cleavage of opinion, it remained to be seen whether any, gtubstsntial changes would be effected. . .'-^'^

Successful resistance to change such as is exemplified in Connecticut, plus the appearance of criticisms in popular literature, have brought about an increased awareness on the part of the public. The fact that Mr. Dacy's book became a best seller is ample evidence of the fact that many people are considering the

^^Ibid., p. [4O6. NT"

avoidance of probate. While following Mr. Dacy's advice may do more harm than good for the individuals involved and probably will not achieve their desi:*ed result, the cold scrutiny of the public may make it imperative that some changes be made. These changes could provide for the Massachusetts, New York or Iowa practice, the English practice, or for a universal successor as is found in the statutes of several states but apparently used most extensively in Texas and Washington.

The Non-intervention Executor rv| Texas and Washington fe; The state of Texas has adopted a simplified form |^

of probate termed the "independent executor." As early s? as l8[j.3 the Seventh Congress of the Republic of Texas

authorized a testator to provide in his will that no

other act had to be taken than the registration of his

will with the probate court. The first legislature of

Texas re-enacted that provision, and the first compre

hensive Texas probate legislation included a similar

provision.46 In I868 the State of Washington enacted a

similar provision, apparently Independent of any knowledge

^^^William I. Marschall, Jr., "Independent Admini stration of Decedent's Estate," Texas Law Review, XXXIIl (November, 1954-) p. 97. 'i*-*-

of the Texas Procedure. Some writers^^'^ have concluded that there is a closer similarity to the English practice of informal probate than the practice under the Roman law, which provides for the immediate succession by the decedent's heirs.^^ By Roman law the movable and immovable property of a testator passed directly to the instituted heir, ... A Roman testator could distribute his entire estate among the legatees, leaving nothing to the instituted heir but the duties to collect and distribute the estate. In such instances the instituted heir corresponds al most identically with the independent executor. . . Moreover, absence of judicial supervision in an administration evidences a civil-law as opposed 5} to a common-law background. While it might be fe| impossible to prove that the independent executor ^' is not the modern counterpart of the instituted ^ heir, it is difficult to adduce concrete proof g to substantiate the opposite conclusion.49 _^ In Texas a will nominating an executor is indis- 2 pensable since administration of an intestate succession free from judicial supervision is unknown. However, in that state it is possible to simply file an affidavit of heirship which, if recorded for five years in the county in which property is located, serves as prima

^"^Edward B. Winn, "Non-Judicial Administration of Estates in Texas," Southwestern Law Journal, XVII (September, 1963) p. 3'^^* ^Marschall, "Independent Administration," p. 96; other jurisdictions which have provided for a universal successor are Arizona, Idaho, and Puerto Rico. ^%bid,, pp. 97-98.

/-" x^'V

^^8 facie evidence of heirship. In addition informal family settlements are recognized, even though they may be in derrogation of the tenns of the decedent's will.^

Before 1956 an independent executor was handi capped because of a lack of authority to make a record of the termination of his duties and authority. Statutes were passed which enabled such an executor to close an estate in a simple, inexpensive manner. When all debts are paid and all distributions made, he may file a veri fied account which terminates the administration and gives notice that all individuals in the future should look directly to the devisees.-^ •-1 Although the Texas procedure is considered admlr- f, ably simple, the Washington provision for an Independent -"^ executor has not achieve the end for which it was origin- -^ ally planned. A particular form of a will is necessary in order to take advantage of having the independent executor. Also, the winding up process for the estate has become more complex, and formal notice requirements have shackled the procedure, A plea for a non-interven tion proceedings blames the misuse of the Washington practice for the advent of many ill-advised schemes to

^^Wlnn, "Non-Judicial Administration," pp, 386-87. M. K. Woodward, "Independent Administration Under the New Texas Probate Code," Texas Law Review, XXXIV (May, 1956) p. 694.

/ y^ ^...^"••'-"ll III I l,.i^\ ^

99 avoid probate.

The Washington non-intervention proceeding has been hidden In its geographic isolation and in the self-content of the lawyers who use it for these many years. Inspected now for its good and its bad, it shows its frustrations and in adequacies as deriving not so much from the removed-from-the-court aspect but from its very closeness to an antiquated and misdirected regular probate system, which is geared for carelessness, dishonesty and litigation and encrusted with a profusion of procedural detail. Freed of this, by making all non-contentious probate administration essentially "non intervention," the administration of decedent's estates could and ought to be re-built, adequately to perform its important task,^^ The statutes of the first New Mexico Territorial Legislature made provisions for an instituted heir, 2* even making him liable for all the debts of the decedent ^ if he should accept the Inheritance, ^3 ^^s will be shown '^ later, the original provisions for administering an tj estate in the Territory of New Mexico did not prescribe the < giving of notice to anyone; the only provision was for the filing of an annual account and the making of a final accounting, also without making a provision for the giving of notice to anyone. These provisions were, of course, more similar to the continental European practice.

<2 -^ Robert L, Fletcher, "Washington's Non-intervention Executor—Starting Point for Probate Simplifications," Washington Law Review, XLI (January, 1966) p, 92-93. 53New Mexico, Revised Statutes of the Territory ch. 2 (1865).

T^wsBBSjcaa^craH-N 100

Alabama An anomolous office, called that of the Probate Judge, continues as a party of the judiciary in Alabama. In some ways it is reminiscent of that position as it was originally established in the Territory of New Mexico, and it is possible that they had some common antecedents. In Alabama the constitution authorizes the establishment of a probate coiu?t in each county. The probate judge is elected by the voters of the county for a term of six years, but the major qualifications required of a candi ?l date for the office are only that he be a citizen of fe!

Alabama and that he have resided m his county for a rH year. The court is an inferior tribunal with special jurisdiction limited to that given by the statute. It :''ia has no equity jurisdiction and is described as a court of record which exercises general jurisdiction but which can be "circumvented at the will of the parties."54

Why, one may ask, is it necessary to have such a system which results in such inefficiency and loss of prestige? Apart from historical reasons, one may suspect that the reason for its existence lies in the notion that any court presided over by a lay judge is factually inferior and due to be mistrusted; fairness there fore requires that the parties be allowed to have their matters handled by a tribunal with a trained judge if they choose.-^

^^Bartlett, Kansas Probate Law, p. 9. ^^Vernon F. Chaffin, "Suggestions for Improving Probate Court Organization and Procedure in Alabama," Alabama Law Review, X (1957) P« 23. 101 Nevertheless, the probate judge occupies a unique position in Alabama. He presides over a court considered so important that the constitution prohibits the aboli tion of the office by the legislature, but gives no constitutional gtiarantee that his salary will not be diminished during his term. Although a Judge appointed during the illness or incapacity of the probate Judge must be a person practicing law in the county, the in cumbent does not have to be trained in the law. Compen- senation for the office is on a fee system basis, which probably originated because his duties are largely ^j administrative, and the cases before him are usually e^» non-litlgous. In addition, the least populated counties 5 would find it difficult to pay an adequate salary. ^

lb The fact that the probate Judge may be ousted t^*'« from his duties as such is compensated by his other, diverse and unrelated functions. He presides over the court of county commissioners and becomes the ex officio Judge of the county court if it is established. He acts as the principle recording office in the county. Deeds, mortgages, liens and Judgments are admitted to record in his office. His office, moreover, is the official repository for census reports, law books furnished by the state, weekly newspapers and acts of Congress.-^

^^Ibld., p. 49, 102

The probate judges function as election offitials who maintain a list of qualified voters, handle printing of ballots, appoint inspectors and clerks for polling places, receive and canvass election returns and order the holding of special elections. Almost every kind of license is sold by the probate judge in Alabama, From his office one may purchase motor vehicle, hunting, fishing, and marriage licenses, plus a multitude of other permits to engage in business, professional and vocational pursuits.57 When taxes are uncollected, the probate judge orders the sale of land for their payment, handles St redemption of such land and refunds of taxes which have ^' been paid by mistake. He is conservor of the peace and 5 inspector of the sheriff's records; he takes bail, issues ^ attachinents and writs of habeas corpus and certiorari, 'c Among his other powers are those to issue orders for the condemaiation of land in eminent domain proceedings "and the povrer to grant authority for the erection of dams for mills, gins, and factories."-^

^'^Ibid.. p. 50. 58 Ibid., p. 5l. -^m^

10 3

New M^exico Probate Courts — Attrition of an Institution The first fundamental law of the Territory of New Mexico was the Kearney Code, promulgated in iQk^, by which it was provided that the laws theretofore in existence would remain in force insofar as they were not inconsistent with the laws of the United States.-"^ The office of the prefect was established for each county, and probate powers were among those vested in that office. An identical provision was made by the first legislature: "There shall be a prefect in each county of this Territory, ^( who shall hold his office for two years, and until his *^' successor be appointed and qualified.""^ 2 When the sum involved was no more than fifty Jr • dollars, appeals from judgment of alcaldes were taken !**^ to the prefect, and appeals were allowed from all judg ments of the prefect to the circuit court, "provided that all Judgments, in cases of appeals from decisions of alcaldes, shall be final and conclusive.""-'- The prefect simply acted as a court of last resort in cases involving small sums tried originally by alcaldes.

'^ New Mexico, Statutes Annotated (1953). ^^New Mexico, Revised Statutes and Laws of the^ Territory, chap. 2, sec. 1 (18^571 ^•^New Mexico, Statutes Annotated, sec. 16-4-10 (1953).

•fiwranTrrr^ x: f-

10/,

The prefects were to hold six terms of court in each year, and the rules and restrictions governing appeals from the circuit court to the superior court would apply whenever an appeal was made by the prefect to the circuit court. The chief duty of the probate Judges of the dif ferent counties of the territory was to hold two courts in each county each year for the trial of civil causes. Jurisdiction of the court included actions on open and liquidated accounts, replevin and debts of any nature when the claim did not exceed five hundred dollars. The ,p;} probate courts were given concurrent original jurisdiction K over all criminal cases which pertained to the Jurisdlc- g tion of the Justices of the peace, as well as appellate j

A Jurisdiction over both criminal and civil cases heard : J originally in the Justice court, "The practice in said courts of the Judges of probate [was] the same as that in 62 the district courts, in all its parts and provisions," The probate Judges, together with the sheriff and the probate clerk, were required to meet in the court house of the respective counties at least ten days before the terms for criminal and civil matters to select

62 Kearney Code, ch. 2, sec, 1, New Mexico, Statutes (I865), The terms "prefect" and "probate judge" are used Interchangeably in these statutes, and the term chosen in the text coincides with its usage in the particular statute to which reference is made.

x~ •-—-^^^-^ "twelve respectable and honest men as petit jurors, possessing the same powers as now provided by law for Jurors in the district court." 3

County records were to be kept by the probate clerk who acted as ex officio recorder for the county. The legislature of the territory gave other, wider and varying powers to the probate court, among which was the appointment of a treasurer of the county and the filling of vacancies which might occur in that office. The responsibility of the treasurer was to keep an account of all money paid into and withdrawn from the !*M 1^: county and to account to the prefect for these receipts '*" and expenditures. z: He shall, at least once in every year, settle !: his accounts with the prefect, and at the close of his term for which he was appointed the pre- 'J feet shall immediately proceed to ascertain by actual examination and count the amount of balances and fimds in the hands of such treas urer, and to what particular fund it belongs. If any county treasurer shall die, his execu tor or administrator shall immediately settle his accoimts as treasurer with the prefect, and deliver to his successor in office all things pertaining thereto.^

•^Ibid. , c, 21, sec, 31. Ibid., c. 88, sec, 1, It was not until the state constitution ./as adopted In 1912 that the office of county clerk vja.-^ formally established, ^^Ibid., c. 21, sec. 9. 106

All other county officials, including collectors, sheriffs and clerks and other persons chargeable with moneys belonging to the county were required to render their accounts to and settle with the court of the prefect. Any balance which might be due the county and was paid, would be deposited in the county treasury. All county officials were required to deposit receipts with the clerk of the prefect within five days after their account ing for monies received by them."" The clerk of the prefect court was charged with ??( the duty of keeping accounts between the county and all iS persons having money payable to the county treasurer. «,;:) z: The keeping of records included the issuance of warrants ^ for payments by the county and exhibiting balanced accounts ':,»•' J at every regular term of the prefect and keeping the books ready for inspection by the prefect at all times."^ The duty of each alcalde was to make a list of fines imposed by him for the county and to certify his records to the clerk at each term of court of the prefect. Delay in the making of accounts resulted in a forfeit of two and one-half per cent per month of the amounts not

^^Ibid., sec. 9. ^"^Ibid., sec. 10

~\ ^^v

107

paid. Great discretion was allovjed the prefect in these matters. Each prefect shall have power to admit and adjust, and settle all accounts to which his county shall be a party, to order payment out of the county treasury of any sum of money found due by the county, and to allov; the clerk and the treasurer of the county for their services imder this law such compensation as he may deem just and reasonable."8

The probate judges were also responsible for inquiring into Indian attacks: to inform themselves of the particulars, including the number of lives lost and animals missing, and to transmit such information .";« to the superintendent of Indian affairs. A copy of >" ''V the certificate was to be left with the clerk for preser- •'2 vation in the record. The Judge could require that 3 justices of the peace notify him of any information '^ :J regarding depredation by Indians."*^ Both prefects and justices of the peace were authorized to rpprehend and to bind over to the proper court any individual who breached the law regarding the regulation of trade and intercourse with the Indians. Wide authority was given the prefect over children in the Territory who were disobedient. A part of the

^^Ibid., sec. 17. 69Ibid. , sees. 39 and [|.0. V

10.!i3

duties assigned to the prefects and to the justices of the peace concerned the punishment of dissident children. Any child who absented himself without permission of his parents or committed any great "excess" or very grave disrespect toward his parents "and their admonitions and punishments be not sufficient for thoir correction," could be taken before the court in order that he might "reprimand them and instruct them in regard to their natural duties." If the same offense were committed a second time, the child could be placed in a house of correction with the knowledge and assistance of the court.' ' ii,2| Other provisions were made for punisliment of children ^*^ who ccfinnnitted any grievous Injuries, indignities, or actual bodily harm against their fathers, grandfathers, r or guardians, who could in the alternative resort to the court, "praying that a writ be issued against the person accused."71 . . . The person being present, if it appears from the evidence that said criine has been committed, the person thus offending shall be punished by imprisonment in the county jail, for a period which shall not be more than six months, nor less than three months, at hard labor.

'i^^Ibid., sees. 19 and 20. '^llbid., sec. 23. 10":

The son or daughter, grandson or granddaugliter, who shall the second tiine be accused, and the fact be proved of having committed the crime specified in the first section of thl^ qct, the person thus offending shall be punished by a penalty double that designated in the first section: Provided, even though they may have gone out from the paternal authority; provided further, that they may be disinherited, if the will of the fathers or grandfathers express it.7^ Since these courts served as a forum to aid in enforcing parental authority, it was natural that jurisdiction was given to the probate court to approve the adoption and legitimization of children. This was accomplished simply by the filing of a petition by the :;iS! ti ,«• adoptive parent and by his appearance to swear that he 'tj would care and provide for the child. After I07O the statute required that a record be made of these proceedings lA I and filed with the clerk.73 The probate judge could take children away fron immoral parents and order the adoption of abondoned children without the consent of the parents.74 Another power of the prefect during the first twenty-five years of territorial government was the superintending of public roads in the county. The judge could appoint overseers and "allov/ them hands for the

72 Ibid., sees. 23 and 2k•

'^hlevj Mexico, Compiled Laws jof the Territory, sec. iim (1897). '^^•^Ibli., sees. 1503 and l504. IPBy'

11 J purpose of establishing and repairing the same," The "allowance of hands" could be accomplished through the power to supervise vagrants and those with no visible means of support,75 The Judge could have vagrants "arrested and tried by a Jury; and in case of conviction, put to hard labor by binding them out and placing them on public works for not more than three months; , , ."76 "Before 1870, , . peonage. New Mexico's own peculiar form of slavery was abolished by act of Con gress, "'^'^ It was the probate court which had the power "to bind out apprentices; , , , [and settle] all contro- •( *•{ versies between masters and those bound to them; , , ,"7o • <\ <"^ By 1884 many of the pervasive powers vzhich were ^ attached to the office of the prefect (now always called .:JB probate Judge) had been eroded through an effort to ! democratize the Territory, The treasurer and the clerk were no longer appointed by the prefect but were popularly elected. The powers of the county as a body politic and corporate were exercised by a popularly elected

75Kearney Code, ch, 2, sec. 3. ^^Ibld. Thomas C, Donelly, The Government of New Mexico (Albuquerque: The University of New Mexico Press, 1947) p,7 Kearney Code, ch, 2, sec, 3, 111

Board of County Commissioners.79 jn addition certain restrictions on the powers and discretion of the probate judge and the clerk began to appear. These involved prohibitions against removing the probate records more than six miles from the county courthouse, and a requirement that the probate judge held coiu^t in the county seats. There was a time limitation on the number of days a probate judge could sit at any one session of court. The clerk and the judge were made subject to five thousand dollar fines and removal for neglect or duty.

V/hereas formerly the appointment of election officials, Ki «:',- canvassing of elections and certification were powers of iJ»|^ •ff a the prefect, these functions were assumed by the board of county comnis si oners. J-? The probate judge, however, still retained certain powers with regard to the enforcement of tax assessments and the sale of occupational licenses. A p-^ wision was also made for capitation taxes which could only be released by an order of the probate court; it was within the Courtis discretion to find whether or not assess ments and fines were collectible. I'he assessors were required to meke out a list of all persons to be taxed

7^New Mexico, Compiled Laws of the Territory, sec. 33[4 ilQQk). ^^Ibid., sees. [4II, 415 and 416.

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and deliver the list to the constable for collection, and each of the constables was required to give bond payable to the Territory In double the amount of the tax. The full amount of the list furnished was to be chargeable to the constable by the probate court of his county, and under no circumstances was he to be released from the responsibi]Ity or any part thereof, except by order of the probate court of his county. The release was "given on the constable proving, to the satisfaction of said court, that it is, and has been impossible to Q-l collect the same, or any part thereof, , , ," As the powers of the Judge were eroded, those least affected were the purely probate functions. As noted, the Kearney Code provided that all laws which had been in force and which were not in conflict with the Constitution of the United States remained the laws of the Territory, The court continued to have the plenary jurisdiction given by the first Legislature to exercise powers over probate matters. That function still rests in the probate courts In New Mexico, . , ,The several prefects shall have exclusive original Jurisdiction In all cases relative to the probate of last wills and testaments, the granting of letters testamentary and of admini stration. , , the appointing and displacing of guardians and orphans and persons of unsound mlndj, , ,82

8lNew Mexico, Statutes, ch, 2, sec, 1 (1865), ^^Ibld,, ch. 2, sec, 3.

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CHAPTER VI

I'HE OROAMIZATION AND ADMINISTRATION OF THE NEW MEXICO PROBATE COURTS

The only manner in which an adequate understanding of the complexities of probate can be achieved is throup-h an analysis of some of the practices which have developed in that court. The jurisdiction of the probate court in New Mexico is very lim.ited in scope, but the value of the ;« cases within its jurisdiction is without limit. Its powers <' -i extend to the detemiination of the heirs of decedenti^' and 2 Q to the appointment of guardians of the estate and of the 5 I person of minor children. The problems which arise in f either kind of estate can be among the most complex for both attorneys and judges. A brief sui'vey of the development of probate law in New Mexico will be priven in this chapter. There will be included some of the types of cases which have been brought before the court. An understanding of some of the problems resolved in probate court should facilitate a comprehension of the requirements for the organization and administration of the court which performs the probate function. 113 ff^ T:

114 Growth and Change of Proce-Jural and Substantive Rule:! " Although in New Mexico the substantive and procedural requirements which have developed around probate are very formal and extensive, there seemed to be few forraalities when New Mexico first became a Territory. Many of the o'»iginal acts are compiled in the present statutes almost verbatim. These concern: (1) persons entitled to the appointment as personal representative; and (2) the power of the prefect to grant letters testa mentary and letters of administration; and (3) the proper "1 venue--"the county in which the mansion, house or place It. ^f f Ki of abode of the deceased is situated."1

If he had no mansion, house or place of abode • at the time of his death, and be possessed of : 5 land, letters shall be granted in the county "1 in which the lands, or a part thereof, lie.^ At that time there seemed to be no requirement that notice be given to either those interested as heirs and devisees or legatees or those who might have claims against the estate. The applicant for letters of administration was required to file an affidavit giving the name3 of the heirs and promising to make a perfect inventory. The

•^New Mexico, Statutes Annotated {V^S3) sec. 31-1-3. ^Ibid.

y •I- fr^

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prefect was obliged to take a bond from both executors and administrators in a sum not less than double the value of the estate and conditioned on faithful perform ance of the duties of the executor or administrator. Liability for any damage fell on the prefect himself if he failed to require tho bond. The only additional requirement was that the personal representative exhibit a statement of the accounts for settlement at the end of one year from the date of his letters and yearly there after until the estate was fully administered. If the personal representative foiled to make the reports to '", the prefect he might be fined not more than a hundred j dollars for the use of the county for each failure. In I addition he would forfeit double the dainages sustained f by such default to the party injured,3 Protection of interested parties today is attained through detailed requirements of notice: to heirs, legatees and devisees before a hearing can be had to probate a will; to creditors when there is an appoint ment of a personal representative; and to all known "heirs, legatees and devisees. . • all unknown heirs of the decedent and all unknown persons claiming any lien upon or right, title or interest in, or to the estate of

3Kearney Code, "Administrations,'' sees. 9-12, New Mexico Statutes Annotated (1953). 116 said decedent, . . , , "-^ In addition the statutes require the appointment of an attorney to represent any minor heir, legatee or devisee, as a guardian ad litem. Additional requirements have evolved with respect to the execution of a valid will. Before New Mexico became a Territory of the United states, the laws of Spain and Mexico governed the require ments for proper execution of a will, and these were given effect by the Kearney Code, insofar as they did not conflict with the laws of the United States, The laws of

Mexico required that a will be executed before a notary «; HI public and seven vjitnesses, but the rerritorial Supreme ^ Court found it necessary to enforce an accepted custom ' with regard to the due execution of a will before an 1 alcalde and two witnesses. The decision wa:; not in accord with the Mexican statutory requirements, but the territory had never been served by the public official required by those statutes." Since Mexico had never furnished this territory with an escribano publico, the customary practice of the citizens would prevail. A i-jill executed before an alcalde and attested by two witnesses in New Mexico, while a province of Mexico, would be considered valid

"^Statutes (I'^^i) sees. 30-2-l|- th;-our-h 30-2-6, 31-1-23 and 31"1'^"7* ^Gildersleevc. v. New Mexico Iiinh-.g Co,, 6 N,H. 27, 27 p, 318 (1891), 161 U..^. 573, 40 L..ed. 81.-^ (I896),

X ' X V

1)7

"ex necessitate r^^i" bocauso that e;u^:r-uMcri was "in

accordance with a custom which had preva* led for more t^^an 100 years. "'^ The instriament in question was what ie known as an "open" or "nimcupative" testament. The two kinds of wills are thus defined by Velarde, . , . "As a person may declare his will by writing or by word of mouth, it follows that wills are divided into two classes--written, gencj*ally called 'cerrado* or sealed, when the testator expresses his will on paper written and sealed, declaring it to be his testament, in the presence of seven witnesses, and before a notary, who should sign t?]eir names upon the cover or envelope with the testator; nurtcupative, which is also called 'abierto' or open, and v/hich is tho most common, and Is authenticated when the testator ,i manifests his will by word of mouth belore . If witnesses, with the formalities required by law." 1» After enumerating the several fornialities ^ required in the execution of wills, he proceeds: ' J "The second formality is the presence of • witnesses. F'or an abler to or open will, three .T are, at least requ 1 red,""¥0sid.ents of the neigh •J borhood where the will is made; besides it should be executed before a notary public or escribano publico. If there bo no notary, five witnesses, residents of the neighborhood, should be present; and if that number cannot be obtained, three will suffice. "^^ The deceased and his wife had executed the will and had provided that the survivor should bo the universal legatee or heir of the other to all of the property. Tho husband died before the wife in I848, and the wife continued in possession of the property "and the enjoyment of the privileges connected therewith, and retained this

^Ibid., Syllabus No, 2. 8Ibid. , pp. 321-22. \z

118

possession up to December 20, 1853, when she sold and delivered possession thereof, , ,"^ The United States Supreme Court affirmed the decision of the Territorial Court of New Mexico, giving effect to the customary practice used In the execution of wills, rather than requiring strict obedience to a law which could not be followed. The territorial legislature approved the making of oral wills in the Laws of 1851-52 and the Laws of 1889. The 1915 codification admonished a testator to make his will In writing but declared a verbal will valid "on condition, that in either case they give it all the validity ;; possible, as well as the freeness of the will, the proof • It of soundness of mind and entire Judgment."1^ A verbal will was to be attested by the same number of witnesses required for a written one; the witnesses were to be able to testify that the deceased was in possession of sound mind and entire Judgment. These provisions were expressly repealed in the Laws of 1921. What we conceive to have been the main purpose of this act is very plain. It expressly repeals three of the foregoing sections which recognized the validity of so-called verbal wills. These were replaced by the new

^Ibld., p. 322. ^^In re Rledllnger's Will. 37 N.M. 18, I6 P.2d 549 (1932) p. 551.

X" requirement that "all wills. . . be reduced to writing and signed by the testator.H

Legal Technicalities Persons who purport to be witnesses to a will must be present, see the testator sign the will, or someone sign it for him at his request "as and for his last will and testament, and must sign as witnesses at his request in his presence and in the presence of each other." It is insufficient for a dying man to sign his will and then call in his witnesses to attest the "'' instrument. An attorney runs the risk that a testament j| il will not be executed properly if he fails to supervise j

• its execution. [ Certain restrictions as to who can be witnesses '" ' are established by law, and all persons who might become heirs under the will are disqualified. However a testator cannot disinherit a child or a descendant of a child by simply ignoring him. New Mexico*s pretermitted heir statute has probably given rise to more controversy than any other single provision in the New Mexico laws. That statute provides as follows: If any person make his last will and die, leaving a child or children, or descendants of such child or children, in case of their death.

^^Ibid. l^Statutes (1953) sec. 30-1-6.

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not named or provided for in such will, although bom after the making of such will, every such testator, so far as shall regard such child or children, or their descendants, , . , shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate; and the same shall be assigned to them, and all the other heirs, devisees, and legatees shall refund their proportional part.13 These are matters which can be of great importance since the court has carefully construed this statute for the benefit of a putative heir. The decision construes the statute to include any child who would have iniierited from an intestate parent, and any illegitimate child, who was t omitted from a father's will.^11+^ Th_. e sectio.....n is not appli. - ,« r j| cable where the child is mentioned but nothing is left to i I him under the will,-^^ but an adopted "child" is embraced within the meaning of the pretermission statute and ,J consequently inherits an intestate's share,1^ Authorization by a putative father that his name be inserted in a birth certificate is sufficient evidence to entitle the child to take an intestate's share if he is not named or provided for in the will. • Even if an

13ibid.. sec. 30-1-7. l^In re Gossett's Estate, [46 N.M. 3lil\-, 129 P.2d S6, 1[42 A.L.R. l[4[4l (19[42). ^^Mares v. Martinez, 54 N.M. 1, 212 P.2d 772 (1^149). l^Hahn v. Sorgen, 50 N.M. 83, 171 P.2d 308 (1946). ^^sanchez v. Torres, 35 N.M. 393, 298 P. 408 (1931). x:

121

executor is empowered to sell real estate under a will, he cannot divest a pretermitted heir of his interest, and the child can bring a suit to quiet the title or partition the land or both.18 The supreme court decision which gave rise to the greatest amount of controversy was that of Dunham v. Stitzberg, which involved the recognition of the interest of an heir at law of a pretermitted child who had actually entered her appearance in the probate of the will.^^ The case will be discussed in detail in the analysis of the jurisdiction of the probate court. A great deal of the difficulty which could arise from the pretermitted heir statute was prevented by the passage of a totally unrelated statute which amended the laws of descent and distribution in 1959 and 1961. Prior to the passage of those amendments, a husband's community property descended to his wife and his children if he did not make a will, and a pretermitted heir would inherit his share even though a will was made. The amendment provided that the wife would succeed to all the husband's community property in the absence of a will.2 0 The Supreme Court of New Mexico made the meaning of the statute even more binding in a case involving an adopted

^^Smith V. Steen, 20 N.M. 436, 150 P. 927 (1915). ^"^53 N.M. 81, 201 P.2d 1000 (19[48). ^Qstatutes (1953) sec. 29-1-9,

^ IF? daughter of a deceased grandson of a testator. The court held that the pretermitted heir had no interest in the testator's community property because the amendment to the statute on descent and distribution, giving all the community property to the wife upon the death of the husband without a will, has the effect of foreclosing pretermitted heirs from sharing in community property.^1 However, the pretermitted heir statute governed the rights of a child to property located in New Mexico even though the will was executed in Texas, which does not have the same kind of statute and where that state's law would not iJ '; •5» have recognized the child as being pretermitted.22 Quite j « obviously the pretermitted heir statute wil3 continue \ to govern cases in which a decedent left separate property but failed to name or provide for a child or the descendant of a child. The wife's community interest has never been affected by the pretermitted heir statute because the laws of descent and distribution have provided that upon her death the entire community property, without admini stration belongs to the surviving husband, except such

^^Lovington Nat. Bank v. Horton, 74 N.M. 513, 395 P.2d 235 (1964). ^^Price V. Johnson, 78 N.M, 123, 428 P,2d 978 (1967). 123 portion which may have been set aside to her by judicial decree, for her support and maintenance; the latter portion. In the absence of a will goes to her descendants, or heirs, exclusive of her husband, 3 The most unusual and contro versial feature of the provision Is that the wife has no right to make a testamentary disposition of her one-half interest in the community property,^^ In a will she can only dispose of her separate property and that property which has been set aside to her by Judicial decree. This section also results In a tax advantage when inheritance taxes are assessed upon the death the wife. The <; •I )i federal courts have ruled that while the death of the wife dissolves the community relationship. It does not result In a division or dlstrubance of the property in the community estate; therefore, the wife's Interest In community property Is not of such a character as to give rise, upon her death, to a federal estate tax measured by the value thereof,^^ The New Mexico Laws imposing a succession tax upon estates of deceased persons do not apply to community property

^^Statutes (1953) sec, 29-1-8, 24 Robblns v. United States, 5 F,2d 690 (1925), 269 U.S, 315. 70 L,ed, 285 (1926), ^^Hernandez v, Becker, 54 F.2d 542 (lOth Clr,, 1941); Sampson v, Welch, 23 F, Supp, 271 (1938); Hurley v. Hartley. 379 P.2d 205 (10th Clr., 1967).

^\ '*" im---

left by a wife who is survived by her husband.26 where the husband and wife died simultaneously in a common disaster, proceeds of a life insurance policy taken out by the husband naming the wife as beneficiary, and paid for by community income, are to be divided equally, one-half going to the heirs of the husband and one-half to the heirs of the wife, if no children survived them.27 The foregoing discussion reveals on.ly a glimpse of the problems Involved in the passing of property upon the death of the owner, and the law which governs probate matters in one state may have little applicability in another. New Mexico is particularly rir^h in a mixed | I a ciiltural heritage, but this very diversity is a source of ! complexity when a new set of laws is imposed on a society/, some of which has its roots, experiences and values derived from a country with a different background and laws. It should be obvious that one who is concerned with adjudi cating heirship needs to miderstand thoroughly this complex area of the law. Aside from the unusual status of the lax^r just described, additional concerns involve general laws of descent and distribution, the holding of hearings to prove

26in re Chaves Estate, 34 N.M. 258, 280 P. 241 (192^:). ^"^In jre Miller's Estates, li^i N.M. 2I4, 100 P.2d 908 (19[(.0)." The term "children" also Includes grandchildren, etc.

^ ,Sw:^ft"-' -

12^;

wills and to settle final accounts, the approval of disputed claims, giving an appropriate family allowance during administration, requiring prompt accounting and disposition of estates, approval of fees for executors, administrators and attorneys (here the court is given considerable discretion), the conduct of summary proceed ings, and the appointment of guardians for the persons and of the estates of minor children. For a better under standing of what is actually involved in New Mexico probate, a brief survey of procedures follows. 'f "I *i f It Laws of Descejit and Distribution ; 5» * " . i. When a person dies without a will, those entitled • to his property in any state are determined under the statutes on descent and distribution. Additional complications result in New Mexico, which has retained community ownership of property by marriage partners. Community property is common to many other states carved out of the territory originally occupied by Spain and Mexico. All property acquired during marriage by the joint efforts of the husband and wife is cor-imunity property.28 Before the 1959-61 amenciments to section 29-1-9 of the New Mexico Statutes, the community property interest of the wife was inherited by the husband without administration, but the .interest of the husband descended 28 Statutes (1953) sec. 57-U-l.

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to the wife only if there were no children. If there were children, the wife was entitled only to one-fourth of the husband's community and separate property and the children to three-fourths. While the wife has never had the power of testamentary disposition over her community property, the husband's power to dispose of his community interest, as well as his separate property has been unrestricted since early territorial days. Prior to the 1959 and 1961 amendments which provided that the wife would inherit all the husband's community property if he made no will, whether or not Jj there were children, a great deal of hardship often j « resulted when the husband died without a will. It was not only necessary that a personal representative be appointed a formal probate had to determine the heirs and those entitled to the property. If the children were minors, a guardianship proceeding was necessary for the purpose of managing and disposing of their property; that was very often at least as difficult and expensive as the probate. The smaller the estate, the greater the burden imposed by this requirement. No similar change has been made in the law of descent and distribution of separate property of the husband and wife. A wife may make a will to her separate property just as a husband may to both community and 127 separate property, but, if no will is left, separate property Is inherited one-fourth by the marriage partner and three-fourths by the children. There is no distinc tion in the laws of descent and distribution on the basis of ownership by the wife rather than by the husband if the property is separate property. If there are no children, then the spouse surviving would succeed to both community and separate property.29

Hearings and Notices Three notices are always required during the ;{ (,' process of probating a will and two notices in the process of administering an estate. No notice to heirs is

29 Statutes (1953) sec. 29-1-10 concerns separate property. This discussion is not meant to imply that the only way property can be held in New Mexico is as separate property and as community property. The statutes specif ically provide for other types of ownership such as joint tenancy and tenancy in common, but in order to hold property in this manner some specific, positive action must be taken such as making the proper provisions in a deed by which property is acquired. Small estates are sometimes held in joint tenancy with right of survivorship, and this enables the surviving partner to succeed to the jointly held property without a probate proceedings. It is necessary that the survivor pay the New Mexico succession taxes and any other inheritance or succession taxes which might be due. A simple application for, and receipt of, a waiver from the Bureau of Revenue fulfills the requirement for New Mexico taxes. Income tax advantages are available to those who succeed to community property when the estate is sizeable, so it is only considered advisable to take property as joint tenants if the value is relatively small.

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necessary when an administrator is appointed, but, when a will is offered for probate, a date must be set for a hearing to determine its validity, and a notice must be "served upon the heirs-at-law, the guardians of any such heirs who are minors, the executors, devisees, and legatees named in the will, so far as they are resident within the state, at least ten days before the hearing,"30 The notice must be published once a week for four consecu tive weeks, and the last publication must be at least three days before the date of the hearing on the will,31 If any of the interested parties are non-residents, a copy of the notice must be mailed to them at least ten days before the date of the hearing.32 There is a statutory provision requiring the appointment of a guardian ad litem to represent any minor or incompetent at the hearing on the will. At the hearing the judge "shall swear and examine" the witnesses to prove their signatu.res ,33 jf a witness is incapacited by sickness or age from attending or if he is out of the county, the judge may authorize the taking of his

3Qlbid., sec. 30-2-[^.. 3^Ibid. 32ibid., sec. 30-2-6. 33ibld., sec. 30-2-9.

.^.., ..J.' X" 129 deposition.34

The statutes make no other provision for the proving of a will, but neither of these two methods are often used in the practice of probate in New Mexico. Witnesses are almost never brought before the probate judge and sometimes not before the district judge sitting as probate judge, and the attorneys norraally do not have a reason to have depositions issued for the taking of testimony. The common practice is for the attorney for the estate to fill out a printed form of testimony which contains questions and answers which would be asked the ' t i witness if he were testifying before the judge. The | 11 witness signs the printed form, seldom even reading it, and his acknowledgement is taken by the attorney or his secretary or by the county clerk.3^ These are then filed in the case, along with the judge's order admitting the will, and become official transcripts of the testimony preserved in the records of the case. This practice is much easier than rounding up the witnesses and appearing with them at the appointed place on the appointed hour for proving the will, but there is no authority for evading the statutory requirement in this way. In

3^lbid., sec. 30-2-8. 35The practice before the probate courts in which attorneys have been recruited is much more similar to that found in the district court. 130 fairness, it must be admitted that the inferior status and qualifications of the court in some counties have doubt lessly contributed to the growth of this kind of lax practice. A lawyer is reluctant to bring a witness before a judge when it is obvious that the judge has little if any knowledge of the matters he is supposed to adjudicate. In all cases of probate, a notice is published advising the public in general that an executor or an administrator has been appointed and that anyone having claims against the estate of the decedent must file them within the time provided by law.36 The notice is published once a week for three weeks. The time limit within which a claim must be filed and approved for payment by the personal representative, or else called up for hearing before the judge. Is six months from the date of the first publication of the notice of appointment. The purpose of this, like other non-claim statutes is to set a definite time limit in order that the estate may be administered and distributed to those entitled to receive it. The New Mexico Supreme Court has, therefore, strictly construed the statute, holding that the require ments of that section are mandatory and that neither heirs nor administrator can waive them, nor can their conduct

3^lbid., sec. 31-1-23. NT

131

result in an estoppel which prevents the bar of the statute.37

Final Report and Closing When the estate is fully administered, it is the duty of the personal representative to file a final account and report. In that report the executor or administrator must give: ... a detailed statement of the amount of of money received and expended by him from whom received and to whom paid, and refer to the vouchers for such payments, ... and the amount of money and property, if any, remaining :if unexpended or appropriated.3o " The statute requires that the report contain the names and addresses of all the heirs, devisees and legatees, "as the same shall appear in the last will and testament of such decedent." The personal repre sentative verifies the account and files it with the court. The judge then sets a time for the hearing of objections to such final account and report, the settlement thereof, and for a hearing and determination of the heirship to said decedent, the ownership of his estate, and the interest of each respective claimant thereto or therein, and the persons entitled to the distribution there."39

^"^.In re Landers' Estate, 3k N.M. 431, 283 P. k"^ (1929). ^^Ibld., sec. 31-12-7.

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The statutes governing services of summons in civil actions also govern the requirements for service of the notice of hearing. Also that notice must be published "in some newspaper of general circulation in the county where said estate is being administered, said publication to be had in the same manner as now provided for the publication of notice of suit in civil actions,'-*-0

The notice must show whether the action is in the district or the probate court, must have the title of the case and be directed to all "heirs, legatees and '1,1 devisees, to all unknown heirs and to all unknown claim ants of interest." It must advise the day for hearing of objections to the report, the determination of heirship and ownership of the estate, the settlement of accounts.

^-l^^lbid. If there is any improper service of process, jurisdiction does not attach to the party improperly served, what is propei^ rervice of proce:.^s can be determined only by checking other statutes to discover what in adequate civil, personal and const-.ructive service of process. Any officer purpoi^tinf; to adjud'^rnte these matters will need to know this, GeneraJ legislation on service of process is found in sec, 21-1-1 of the New Mexico statutes. The requirement is ttiat personal service be made at least thirty days before a hearing is had and that constructive service can be made by the publication of the notice once a week for four weeks, plus the mailing of a copy to all known, non-residents. Hearing carjiot be ?iad in less than 20 days after the date of the last publication. It is difficult to plan to have a hearing and close an estate ir. less than two months. Requirements for publication of notice are found in section 10-2-10 of the New Mexico statutes. I

133

and "the Interest of each respective claimant thereto or therein, and the persons entitled to the distribution thereof; together with the name and post office address of 41 the attorney of said executor or administrator. , , , On the date of the hearing, the court either allows or disallows "the final account, either In whole or in part, , , , and proceeds to determine the various claims of heirship, ownership, or Interest in the estate, , , ," 42 The decree entered by the court Is final and conclusive, but appeals may be made "In the manner now provided by law,"^3

Although attorneys handling estates seldom bring the heirs or personal representative Into court to be sworn and to testify concerning the matters set forth In the final account, that procedure would be a wise practice. Neither the attorney's interrogation In his office nor the personal representative's verification of his final account

41•^Ibld , 42 Ibid,, sec, 31-12-12, •^Ibld, The time limitation for appeals Is ninety days, and the procedure Is subject to the same restrictions as In cases which are appealed from the district court to the supreme court. Sees, 16-4-8 and 16-4-20, New Mexico Statutes Annotated (1953), If It is contemplated that controversies or disputes concerning the rights of persons interested in the estate will arise and will cause an appeal to the district court, then an interested person may petition the removal of the estate from the probate to the district court If the value of the estate exceeds $2,000,00,

X ^ \ 13'l and report will elicit pertinent information which witnesses will sometimes reveal under oath before a iudge.•

Much criticism of probate requirements revolves around the length of time required to administer and close an estate. If an estate is large enough to be subject to the United States Inheritance Tax Laws, attorneys find it wise to take the advantage of a choice of the time for appraising the estate. The value may be more or less at the time of death than it is a year later, and this determines the base for the computation of federal taxes. However, estates with a smaller net value than $60,000 are I not subject to federal estate taxes, and in New Mexico the 1 value of the community property can be as much as ^'120,000 before the estate is subject to federal taxes, since the deceased husband's one-half is all that pastes upon his death. A great majority of decedent's estates are, therefore, not within the purview of the federal

W+witnesses have been knowi to reveal for the first time in their testimony on final hearinp that there were also daughters of the decedent who were not previously mentioned because they had not been considered "heirs." It is here that, for the first time, i^^^ormation concerning a pretermitted heir may be brought to light. While there is a "hearing" on the proof of a will, the "hearing" on a final account is the only formal coiu't proceedings always contemplated in the admin Li^tration of an intestate estate. XJ

IV}

inheritance taxes.45

The requirements of the non-claim statute, P^ivinr six months from the date of the first publication of the notice of appointment of a personal representative, sets an absolute minimum time required to administer fully an estate in Nev; Mexico. The common practice is to file a final account and report soon after the expiration of that six-month statutory period if the estate is simple and all claims can be and are paid. As indicated, the hearing on the final account and report can hardly be had in less vt than two months after the report is filed: but, if t^e ,J,

decedent left an estate which had been well managed and | which contained good records and if there was adequate personal property for the payment of al] preferred claims,'^" it is possible for the estate to be fully administered in less than six months, '['her\ a final accounting can be filed some time before the six months has expired and a date for hearing set sometime after tho

45The Nev; Mexico Succession Tax I3 a much smaller assessment and has a smaller exemption, but prompt filinf^ of inventories and warrants to appraisers usually insui'e the receipt of a certification from the bureau of Hevenue within the six-month period. ^Preferred claims are those which are paid v/hether or not the assets of the estate are adequate to pay nil debts and include expenses of last illness, funeral expenses, cost of administration, and six months allowance for widow and children, sees. 31-8-10 and 31-10-2, New Mexico, Statutes Annotat_ed (1^J'.3). 136 expiration date. The report, of course, sets out the fact that less than six months has expired but states that the date for hearing will be sometime after the expiration date of the non-ciaim period. When an estate is that simple it Is the efficients practice to close it In the manner outlined—a totai of not much more than six months from the time the action is inltated. Should an unforeseen difficulty arise, the hearing can be contined from time to time, but attorneys would not attempt this speedy administration if there were any reason to believe that problems might arise.

Claims Against the Estate— Allowance and Payment One of the purposes of probating an estate Is to establish the legitimate debts left by the decedent and to make arrangements for their payment. As previously noted, any creditor must file a claim within six months of the first publication of a notice of appointment of the personal representative. Otherwise, his claim is barred by law, and the executor would be liable to the 47 heirs for this amount If he paid it out of the estate, ' It Is the duty of the probate Judge to hear and determine these claims J the statute is mandatory. No interested party in the estate can waive these requirements, and

''ibid,, sec, 31-8-2, 137

estoppel is not available to a claimant If he failed to file a claim because he relied on the statements or conduct of others interested In the estate. The New Mexico Statutes also proviae that, if the claims against the decedent are not expressly admitted by the personal representative, they shall be considered denied without the necessity of any pleading on the part of the person representing the estate. Either the claimant or the personal representative may appeal from an adverse decision to the district court, but that appeal must be made within six months of the decision and must also come within the time limit of twelve months from the date of the first publication of the notice of appointment,^ It is not uncommon for a claimant to file his claim personally, fall to have it approved or called up for hearing within the required time, and, therefore, to have his debt barred by law. This can happen, not necessarily by any person's conscious design, but simply because no one concerned with the estate was aware of the filing of the claim. In a section entitled "preferred claims" It Is provided that personal representatives should pay all the charges of the last sickness and funeral of the deceased

^^McBeath v. Champion, 55 N.M, 114, 227 P.2d 625 (1951) 49 Statutes, sec, 31-8-5*

k<^' /- X 138 and "any allowance which may be made by the court as provided by law for the maintenance of the widow and children,"^ The next order of preference of claims against the estate is as follows 1 claims entitled to preference because of the laws of New Mexico or the United States, 51 taxes, and all other debts, and then legacies. Expenses of administration include, not only court costs and publication fees, but any fees allowed the administrator or executor,-^*5 2 the attorney for the estate, and the guardian ad litem, if it has been necessary to appoint one, A provision for a widow's and children's allowance Is set out In a completely separate article, even though It Is In the nature of a preferred claim. The allowance is largely a matter of discretion for the probate court since the statute provides that "the court shall. If necessary," make the allowance,-^^ If the court Is to make

^"ibld,, sec, 31-8-10, Ibid,, sec, 31-8-11, The court may reclassify a Claim as a third-class claim after classifying it as a preferred claim. In re Field's Estate, 40 N.M, ^23, 60 P. 2d 945 (193677 ^^Any one who furnishes funds to an executor for his use in caring for the estate stands in the same oraer of preference for his claim as would the executors, Perez v, Gil's Estate, 29 N,M, 313, 222 P, 906, 35 AL.L.R. 43 (1924). ^^Statutes (1953) sec. 31-^-1. 139 a knowledgeable decision, it must be apprised of the needs of the surviving widow and the children, as well as what claims can be expected to be filed, and whether or not the assets are sufficient to pay the claims. The widow does not have a right to appropriate the husband's estate for the maintenance of fanily without an allowance from the court.54

F^es: Attorneys, Executors and Accountants One source of criticism of probate practice is the fee charged by attorneys. Even legal authorities recognize this but say that the work required usually warrants the fee. In New Mexico the fee allowed an attorney is established by statute as "the same amo\mt as is fixed by law as compensation for executors and administrators for their own services, unless such attorney's fees be otherwise fixed by the court upon a showing of proper cause therefor."^^ The compensation to which an executor or adminis trator is entitled is ten per cent of the first $3,000 and five per cent of sums in excess of $3,000 upon property which comes into their hands. However, if the property consists of life insurance policies or cash (including

^^White v. Mayo, 31 N.M. 366, 2k6 P. 910 (1926).

Statutes (1953), sec. 31-10-[|..

/-" XI

140

checking accounts, time deposits, certificates of deposit, savings acco\ints, postal savings certificates and United States savings bonds), the compensation shall not exceed five per cent of the first $5,000, and one per cent of all amounts in excess of $5,000, There is no allowance for real property which is part of the estate, unless it is allowed by the court upon proper showing by the personal representative,56 The sum deductible from the estate when determining the amount of succession taxes cannot be in excess of that allowed under the statute. « Under this statute the judge is given a great deal ( of discretion in determining whether or not services performed warrant a fee greater than that which can be computed under the guidelines of the statute, and it is contemplated that the efforts of the executor will be the measuring stick for the efforts required of the attorney. In many estates, it is necessary to request a fee greater than that allov;ed by the statutes because it is the value of real property and the establislirnont of a record title that often requires a probate proceeding. In a typical case, very little is required of the executor or the administrator except the signing of his name where it is required on the instruments which the attorney files in the case. The burden of seeing that the pr>ceedinga are

^^^Ibid,, sec. 31-10-1.

N 141 properly conducted and the estate adequately cared for very often falls upon the attorney. If an estate is comparatively large, some executors, on the advice of their attorneys, employ an accountant to draw up a balance sheet of the assets and file the necessary federal inheritance tax forms. Often the fee charged by the accountant will equal that charged by the attorney, and may be more at times. Critical literature does not find fault with either the fees charged by personal repre sentatives or by accountants.5^ An attorney who has studied problems of estate f f planning and inheritance taxes can sometimes perform the i services which might otherwise require the hiring of an accountant. In this manner the atto.rney performs the legal services, directs the administering of the estate and does the estate tax work all for tho fee allowed him under the statute.

"MD1 wM - m^mii^-^mixmtm -^^Bloom, "Time to Clean Up Our Probate Courts," and Dacey, How t£ Avoid Probate. Mr. Dacey wrote his book after having been enJoTned from the practice of law because he advertised his firm as qualified to do estate planning; he is an accountant. See Boyd H* Anderson, Jr., "How to Avoid Trouble," The Florid^ Bar Journal, XLI (March, 1967) pp- 158-68, and Barbara K, "Lundergan, "Thoughts on Mr. Dacey's Book," Ullnois Bar Journal,, LV (November, 1966) pp. 220-^5.

/-^ 1U2

Transfers Without Adriinistration and Surrmiary Administration The Uniform Probate Code adopted by the American Bar Association in 1969 has as one of its primary aims the establishment of a variety of flexible procedures for the administration of estates. One of the concerns is that there is often only one way of transferring property upon the death of the owner, and that is through the long, involved and expensive resort to probate. In New Mexico, since 19[45 there has been a form of relief afforded heirs in collecting sums owed the deceased as wages by any "corporation, copartnership, association, individual bank or trust company. "^^ The statute also irr-ovided that husband, wife, or next of kin could collect "any sum which said deceased may have left on deposit with a bank or trust company, or corporation, individual or firm doing business as bankers, . ." The maximum amount allowed under the statute was three hundred dollars. The surviving spouse or next of kin of any deceased person may, without procuring letters of admini stration, collect any sum not exceeding two thousand dollars owed the deceased at the time of his death for wages or salary from the state or any of its political subdivisions, or from any corporation, copartnership, association, individual, bank or trust company.59

SQ Ibid., sec. 31-13-1. 59Ibid ,

/^ ^\ V.

11+3

In addition the statute, as amended, provided

that the spouse or next of kin of a deceased depositor

may collect the deposit as provided in the Banking Act.^^

That act authorized a bank, at its discretion and at any

time after the death of the depositor, to pay out his

accounts not in excess of $2,000: to the surviving

spouse; or to the next of kin, "in the above order of

priority in the case of conflicting claims:'^^ The act

also provided for the release of such funds .o foreign

executors or administrators at any time after sixty days

from the death of the depositor. Banks are released

from liability for "damage, penalty, tax or claims of

creditors of the estate by reason of any pa;yment or

refusal to pay made pursuant to this section.""2

The statutes required that an affidavit be given

by the surviving spouse or next of kin concerning the

death of the employee or depositor and the heirship

of the affidavit. The making of a false affidavit is

perjury and the punishment is as provided for by law for

that crime. Notice to the Bureau of Revenue of payments

^Qlbid,, sec. 31-13-3. ^^Ibid., sec. [48-22-8.

^^Ibid.. sec. [|8-22-2 defines "bank" to mean "any person doing a general banking business whether subject to the laws of this or any other jurisdiction," Specific definitions are given of "state bank," "commercial bank," and "savings bank."

...... ^M^' /- x:

1W+

made under these statutes is not required,63 The New Mexico statutes also provide for a summary administration of small estates consisting of personal property. An application can be made to the court for the appointment of an administrator; the request is made under oath and is accompanied by an inventory of the estate appraised at its full value by one or more disinterested persons in the county.^ It is the duty of the judge to make whatever investigation he deems necessary. He may grant the administration of the estate if there is "a surviving spouse, child or children, lawful issue of a deceased child, parent, brother or sister; . . ."if there is no real estate left and if the total value of the estate is not more than $3,000,"5 Whenever the court is satisfied that the funeral expenses have been paid and the balance of the estate has been transferred to those entitled to it, the administrator may be discharged "without further notice or accounting,"^^ Prior to the 1965 amendment a surety bond was required of the administrator "conditioned for the payment

63 Ibid., sec. 31-13-2 through 31-13-5, as amended. ^Ibid., sec. 31-lA-l. ^^Ibid.. sec. 31-1A-2.

Ibid., sec. 31-1A-3.

•=«efv 1/4.5 of funeral expenses of said decedent within one year from the date of death." ' In some circles the statute then acquired the stigma of legislation passed for the benefit of morticians rather than for the purpose of simplification of the passing of small estates upon the death of the owner. The fact that the claim of the funeral home was the only one for which a receipt was necessary before a summary administration could be closed reinforced the suspicion. Under the provisions of the statutes just discussed and those providing for transfer without administration, it is possible for the spouse or next of kin to succeed to as much as $7,000 in personal property, wages and bank deposits without the necessity of a complete administration in New Mexico. The sum would be larger if a maximiam of $2,000 were left in more than one banking institution. There does not appear to be a limit on the number of institutions which may pay deposits to the surviving spouse or next of kin.

Alienation of Real Property A probate court has very limited powers with regard to the sale or enc\Jttnbrance of real property.

^^ibid., sec. 31-1-30.

y~ 146

Included among those powers are: the ratification of actions taken by an executor pursuant to the provisions of a will; the approval of payments due on real estate;^^ and directing the relinquishment of an interest the decedent had in real estate when the relinquishment seems advantageous to the estate."^ If an outright sale of real estate is deemed advantageous to the estate and there is no will provision authorizing the alienation of real property, only the district court is empowered to make the necessary findings and order.70 jf administration is pending in the district court, the petition for sale may be filed there; otherwise a separate action must be brought in that court.71 If the personal property is insufficient to pay the debts of the decedent, resort may be had to the real estate, which may be sold, leased or mortgaged to raise the necessary funds to pay all claims due. If there is no will or if the will does not authorize this kind of sale, then only the district court can take jurisdiction to determine the necessity of disposing of

^Îbid., sec. 31-7-4. ^Îbid., sec. 31-7-5. "^Îbid., sec. 31-7-11. '^Îbid., sec. 31-7-12. fr-

147

the real estate and ordering that disposition.^^ The statutes set out the requirements for a petition and provide for the service of process on those who are entitled to a notice of the proposed sale. The district court has the duty of establishing the te.rms of sale and approving the sale before the conveyance is considered final. If the court approves the report, the executor or administrator then executes an Instrument of conveyance.'3

Great care is taken to establish an exact procedure for the alienation of real estate when the property is a part of an estate being probated. The District Court has exclusive jurisdiction.'^

Jurisdiction Over the Person and EsTBate of Min'or'THlldren Much of the New Mexico Code concerning the guard ianship of minor children can be traced to the Kearney Code. The laws still give the probate court wide authority and discretion, in spite of the fact that more

7^Ibid., sec. 31-7-li-l-. 73ibid., sees. 31-7-15 through 31-7-28. 7^his is in marked contrast to the procedure for the alienation of real property of a minor, where both the district court and the probate court have jurisdiction.

• U.ll.l.JUL'v Ii4 8 recent statutes concerning the leasinn; of property belonging to the minor require an action in the district court. The probate courts have power to appoint guardians for minors when they own property or if the appointment is necessary for the welfare of the child. Then control and superintendence of guardians and wards is in the probate court and the guardianship continues until the ward is twenty-one years old.75 in addition, the probate court is given power to appoint guardians for idiots or illegitimate children or children whose relatives are unable to support them or whose father has been imprisoned for an infamous crime.76 Although the parents are the natiiral guardians of a child, the court decides whether or not the person who petitions for the appointment is a fit person to have custody of the child. This may be anyone who is not a probably heir at law of the child. Heirs at law who may be appointed as guardian are, of course, the parents or grandparents of the child. The powers of a guardian are extensive, including: the care of the person of the ward, and the possess ion and management of his estate, ... to sue for all debts, rents, accounts and property, real and

7^Ibid., sec. 32-1-7. 76ibid., sec. 32-1-8. Until 19[4l the court also has Jurisdiction in adoption proceedings. 149o

personal, due and belonging to the ward; and to sell, under the direction of the court, the personal property of the ward.77 The statutes provide for the leasing of the property of the wards for oil and gas development, the term of the lease, and the form for a petition for authority to lease; but this procedure is subject to the jurisdiction of the district court only. Although the outright sale of property is a greater alienation of the ward's property than a lease, either the district court or the probate court can assume jurisdiction of this proceeding.78 if there is no general guardian appointed of a minor's estate, a proceeding may be had in either court for the sale of the property. Any person appointed to make a sale of the minor's property must give a bond conditioned on his faithful performance as guardian, but all transfers of the guardian in good faith are valid and effectual, "and any guardian shall be permitted to sue and defend, as such, for his ward; . . ."'"

The distinction between the authority of the probate court in directing the sale of real estate of

77ibicl., sec. 32-1-17. 7Qlbid., sec. 32-1-20, as amended. 79ibid., sees. 32-1-31 and 32-1-35. If personal sureties are given, the bond must be twice the value of the property, and, if a corporate surety is used, it must be ten per cent more than the value of the property.

TSPv i^-:o minors and that of decedents' estates has no rational explanation. Besides the jurisdiction over the sale of a ward's real and personal property, the court has the discretion to determine the amount of the principle which the guardian can use for the "maintenance and education of the ward."^° Since 1935 the laws of New Mexico have allowed any interested person to make application in the district court for the removal of a guardianship matter to the district court. The judge can issue an order directing the probate clerk to transfer all of the records in the case to the district court. Thereafter that court has authority to "supervise said guardianship as in the case of other guardianships under the supervision of the

Q-i district court." The act includes friends, relatives, guardians, or any person making a gift to the minor's estate as interested parties who may request the removal of the case to the district court.

^^Ibid., sec. 32-1-32. The guardian can spend any of the income without court authorization. Unless some precaution is taken, such as requiring counter signatures, the guardian may take the assets and leave the state. The corporation writing a surety bond feels the court should release it from obligation under the bond when the yearly premiums are no longer paid. There is no provision for releasing the surety under these circumstances. ^^Ibid., sec. 32-l-[43. 151

A separate statute gives the district court concurrent jurisdiction to appoint a guardian of the person or estate of a minor.^^ The preference of the parties bringing the action and of their attorney will govern whether the probate court or the court of general trial jurisdiction supervises the guardianship. The annotations to the statutes do not show that there have been many appeals to the supreme court of cases concerning the person or the estate of minor children. The foregoing examples of requirements in the administration of estates have been developed to protect people interested in the estates of deceased persons or minor children. The prevailing idea is that all estates should be subject to formal administration and that, once a proceeding is begun, all the formal steps must be taken before it is fully administered and ready to be closed. The only exception is the estate which includes property of small value and includes no real property. As will be discussed in the next chapter, efforts have been made by the New Mexico legislature and by the New Mexico Supreme Court to allow (or require) the administration of important (valuable) estates by the district court. Judges in those courts are required by law to be qualified to make the kind of technical

Q2ibid.. sec. 32-l-[45.

^s 152

decisions necessary to performing the fimction of adjucation in probate court.

[V f ^ m^

/^ Wr-^

CHAPTER VII

EFFORTS AT REFORM AND THE IMPACT ON THE PROBATE COURTS

Concurrent Jurisdiction of District Courts The district courts In New Mexico have original jurisdiction In ail matters not excepted In the constitu tion, and the legislature gave the district courts specific concurrent powers of probate matters which arise in their respective districts. Probate powers were In addition to the existing Jurisdiction of the district courts and concerned all matters which had been within the exclusive jurisdiction of the probate courts. The said district courts, as a part of their general Jurisdiction shall have power to determine heirship In any probate or administra tion proceedings, whether such proceeding originates in said court or has been transferred thereto under the provisions of the various statutes relating to such matters. The district courts also have appellate Jurisdiction In all of the cases which originate in any lower courts In their respective districts. Of course, the lower courts

•""New Mexico, Statutes Annotated (1953) sec. 16-3-20. 2. Ibid.

153 isl include probate courts, and those appeals are tried die novo.3 The trend has been to limit the jurisdiction of the probate court through the decisions of the supreme court,M- and the same limitations have been applied to the concurrent jurisdiction of the district court when it is hearing probate matters. The limita tions include the traditional restrictions against the exercise of common law or chancery jurisdlction.5 The supreme court's interpretation of the 19[4l statute, giving concurrent probate jurisdiction to the district courts, has been equally restrictive. The poviers of the district court sitting in a probate matter are limited to those granted to the probate court, and, when hearing probate matters, the district court cannot take

3New Mexico, Constitution, art. VI, sec. 13. ^Arie Poldervaart, New Mexico ?robate Manual (Albuquerque: University of New Mexico Press, 1961) p. 2. ^Perea v, Barela, 6 N.M. 239, 27 P. 507 (1891), In one Instance prior to the passage of the statute adding original probate jurisdiction to that previously held by the district court, the supreme court interpreted one statute more broadly. The court held that the district court could exercise chancery powers when warranted by the pleadings in a case rem.oved from the probate court in accordance with the 1*^29 lep^islation allowing removals to the district court of probate matters when the property involved was valued at $2,000 or more. In re Sheley's Estate, 35 N.M. 358, 298 P. 9[42 (1931)7" ~

^s V

15S'

jurisdiction to decide any issue it could otherwise adjudicate.^ Neither the probate court nor the district court sitting as probate can interpret or construe a property settlement,7 nor can either determine the validity of a surviving widow's claim to the ownership of an undivided one-half interest in the decedent's estate,^ Since the district court has exclusive jui'isdiction to determine whether property, real or personal, is a part of the assets of a decedent's estate or belongs to someone who claims adversely to the estate, neither the probate court nor the district court, sitting in probate, has jurisdiction to determine title to real or personal property.9 The legalistic rationalization neatly categorizes powers in a traditional manner but must seem strange to those who are not familiar with the background of probate courts.

The question of the validity of the statute piving concurrent jurisdiction to the district court was raised in the case of In r^ Hickok's Will.^^ The supreme

court decided that article VI, section 23, of the

^In re Ward's Estate, 47 N.M. SS, 134 P.2d 539, 146 A.L.R. 82^ (19[43). 7swayze v. Bartlett, 58 N.M, 504, 273 P.2d 367 il95k). ^Conley v, Quinn, 58 N.M. 771, 27^ P.2d 906 (1954). ^Ibid, ^°6l N.M, 20I4, 291 P.2d 866 (19'^6). m

':h

Gonstitution did not confer exclusive juris.) *.?.tion on the probate courts and that the words in the Constitution "until otherwise provided by law," meant that the legis lature could modify or change that jurisdiction. The Constitution did not confine the legislaturo either to removing entirely the jurisdiction of the probate court or to making no change at all; rather the legislature had power to make the change of also confer/ ing jurisdiction on the district court to hear probate cases. In 1968 the legislature passed another statute which is placed in the probate code and which reaffirms the concurrent jurisdiction of the district court. In addition to other jurisdiction, the district courts have concurrent jurisdiction with the probate courts in each county with.:.a their respective judicial districts as to all matters within the jurisdiction of the probate courts. As a part of their general jurisdiction, the district courts may determine heirship in any probate or administration proceedings, whether the proceeding originates in the district court or has been transferred thereto under provisions of law.l^

Confusion in Probate Jurisdiction An authority on New Mexico probate courts has written: The constitutional provisions ref^ardlnp probate court jurisdiction contains some specific

^-^Nevi Mexico, Statutes -\nnjrtated (19'"^3) sec, 30-2-2[4, K^^ ^ .^~"

1^7

limitations. The most important limitation to be noted is that since 191^9 the probate court has power to determine heirship with respect to real estate as well as personalty in all proceedinrrs for the administration of decedents' estates, but probate court jurisdiction does not extend to other matters wherein the title or boundaries to land may be in dispute or dravjn in question,^- For a short time before the 19h'^ constitutional amendment, the extent of the jurisdiction of probate courts was very uncerta.in, and the amendment was passed in an attempt to settle a disruptive issue. The likeli hood was, unless the probate court had .'urisdiction to determine heirship with respect to real estate, then no one had during miach of the history of the territory and the state.

The impasse was the result of an ^onusual decision of the Supreme Court of New Mexico. The decision concerned limitations of the powers of the probate courts over decedent's estates. The languac^e of the decision Indicated a desire to motivate the New Mexico legislature to amend the statutes so that onlv courts learned in the law could take jurisdiction of estates which included real property. If the judge is "expected to accept the existing state of the law when it is clear, unless it is

Arle W, Poldervarirt, New Mexico Probate Manua^l (Albuquerque: University of New Mexico Press, 196lT~ P. 3.

^\ V

1 '-i)<

positively unsatisfactory, "^3 the .iudn;es on the New Mexico Supreme Court found the state of probate court jurisdiction positively unsatisfactory. In Dunham v. Stitzberg-^4 the court acted as a lawmaker and set out gu.idelines for legislative action establishing exclusive jurisdiction in the district courts when the probate of an estate involved real property.

The impact of the Stitzberg decision was greatest in its effect on all businesses or individuals concerned with titles to property. The reaction of the legislature was exactly contrary to the guidelines th<^ supreme court had given. When the 19[40 amendment v/as adopted, juris diction was clearly established in the probate court to determine heirship in cases involving realty. The amendment did erase the possibility that the title to real estate, which had been subject to a probate court proceedings, would be called into question by examining attorneys. The 1948 decision attempted to establish the principle that exclusive jurisdiction in a probate case, which involved real property, rested in the district

^3Martin Shapiro, The Supreme Court and Adminis trative Agencies (New York: The Free PressT 1%^TTT3^> 141-5 cr 3 N.M. 81, 201 P.2d 1000 (1^^48).

X x:

15^

court. For a time the effect of that decision was to unsettle and cloud the titles to virtually all real property within the state. Attorneys interpreted the meaning of Dunham v. Stitzberg 15 in different ways. Often an examiner of a title would summarily demand that a suit to quiet the title to real property be initiated whenever a seller's chain of title depended on the determination of heirship in a probate proceeding, which was conducted in a regular probate court.1" The supreme court did not have this result in mind because the decision recognizes the argument with the matter of fact statement that, although title examiners had depended on these probate decrees and some titles might be affected, "it is not probable that there will be many such cases,"17 The rationale behind the court's decision was revealed in some of its closing remarks when the court said that it was a matter of common knowledge that probate proceedings are ex parte; "that probate judges in this state are, with few exceptions, not lawyers.

15Ibid . l^It should be remembered that until 1941 only probate courts had original jurisdiction in these cases. 17lbid,, p, 1014. (At the time of this decision the writer was" active in the New Mexico Bar and working in an area in which the examination of titles to real property was very important.) ^¥i

160

and many are ignorant and not fitted for the office."!^ Taking judicial notice of the common customs, the court continued its analysis by saying that the judges often sign prepared orders and decrees without reading; or if read, then without understanding their import. "If in fact these courts had the jurisdiction asserted, it would be exercised in most cases without any real trial to determine the fact of heirship."1^

The court said further that this was the reason the legislature had authorized the removal of all proceedings to the district court for administration, where the value of the estate was more than $2,000. Then it counseled the legislature to enact a statute which would authorize district courts to "determine heirship in all cases wherein real estate is left by decedents. . ,"20 In Diinham v. Stitzberg^-^ the claim was not being made by a child of the decedent but by the child's surviving husband. The basis of the contest was that, since she was a pretermitted child, she could not have been considered an interested person in the probate

l^Ibid.

^'^Ib^id.

^Qlbid.

^^Ibid. 161 proceedings and could not, therefore, be barred by that decision.22 Since her surviving husband had inherited any title she possessed, he likewise would not be barred. In the original probate the children of the deceased had accepted service of the notice of the proving of the will and consented to its probate. Their mother, who was the sole beneficiarv, was appointed executrix of the will, conducted the administration of the estate, and filed her final report. The children waived service of tine notice of this hearing and agreed that the hearing could be held at any time. The order of the court approving the final account and report stated that the widow was the only beneficiary under the will of the decedent and that she Inherited all of his real and personal property. The final report was, therefore, approved, the estate closed, and the executrix released and discharged. ^ The court emphasized the legal distinction between the passage of personal property to personal representa tives and the passage of real property directly to an heir

22The pretermitted heir statute has been discussed; it establishes the right of a child or children, or descendant of a child or children, not named or provided for in a will, to claim that portion of a decedent's estate to which such child or children would have been entitled had the parent died intestate.

^^Stitzberg, p, 1003.

^ Wff^

162

of a decedent. The decision cited the New Mexico Constitution to the effect that probate courts were to have all Jurisdiction theretofore exercised by them as territorial courts. The New Mexico statutes were quoted, including the 19[4l amendment giving the district courts concurrent j'lrisdiction over probate anvd other matters. The court also pointed out the fact that the legislature had not conferred general civil and criminal jurisdiction upon the probate courts and that the legislature's power to do so was limited by the Constitution, The coiu?t was sure, however, that it was not intended by the Constitution to freeze the jurisdiction of probate courts. The legislatures could change, limit, or extend the jurisdiction of probate courts over all matters which by nature and the English law are ordinarily classed as being within the jurisdiction of probate courts. In this manner the court ignored other precedents and relied on the interpretations of the English common law, to the exclusion of the Spanish and Mexican law which are also basic to the legal system in New Mexico. In territorial days it had been established that when the common law had been adopted as the basis of jurisprudence, the statute law was not repealed, but only so much of the common law was adopted as was not in ^^T ^

163

conflict with the statute. The common law was that of New Mexico since each state adopts such parts as are suitable and desirable.2^1- Even ignoring the precedents in New Mexico cases, in Stitzberg25 the court could only arrive at its conclusion by invoking the above mentioned well-known common law principle which distinguishes the descent and distribution of real property from personalty. A special point was made of the fact that district courts have constitutional jurisdiction in "matters and causes not excepted in the constitution,"26 but little weight was given to laws which would have brought the court to a different conclusion in the case. Two of these the court merely mentioned. First, the probate court under the Constitution was established as a court of record and was given the same jurisdiction of probate courts in the Territory of New Mexico, with certain exceptions, such as matters "wherein the title or boundaries of land may be in dispute or drawn in question,"27 Also the statutes of New Mexico then limit the right to "reopen or set aside

2^ment V. Thompson, 5 N,M. 408, 23 P. 234 (l890), ^%3 N.M. 81, 201 P. 2d 100 (1948). 2^Ibid., p. 1005. ^'^Ibid., p. 1006, ,6ii any order, judgment or decree" to circumstances in w>iich appeal was taken to the district court in the manner prescribed by law.28

Until 1941, when the legislature gave the district court concurrent jurisdiction with the probate court in New Mexico, the probate court had exclusive original jurisdiction in those matters.29 Jince the original probate in the Stitzberg case was initiatf^a in 1932, the question arose concerning whether or not the Constitution had excepted probate jurisdiction from that exercised by the district court. The supreme court passed off this query with the statement that it was interesting, but the court did not find it necessary to pass upon that question.30

Then the court made clear that the basis of its decision would change from that of prior cases: The legislatures can change, limit, or extend, the jurisdiction of probate courts over matters which, by the Enj^lish law and general hirispru- dence of this country, are from their nature ordinarily classed as being within the jurisdiction of probate court,31

2Qlbid, 29wew Mexico, Constitution, art, VI, sec. 23. 30stitzberg, p. IOO7. 31lbid,, p, 1007, (italics, pdd^^d). IhX,

The Constitution confers upon each district coui^t "exclusive original jurisdiction" of any matter wherein the title or boiAndary of land may be in dispute or drawn in question.32

At this point, the court still had two hurdles to overcome: the fact that the daughter had entered her appearance in the original probate of the will and that the statute specifically stated that probate court had jurisdiction to approve the final report and to order distribution of the estate. The final decree of the probate court was conclusive,33

The decision conceded that the probate court had jurisdiction to determine the heirship and ownership of estates of deceased persons, but held that "under the English law as it was at the date of our separation from England, real estate descended directly to the heirs, and devises were contested in actions of ejectment,"34 Although admitting that the jurisdiction of probate courts had been much broadened, the court held that the general rule of Bi^glish law of descent and distribution of real property still continued in New Mexico, "In this state real property not only descends directly to the

^^Ibid. ^3ibid., p. 1009, ^^Ibid., p. 1008. *^#»—

l^h heirs or devisees, but the probate courts have no jurisdiction over it."35

In a masterpiece of rationalization the court concluded that the decree provided for in the New Mexico statutes was only intended to effect a distribution of personal property of the estate among tho heirs, legatees and devisees; that the word "estate" as used in the state had reference to the estate over which the probate court is given jurisdiction, to wit: the personal property, and the real property descends directly to the heirs, , , that in no way affects any claim of title of a stmager to the estate, or to the real property that descends to the heirs,36 The immediate question may be asked: how can the supreme court reach this conclusion when the probate court is given the power to determine the heirs of a decedent, and this naturally would determine those to whom property would go under the laws of descent and distribution. Therefore, why not leave it at that and simply say that in the particular Instance a pretermitted heir has not been barred to claim a portion of the decedent's estate? Or even more rationally: this was a pretermitted heir, but by her actions she has shown her consent that her mother take all her father's property

3?Ibld, 3^Ibid., p. 1009. *-F-,^

1^•7

under his will, and moreover, she and her heirs are estooped in their claims since she waived service of notice, filed no answer, statement or claim of any character, made no claim of heirship or interest in the estate and filed no protest, contest, or ob/ection to the probate of the will or to the final order of the court although she was a party to the proceedings. To answer these questions the Supreme Court of New Mexico resorted to an extreme type of legalism: (1) The probate of a will is an action in rem, the court taking jurisdiction of the scriot purporting the will; and (2) the daughter never appeared in the action, having waived service of notice onlv, "She could not contest the will because she was not a 'person interested,'"37

After saying that the case could be disposed of on the questions just mentioned, the court went on to say that a question of great public interest existed which was argued in the briefs and the court felt it should be considered. The question was whether a judicial determination of who constitute the heirs at law of a deceased person in a proceeding in the probate court so conclusively settles such facts that they become pes judicata. Was the probate decree conclusive and

^'^Ibid., p, 1010, p-,/.•^^K?-^"^-

168

binding on the district coui»t in any later suit which involved the title to real property? The court decided that the fact that the New Mexico Probate Court must distribute the personal property in the estate gives it the implied authority to determine the heirs of the deceased persons even though the pov;er is granted specifically under the st8tute--but that this does not affect the right to real property over which the court has no jurisdiction. After discussing the lav; in two other states, the court said: A diligent search has been made by us, and we have found no case, and counsel have cited none, which holds that a determination of heirship by a probate court affects any property except that over which that court has jurisdiction with power of distribution to heirs and devisees,38 The conclusion then was that the probate courts in New Mexico exhausted their powers in making distribu tion of personal property. We conclude that the determination of heirship in a judgment or decree of a probate court, as a fact or status, is not conclusion upon the district court if such a fact or status becomes an issue in a suit or action in the district court involving title to real property,39 In tho Sj^JLtzb^f: case the Supreme Court of New Mexico ignored long settled precedent, and relied on

38ibid,, p. 1012, 39Tbid., p, IClli, ^,^i»,*«*-—.-«««.. •-—

16^^

the interpretation of the Eiiglish common law, completely to the exclusion of the Spanish and Mexican, The outstanding case is ^nt v. Thompson,^^ in which the claimant based his right on the common law of England. If his contention had prevailed, he would have had thirty years to request a probate proceeding in solemn form because he had not been served with a process and was not present when the will was admitted to probate. Ben^t V, Thomp3on4l discussed the difference between the English common law concerning probate in common form and solemn form with the consequent distinction as to whether or not a notice is required for heirs and other interested parties. However, the court traced the laws of the territory through the Mexican adoption of the Spanish code, saying the laws of l865, which continued in force the Laws of Velarde in relation to the probate of wills, would govern. Therefore, a child who did not appear and make his claim within the time limit allov/ed under the laws would be barred.^-^2 The Laws of Pedro Murillo Velarde, with respect to the execution and proving of wills and administration of estates of decedents, dated back to 1790 and were in

^^5 N.M, 408, 23 P. 234 (1890), ^-^^Ibid. ^^2ibid,, p, 411.

y^ 170 force and continued in force by specific provisions of the Kearney Code of l846, "Even in 18?^, when the common law was formally adopted as the basis of our juris prudence, it was the common law 'as recognized in the United States' that was adopted,"^3 since the common law of any state was not necessarily the conmion law in another, each state adopted only such parts as were suitable and desirable for it. The court said that it had previously declared the scope of the common law as adopted in I876 as follows: We are, therefore, of opinion that the legislature intended by language used in that section to adopt the common law, or lex n_on scrip^ta, and such British statutes of a general liature not local to that kingdom, no.r 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,'^H The inescapabie conclusion then was that the adoption of the common law in I876 did not repeal the existing laws but only resulted in the adoption of as much of the common law as did not conflict with the existing laws of the state. Since the New Mexico Supreme Court ignored

^^3ibid, ^Ibid. 1 n outstanding precedents in the StitzbertT case, the logical inference is that the court wished to make a public issue of a deficiency in the judicial system. The importance placed on the issue stressed in this case can be deduced from the fact that the actual result of the case was very close to unjust enrichment. Sympathies are seldom stirred when a surviving spouse seeks to claim, a right which must come through the parents of his deceased wife. In addition, although it disclaimed responsibility, the court ran the risk of upsetting and making clouded and uncertain the title to all realty which had ever been subject to a probate proceedings in the probate court. Not only did the court not mention the arguments of earlier decisions, but it made a special point of directing attention to the most fundamental defects in the practice before probate courts. The impact of this decision on the public in general and attorneys and real estate brokers in particular was profound. As might be expected., the legislature reacted quickly, but it did not follow the lead given to it by the supreme court. The following year a constitutional amendment was proposed and passed which did secure the probate courts having jurisdiction to determine the heirship of decedents in the administration 172 of all estate, both real and personal ,'-^^ The confused problem was confounded, not corrected. Since no court can be better than the personnel of the judiciary, it is unfortunate that "no steps have been taken by the legislature to require probate judges to be lawyers."4" in only two counties in New Mexico have attorneys been recruited over a long period of time to fill the position of probate Judge,^7 Since there is a wide discrepancy in the qualifications of those who hold this position, it can be expected that wide differences in opinions of the court will be found in different counties,

I3k3. Oonstitutional Amendment As has already been indicated, the direction taken by the legislature after the Stitzberg decision was to amend the constitution to assure jurisdiction of probate courts in matters which involved real estate. The Constitution formerly excluded from the purview of the probate court "jurisdiction in civil causes" in actions involving contracts for the sale of land, for the

^-^New Mexico, Constitution, art, 6, r.ec, 23. 46poldervaart, Manual, p, 2, 47chaves and Bernalillo counties have elected lawyers as probate judge since the early 1930's. 173 possession of land or any mntter involving disputes over titles or boundaries to land. The 19l!.9 amendnent contained exactly those same exclusions hut added a proviso: "except as title to real property may be affected by the determination of heirship; , , ."^8 Other changes proposed by the constitutional amendment broadened the powers of the probate court. The legislature was empowered to give civil jurisdiction to that court in amounts up to $3,000 (for^mrly the maximum had been $1,000), The power of the legislature to give the probate court jurisdiction to act as committing magistrates was continued, as was the power of the legislature to confer limited criminal jarisdiction on the probate courts. A closing sentence which was added by the 19[|9 amendment seemed to give the legislature a mandate: "The legislature shall prescribe the qualifications and fix the compensation of probate judges," These changes in the Constitution were approved in a special election, January 20, I9I49, by a vote of 16,64<^ for and 10,771 ap^ainst.'-l-^ The legislature has never acted to confer greater jurisdiction and has given very little additional

^l-8New Mexico, Constitution, art, VI, sec, 23. ^%ew Mexico, ^12on^UJijat_i_on, art, v'T, ^;ec, 23. -^ " >y

17/1

compensation. Therefore, it is not surpri-^lnr that it has not seen fit to broaden the jurisdiction of the probate courts. Correspondence with the attorney for the Legislative Council Service reveals that this was a backdoor attempt to establish a court which could take over the functions of the justice of the peace. In 1949, Article 6, Section 23 of the state con stitution was amended to authorize expanded probate jurisdiction and to allow the legislature to prescribe qualifications for probate judges. This was an attempt to remedy the justice-of- the-peace problem through the back door rather than to upp:rade the probate court, and it was never implemented,50

The constitutional amendment was used by the supreme court as a pep:, on which to hang its decision which overruled Dimham v, Stitzberg,^-^ The court decided that a decree determining heirship deciare.-j a status and that such a decree can be made by the probate court so as to bind all possible claimants. In vie\v of the 1949 amendment the probate court could decree ownership of real and personal property of a decedent,'^''- The court specifically stated that it was overruling the Stitzbertr decision:

^^^Philip T, Manly, letter dated February 8, 1^70.

^^53 N,M, 81, 201 P.2d 1000 (1948), '^2conley v. Quinn. ^8 N.M. 771, '"""^^ P.2d 906 {V^%) 17S

. . . , the decision in the Stitzberg c-ase, supra, to the extent it holds that the probate court cannot, by its determination of heirship, finally settle the ownership of a decedent's estate, both real and personal, is hereby overruled.53 Although the only issue which the court needed to decide was whether or not a district court sitting in probate could determine the right of a widow to claim her community interest in real estate,^k the opinion was a vehicle to explain why it was acknowledging the mistake made in the Stitzberg decision. Parenthetically, before treating the two propositions argued in connection with the constitutional amendment, we desire to treat briefly the basic holding made in Dunham v. Stitzberg, supra, which prqvoked the constitutional amendment."55 The court explained that the prior case had rested on two assumptions: (1) that the Constitution contained a broad grant of jurisdiction to the district court which had been exercised "by the probate court here and in the Stitzberg case;" and (2) that the Constitution

i^.^* On this main issue the court decided thnt, when a widow made a separate claim to ownership, she was seeking to take property from the estate, rather than through the estate; therefore, the case inv^olved a determination of the title to real estate which was excluded from the jurisdiction of probate, and the district court could not take jurisdiction of the matter when it was sitting as probate,

^^Ibid,, p. 908. 176 makes the district court jurisdiction exclusive, "insofar as it affects or involves real estate." In other words, the effect of our holding in the Stitzberg case is to interpolate the word "exclusive" . . . Significance is to be attached to the omission by the framers of the constitution of this word, unless elsew>iere in the constitution we find a man date to interpolate by Implication where the framers of the constitution themselves omitted it."'^'^ The court found that in making this interpre tation it had repeated a mistake made previously.57 The interpretation of the constitutional restriction of probate jurisdiction--concerning matters in which title or boundaries of land might be drawn In question or dispute--had even qualified all cases in which probate courts had exercised jurisdiction while New Mexico was a territory. The court believed that the restrictive clause should be applied differently. In reality, it is a limitation on future legislative action relative to conferrint- addi tional civil Jurisdiction to administer estates in excess of $1,000 in value because of the presence of this proviso for a future grant by the legislature of civil jurisdiction where the matter in controversy exceeds $1,000, , . ,

, , , , It cannot be Questioned that in

"^^Ibid,

^Tlbid,, cU.in,7 McCnnn v, McCann, l\^ N,M, 406, 129 P.2d 6i;:rTl 9lj2), V

177

territorial days, at the conclusion of an administration, the title to property, both real and personal, was deemed settled in the heirs, devisees or legatees as the case may have been,58 The court emphasized its point by deciding that a decree of heirship was a declaration of status and that a probate court could decree a status that binds the world. In fact, the probate court has done so "from time immemorial in New Mexico in the adoption of children, until the legislature vested exclusive jurisdiction in the district court," in 19[|1. The court concluded its analysis by saying it would be as logical and true to say that a probate court could not probate a will affecting "title to real estate for the same reason but we know full well it can."59 While the legislature gave probate jurisdiction to the district court in 1941, supreme court opinions restricted the power of the court to that which could be exercised by the probate court. However, in 19[48 the supreme court handed down a decision which seemed to deny that the probate court had any jurisdiction when real property was involved. The next legislature then

58 Ibid., p. 909. ^^Ibid., The one dissent in that case was with the court's position in overruling the Stitzberg case; the dissenter concurred with the holding that the district court did not have jurisdiction in the instant case.

^ 179

submitted a constitutional amendment to the voters which gave the probate court jurisdiction to determine heirship whether or not the case involved real property. Finally in 195t the court overruled its 1948 decision. The end result was that both the probate and the district court have jurisdiction to determine heirship in all estates, and the constitution specifically includes estates containing real estate in the jurisdiction of the probate court.

I I I I i I I CHAPTER VIII

AN EVALUATION AND SUGGESTIONS FOR REFORM IN THE PROBATE COURTS

Attitude of the New Mexico Bar and Judiciary Toward the Probate Courts The foregoing chapters reveal some of the intricacies and Importance of the matters which come before a probate Judge. It becomes salient, therefore, to understand how the functions of adjudicating probate matters are performed and to evaluate the performsince of this function in terms of the needs of society. A compila tion of quantitative date allows an observer to make some generalizations concerning the status of the probate court in New Mexico at this time and to make some suggestions concerning the performance of the function of the probate court in the future. Questionnaires were sent to all probate Judges, county clerks, and district court clerks to determine the number of probate cases filed In probate courts and In the various district courts. An attempt was made also to discover something about the training of the Judges, their political experience and their formal

179

^ 180 education. It was possible to determine pertinent information about the probate Judges of nineteen of the thirty-two counties in New Mexico, either through their written responses, personal interviews or through inter viewing various county clerks who work closely with the 2 probate Judges, Ten of the Judges, about whom information could be gathered, are sixty years old or older; five are seventy-eight years old or older. The youngest is thirty- five, and the oldest Is eighty; the average age is sixty- two. Attorneys have been recruited to fill the position of probate Judge in four of the counties, but in only two of those counties are attorneys habitually recruited for that position. As will be shown later, there is an antagonism exhibited toward the idea of recuriting attorneys for this position in some coimties; the attitude Is based on unfortunate past experiences. Although only six of the twenty Judges had held public office before coming to the bench as probate Judge, all except one had been quite active in the political party of his choice.

See Appendix A, for table compiling the results of this survey. Waivers of administration were not Included since the probate court is not concerned with that type of proceeding; It is simply an application made to the Bureau of Revenue seeking to obtain a tax certificate showing the waiver or the payment of taxes on property which the decedent held as a Joint tenant, ^See Appendix B,

^ ,;.'':T;:.ai^

181

Two had been active for approximately five years, one for ten years, and the rest for a period of from twenty to fifty-two years. An examination of the roster of probate judges listed by the counsel for the Legislative Council Service reveals that more wcmen hold the position of probate Judge in New Mexico than is customary for other elective positions. Almost twenty per cent of the probate Judges are women, but none of the attorney-Judges are. The prepared questionnaire also surveyed the opinions 4 of a number of attorneys known to have a considerable prac tice in probate court and the opinions of district Judges and Judges of both appellate courts, A great deal is revealed about the attitudes of attorneys and Judges toward the practice in probate court when an analysis Is made of the responses given to the inquiries regarding the function of the court. Twenty-seven of those answering thought the function was only perfunctory, and ten thought it was supervisory, while five said it was Judicial, Twenty-seven of the respondents said the function was performed ade quately, and foiirteen thought it inadequate. Some of the respondents answered the question in terms of Jurisdic tion of the court, rather than the performance they thought

See Appendix C for form of questionnaire sent to attorneys.

^ -J-id

182 characteristic of the office,"* The comments vary from saying the probate court was "unnecessary" to stating that "New Mexico Probate Courts are courts of records, and their function is exclusively Judicial. They have no supervisory Jurisdiction, and their Jurisdiction is not perfunctory,"^ The comments of the respondents did not lend support to

"Property to supervise, direct and Insure the proper settlement of estates and distribution of the assets of the parties entitled to receive the assets. The duties are identical with those resting on the district courts in probate matters," Some of the respondents Indicated that the function should be supervisory and/or Judicial but that it was per formed in a perfunctory manner in their respective counties. Other comments indicate that the system is made to work but there are deficienciesj "Perfunctory, The lawyers may be relied upon to follow the correct procedures—if no other reason than that where realty is Involved some other lawyer examining the title will be checking their work and they might have to do it over." "The probate courts in New Mexico (not district court sitting as probate) usually act in a perfunctory capacity, relying entirely on the lawyers handling probate matters. This is due to the fact that most probate Judges have no legal education whatever, , ," "Perfunctory. I have handled vrobates in San Miguel, Guadalupe, Mora, Quay, Santa Fe, and Lea Counties. As probate Judges need have no legal train ing the lawyers handled the probate with the judge exercising little if any discretion and merely signing the instrument before him. One probate judge could not read but merely sign his name. Probate judges, however, on contested matters have generally done a good Job, because they have used good common sense," "The probate court in Curry County has been a retirement desk for kindly, old gentlemen for many years. If a controversy arises or litigation Is anticipated, the district court is used,"

x~ \ 183 the accusation leveled at attorneys that they prefer to have the court function as it does so that they can com pletely control probate proceedings. Among those respondents who considered the function supervisory or Judicial, none indicated an approval of the performance of the function by the probate court. Several simply stated that the Bar could be depended upon to conduct a fair and impartial proceeding,'^ Some of the answers indicated that the respondents would categorize the function of the probate court in o entirely different ways.^ The following comments Indicate how difficult it is for respondents to generalize about the function of the probate court in New Mexico because of the demographic differences which exist in the counties, as well as the variety of estates which might come before a probate courti

7 'The following is indicative of this attitudei "To accomplish functions prescribed by statute. Actually all Judges depend largely on the Bar to transact the work properly and In a competent manner. Certainly not perfunctory," o "New Mexico Probate Courts are Courts of Record, and their function Is exclusively Judicial, They have no supervisory Jurisdiction; , , ," "Its function Is purely judicial. Incidentally, it supervises executors, admini strators, and the like. Just as a district court supervises Its own officers and appointees," "More in the nature of administrative;" and "supervisory and administrative— to insure basic compliance with probate and taxing statutes,"

^ 184

Ministerial only—hardly any Judicial discretion is Involved except perhaps in Class "A" counties. The function of this court is supervisory, at times perfunctory and at times purely Judicial in function, A knowledge of the probate laws is essential in some Instances, as well as the rules of evidence. As appropriate to situation in any given case. One answer showed a general approval of the probate court's performance of its function; the court was consid ered to be generally efficient. However, most of the responses were qualified in that the fimction was considered 9 perfunctory. The experience of the Individual respondents colored their opinions of the adequacy of the court's performance. General approval of the way in which the court performed its function was limited to Bernalillo and Chaves counties. In other counties the approval was qualified in terms of the existing requirements of the office—that few of the Judges are lawyers and that some of the duties cannot properly be performed by a person who does not have adequate legal training or experience, A completely negative reaction was shown In comments of

9 Statements were added to clarify the respondents' meaningt that it could be performed by a rubber stamp, that it was adequate only on a superficial basis, that It performed as well as can be expected considering the lack of qualification requirement, and in those Instances where lawyers of ability are probate Judge, A realistic respondent said, "they are usually cooperative and I would say that they perform adequately within their educational limits. In a few counties such as San Miguel the attorneys do not use the probate court except on rare occasions,"

"\ 185 those who said the probate Judges performed no Judicial function, that no Independent effort was expended by the court, and that most attorneys were using the district court. If a respondent did not believe the function of the probate court was performed adequately, he was asked to indicate why he thought it was not. Most of the answers indicated that a lack of training of the Judge was the primary reason. Twenty-seven gave this response while thirteen indicated that the Bar lacked confidence In the court, and fourteen thought simply the lack of experience on the part of the Judge was a major factor contributing to the Inadequacy of the court. Although one respondent thought that the Judge of the probate court did as well as any other Judge, most either con sidered the position to be "traditionally a political, minor plum or sop," or that the "probate Judge should be an attorney." A particularly unpleasant experience was reflected in the comment of one attorneyi "political— or when we have a lawyer as Judge, he has filed probate cases in the district court,"

Other comments explaining reasons for dissatis faction are I "Laymen are not familiar with the rules of procedure and evidence;" "general incompetence;" and "being probate Judge is a part-time Job;" "there isn't sufficient financial attractiveness of the Job to competent people."

^ 186

A very helpful response indicates a reason that the function of a separate probate court is valued and why the court is considered useful in spite of Its weaknessesj Since complex or controverted cases can be originally filed, removed, or appealed to the district court, and since only lawyers can now practice before the probate court, I feel that the benefits of the probate court, in its per functory operation, exceed the detriments, I would always file in the probate court unless I expected a controversy because I had to spend no time waiting on a busy district judge or in explaining the case. The probate judge must rely on the lawyer. Property alone requires an explanation to the district Judge,

The questionnaires sent to attorneys, district Judges and Judges of both appellate courts contained questions which were identical with the following except ions: questions were addressed to district Judges to discover whether or not probate matters brought to their courts created a burden on the workload required of the district Judges; and questions were addressed to attorneys to discover whether they filed most of their cases in the probate court or in the district court. Ten district Judges answered that the probate matters In their court were somewhat of a burden; four said they were not a burden at all. The comments made by the district Judges indicate that cases in which a

•^•^See Appendix D for a tabulation of the results of this survey.

"X 18? contest is contemplated are those filed In the district court, but that the majority of the cases are routine. One district Judge paid a compliment to the probate court and to the Bar in his county by saying, "My lawyers do not file in district court unless there Is a good reason to do so," Another district Judge commented, "We've had capable lawyers as probate Judges in Bernalillo County since 1929— hence appeals are minimal." Of course, the foregoing comments concerned the two counties in which there is exhibited a high degree of confidence and approval of the probate court. In both counties attorneys have been recruited to serve as probate Judge since the early nineteen- thirties.^^ The responses of attorneys indicate that most of them file their cases in the probate coui-t because it Is more convenient for them. The decision to file in district court is usually based on the possibility that a controversy will arise and require removal or appeal to the district court sinyway or because a large estate is Involved. Typical remarks made in conjunction with the responses to the questions are as follows: "The probate court, exclusively, because the district court

^^Chaves and Bernalillo Counties. No respondents from these counties disapproved their probate Judges, They mentioned disapproval of the courts In other counties.

^ 188 should not be burdened with probate matters in the absence of circumstances Justifying removal or appeal;" and "we file in district court because of availability of Judges and If there Is a real legal problem Involved to avoid the necessity sometimes of appeal,"^ Although some attorneys foimd it a handicap to be required to go seek out the probate Judge in their counties, other respondents gave, as a reason for choosing the probate court, the fact that the probate Judge was accessible and that filing in probate court was "the force of habit," Some attorneys

Indicate that they use the probate court because the dis- trlct Judge headquarters in another county,1 4 A question was asked concerning whether or not the attorneys took witnesses into court when proving a will or for the purpose of giving supporting testimony for the final account and report. The purpose of this Inquiry was to elicit information concerning the difference

-^Typical reasons for choosing the district court included: "certainty and Jurisdiction to proceed in case of need; , , ," ", , ,because the judge is an attorney and helps keep me on my toes," Some further comments of attorneys explaining their preferences for the probate court were as follows: "It has always worked satisfactorily;" "convenience, ease of contact, simplicity and resultant saving of time and expense;" "the judge does what I ask^ and "primarily convenience; the probate Judge will sign anything you stick under his nose,"

^v 189 in practice of attorneys before the two courts when probate proceedings are involved. As might be expected, considerably more attorneys took witnesses before the district Judge, Only six responded in the affirmative for the probate court, most of whom were from either Bernalillo or Chaves County, Nine of the respondents did not take witnesses before the judge even in the district court proceedings. The large number answering in the negative for proceedings In the probate court confirms the suspicion that there Is not strict conformity with the requirements of the statute for proving a will if the proceedings are in probate court,-^^ The custom of simply filing printed forms of testimony, which have been signed and sworn to by the witness to the will, seems to prevail. It should be noted that the requirements of the statutes are met in the two counties which have recruited attorneys to act as probate Judge, and the comments of other attorneys also indicate that they probably would bring witnesses before the district court, even though though they do not in their practice before the probate courts in their counties,-^^

•^^The statutory requirements are discussed In Chapter V, "never used district court, but would take wit nesses;" "my usual procedure is to take witnesses before the probate court clerk;" "many times we take witnesses before the court. In some cases we furnish small written testimony;""yes, for proving execution of will , « •

^ 190

All respondents were asked to evaluate the probate court in each county in terms of their satisfaction with the performance of its functions. More than twice as many (eighteen) answered in the affirmative as in the negative (seven). The expression of satisfaction was accompanied with qualifications which were illuminating. An occasional response would reveal that the attorney used the probate court entirely or that he never used it,-^'

Most of those who answered in the affirmative commented in terms which indicated a kind of stoic resignation to the existing conditions in each particular county. Recourse to the district court for original filings, removal, or appeals was mentioned often as a curative measure to insure proper handling of the probate proceedings.

^Again respondents from Bernalillo and Chaves County commented on the good fortune of having a trained and experienced Judges, Even though the Judges set cases only once a week, they are readily accessible as attorneys, no Those who approved the operation of their own probate courts had certain reservations and made qualifica tions of their approval: "At the present our probate Judge is adequate, very cooperative and is anxious to make him self available at any time for convenience of attorneys. This can change by election of a less qualified individual," Other comments concerned the limited use of the probate court: "Yes with the qualification that if any probate matter requires the exercise of Judicial Judgment the probate court will not be having anything to do V7lth It in the first place, , ," "Yes, it is merely a rubber stamp on the work of the attorney here and under present set up could as easily be handled by the county clerk, ..."

^ 191

Even the harshest criticisms seem to be motivated by a dissatisfaction with the system and not by a personal bias against the individual acting as probate Judge."^^ When asked why attempts to change the Jurisdic tion of the probate court had failed in the past, the respondents showed a variety of attitudes toward the needs they felt should be met and the obstacles to accom plishing change. The failure of the legislature to extend the Jurisdiction of the court after 1949 was attributed largely to public apathy or outright dissatisfaction with the courts in general and the probate courts in particular. However, a few respondents simply did not believe that it was either necessary or desirable to make changes In the probate courts. The following comments of some of the respondents clarify the problems faced by those who would make changes in the probate courts and give some reasons why Jurisdiction of the probate court, as it now fimctions, will not be extended: The public has never been sold on the necessity for any change and the office of the probate Judge has been Just another political Job

^"No, in that I consider its function completely useless and a waste of taxpayers' money; at least, however, In this county, the probate Judge does stay at the court house from 8:00 to 4:00 every day of the week so that he is readily available to sign documents, . , ," "No, but this is not the fault of the probate Judge, The writer of this opinion at one time was a probate Judge and I would still answer the court the samec"

X 192

In rural coimties the voter, knowing that lawyers are unavailable to man the courts, are unwilling to dispose of their present courts, and efforts to extend Jurisdiction and upgrade fall because of the necessity of statewide application of amendatory law. No effort was ever made to implement the changes authorized by this amendment. Since the creation of the magistrate courts to replace the Justices of the peace, and with enlarged Jurisdiction, there is less reason to do so. The opinions of respondents, with respect to the Stitzberg case, ranged over a broad spectrum. The variations in attitudes may be explained in part by the differences In the practices in the probate courts of the various counties, since probate courts are used almost exclusively In some counties and not at all in 20 others. One explanation for the failure of the legis lature to respond to the desires of the supreme court as expressed in the Stitzberg case was that there was a "lack of understanding of the legal distinction between the Jurisdiction of the district court and the probate court among legislators," and that this lack of under standing also extended to some members of the legal profession. While some respondents felt that the decision was "silly and never commanded the respect of the bar," others felt that the leadership of the Bar and legislature

or) Comments Indicate that attorneys in some areas particularly find probate courts valuable: "I would hate to see probate courts abolished because district courts, particularly in our area, are already overloaded. But, . , requiring the Judges to be lawyers might be beneficial," 193 failed to take the initiative in preparing the necessary legislation. It was recognized that a further difficulty exists because the probate court is a constitutional court, and most voters "are so removed from Judicial administration they have no basis for intelligent voting," Some attorneys and Judges thought that there was no real reason for the probate courts at this time unless they could be used in some summary manner; but it was also thought that there was a heavily entrenched feeling for the status quo—a Jealousy on the part of the electorate In the counties with little population against the possible loss of another elective office, A different point of view was evidenced by those who said that the idea of a probate court is not bad because most district courts have overcrowded dockets, and people recognize a need for a probate court even though there is little confidence "under the present set-up," The general feeling of most of those responding was that, "since under the law real estate descends directly to the heirs," there was no reason why probate courts could not be "authorized to determine heir ship on real estate," In overruling the Stitzberg case the supreme court made this precise distinction between the Jurisdiction of the district court and that 194 of the probate court, -^

Suggestions for changes Included the possibility of redistricting courts in I97I following the I970 decennial census, the extension of the jurisdiction of the probate court to $3,000, and the combination of the magistrate with the probate court while setting higher legal qualifications for the Judges, As indicated before, almost all the respondents favored a change in the court, and a few thought it advisable to simply abolish it and have the district 22 court handle all probate matters. Ideas for the simpli fication of procedure in probate matters Included changes In the manner In which appeals can be made and changes in the limitation on barring the claims of creditors,^3 Other specific matters which concerned attorneys and Judges were estates which are small or of a moderate size and the multiplicity of legal publications required by the statutes. Even the strongest supporter of the

^•'"Conley v, Quinn, 58 N,M, 771, 276 P,2d 906 (1954), 22 A retired Judge suggested emphatically that the court should be abolished and exclusive jurisdiction over real property vested in the district courts, but he felt that every "incompetent probate Judge in the state would be out in the field fighting such a move." Other recommend ations included the need for trained Judges and the creation of a competent county court to handle probate matters, etc, •^"There are many estates of less than $25,000 in which extended probates are unnecessary. Also a simpler manner of notifying creditor, , , could be enacted."

^ 195 present probate court recognized a need for "minor modifi cations. Judicially worked out," Most respondents said the Bar recognized a need for a new code ana that the present one was archaic—that "procedures should be shortened and the approach moaernized to recognize that a man's busi ness does not terminate at his death." Those who favored giving exclusive Jurisdiction to district courts usually suggested that the extra burden on those courts could be relieved in one of at least two ways—raising the Jurisdictional limits of magistrate courts or the establishment of additional district courts where needed. One recommendation was that there be estab lished a domestic relations court with "Jurisdiction over divorce, Juveniles, etc., including probates," The jurisdic tion of sucn a court would be similar to that which was characteristic of the probate court in the territorial days in New Mexico. The change with which attorneys would concur most readily would be the rewriting of the probate laws In New 24 Mexico to conform with the Uniform Probate Code. Six did not smswer this question; three were uncertain; two answered

24 Other suggestions Included the raising of the qualification requirements for the Judges and the extension of the Jurisdiction of the probate courts In larger counties, or the giving of probate Jurisdiction to magistrates who are required to be attorneys.

^ 196

In the negative; and one commented, "Definitely no; we don't need a sweeping change; leave it alone," When asked about the feasibility and desirability of extending the summary probate proceedings to include estates of larger size and those which contained real as well as personal property, more respondents considered this chauige feasible than desirable. Thirty thought it could be done, but only twenty thought it should be done. Twelve did not think it feasible, and nine did not think it even desirable. The comments indicated that some thought this would not provide the necessary reform,^-^ Some respondents felt that few attorneys took advantage of the present summary procedure and that more of them could use waivers of administration to settle an estate which had been held in Joint tenancy. Different problems loomed in the minds of those who considered this question: whether or not the constitution would have to be amended to permit Inclusion of real property; whether or not proper records would be kept; whether or not there could be a

^^Most were in favor of some kind of slmplfica- tlon as is indicated by the following comments: "The system for clearing up claims should be simplified and shortened so that titles aren't in doubt for too long. Alienation of real estate is commonly necessary to settle estates and made Impossible by the long time It takes to clear claims," Some respondents seemed to fear that this limited change would inhibit a general overhaul of the probate code.

»w«r ^ 197 proper valuation of property, determination of heirship, or establishment of title to real property. It was feared by some that there might be more disputes, litiga tions and expense in the long run. Two respondents viewed the question from diametrically opposing pointes of view. One thought the average home value would make this change valueless if the upper limit was $15,000, and another thoi«ht the upper limit was too high, A pragmatic, if pessimistic, concern was evidenced by one answer: "The principle problem in feasibility is in educating the members of the legal profession to change 26 long standing practice." The pertinent suggestions of the respondents give an interesting insight into the 27 background of different probate courts, ' They show a

_ 2n^j^Q following two comments again avidence the wide divergence in opinions: "When title to real estate is concerned, I feel that the district court is the only forum which should be involved, since it is the only lawyer-manned court in the state (again outside of Class "A" counties); and "It seems to me that the Uni form Code will pretty well solve the problem of simpli fying the probate of routine estates. Nevertheless, it might be well to expand the summary probate Jurisdiction some," •'-' -:: - -^2 27 nU':^,,.i.nu District Judge D. A. Macpherson was the second attorney to become probate Judge in Bernalillo County, and one of the Justices of the supreme court was probate Judge of Roosevelt County from 19II to 1920, Judge MacPherson advised that he and Mr. A, H, McCloed worked to Improve the probate courts in the late 1930's and that one of the results is the present summary admini stration procedure. 198 wide variety of opinions which ranged from the belief that the probate courts should be left alone^^ to the statement that they were not needed,^^ The responses from attorneys and Judges in Albuquerque reveal that few of them realize that at least one other county has a good record for consistently re cruiting well qualified individuals to seek the position of probate Judge, The two comments which follow are an accurate summation of the attitude of most Judges and attorneys toward the New Mexico Probate Court:

^"Atiy interested person wishing to assess the value of the probate court and the feeling of some attorneys should read the spirited defense of the probate court in Colfax County by Mr, George W, Robertson; his letter is found in Appendix E, 29 Many were concerned about the high cost of probating a modest estate, which must be a problem in the office of every general practitioner. One attorney was concerned that there is no directive for personal notification of creditors and with the difficulty in volved because a tort claim cannot be determined by the probate court. Most suggestions concerned the complete rewriting of the probate code or the streamlining of procedures for probate in the district court. Examples of good suggestions are the following: "A simplified probate court for estates of less than $25,000 or ,'|;30,000 could be enacted. Many lawyers try to use waivers of administration instead of extended probate;" and "Under our present system district courts are forced to spend too much time on trivial matters, I have long recommended the creation of a qualified inferior court, perhaps on a county basis, with Jurisdiction in probate. Juvenile, minor criminal and domestic relations and limited civil matters,"

X" :x:

199

It is my observation that outside Bernalillo County the caseload of the district courts is such that all probate matters can adequately be handled in the district courts without risk of serious burden or inconvenience to the district Judges or their staffs. The size of Bernalillo County and the number of probate matters handled make it preferable that a single separate body handle all probate matters. This could be either the existing probate court, or the Jurisdiction could be lodged in the small claims court or a separate, independent body or department within the district court structure.

The Chaves County Probate Judge sets probate matters for Monday afternoon of each week. He will sign orders, etc, if brought to his office and upon request will schedule hearings at desired times, I feel that the Probate Courts of New Mexico, generally may best be described by the following comment of our supreme court in Dunham V, Stitzberg, 53 N,M, 81: "It is a matter of common knowledge that probate proceedings are usually ex parte; that probate Judges In this state are, with few exceptions, not lawyers, and many are ignorant and not fitted for the office. Often they sign prepared orders and decrees without reading; or if read, then without under standing the import," In responding to the last two questions concerning what would improve the probate court, some attorneys indicated they would like to have more "convenient office hours" kept by the probate Judge, Most of the respond ents again called for the establishment of higher qualifi cations for probate Judges and the extension of the Jurisdiction of the probate courts,or for the passage of the uniform code in New Mexico, A great deal of genuine interest and concern for the improvement of

y • • • '••^•X ^^

200

the organization and administration of the courts can be discerned in the responses,^^ There were two recommendations that the probate court be given some control over fiduciaries so that they might force them to carry out their obligations as sureties. Another suggestion was that the probate court should have more control to see that probate proceedings are correctly and timely concluded. An important comment was added by one attorney, and the problem it exposes should be born in mind by those who indiscriminately criticize attorneys for the cost of probate proceedings. Attorneys have their work complicated by the fact that people do not ordinarily keep adequate accounts showing the sums they owe or what is due to them; therefore, attorneys must spend

30 "Our probate court is adequate under the present code, I would like to see higher educational requirements, A general revision of the entire probate code in New Mexico is desirable and I believe will soon be accomplished," There were two suggestions touching matters not directly related to the questions asked. One was that the probate court be given authority to determine what is community and what is separate property, subject to de novo review in the district court; and the whole question of property rights prompted one respondent to suggest that some provision be made for changing the type of property ownership of a husband and wife without the necessity of using a straw man.

/ -^ x:

201 time discovering these matters and have "to see to the operation of the business without statutory authority," Most of the respondents gave considerable thought to the problem. The following comments are characteristic of a majority of those answering the questionnaire: In this county, the Job Is like a pension. The Judge will sign anything presented to him even though he does not understand what he is signing. Would it add anything, really, to make the pro bate Judge be a licensed attorney when, , , there is appeal with trial hsinded over to the district court anyway? If the probate court did In fact have wide enough Jurisdiction to handle, for example, the adoptions, domestic relations matters and probate, and the Judge were a licensed attorney with no private prac tice, and the court were a court of record, obviously a useful purpose would be served and the district court's docket could be shaped up better.

In the majority of our probate matters, there is no contest or adverse proceedings, so it Is simply a matter of establishing of record certain facts which then become Judicially established and in the absence of fraud, the facts established in a completed probate proceeding are generally accepted for all purposed. We actually do not have too much trouble in probate matters in our area, A general conclusion can be drawn from the foregoing analysis of the responses to the survey questionnaire. If careful consideration is given to the way the probate court is used in New Mexico today and to an analysis of its function, the most striking feature is the lack of congruence between the legal powers, or Jurisdiction, and the function actually performed by the court. The great

X 202 majority of the attorneys and Judges in New Mexico consider the function of the probate court to be only perfunctory.-^"^ "Since it is Just a name signing Job," most of the respondents could answer that it was satisfactorily performed in their counties. Whether or not they considered the function to be performed adequately, most of the respond ents Indicated that there was generally dissatisfaction because of lack of training of the Judge, lack of confi dence of attorneys in the court, or lack of experience of the Judge.

The court used by respondents for filing probate cases is determined by the circumstances which exist In each particular county." If there has been a pattern of practice involving the filing of cases in probate courts, attorneys continue to use that court. If prior experience with that court reveals it to be inconvenient or otherwise unsatisfactory, the pattern of practice is to Ignore it and go to the district court, A number of respondents advocate the establishing of a domestic rela tions court to handle probate, divorce, and Juvenile cases.32

^General comments about the probate courts are made concerning all those courts except those in which attorneys have been recruited for the position of Judge for many years. ^^It will be remembered that in the early territor ial days the probate court did have extensive jurisdiction over Juveniles and in minor civil and criminal cases.

;;=;>. x:

203

When they were asked to comment on the reason prior attempts to change the Jurisdiction of the probate court had failed, most indicated either that the legis lature failed to understand the needs of the courts or that the public was unaware of court proceedings or was unwilling to lose another elective office in the more rural counties. A considerable majority of the respondents rejected the suggestion that all probate jurisdiction could be transferred to the district court. Almost all those responding would approve the rewriting of the probate code along the lines suggested in the Uniform Probate Code.-^-^ Since the problems which can arise when there is a trans fer of property upon the death of the owner are so great, some attorneys are very concerned that changes in the statutes might result in more confusion and litigation. This concern is recognized by the drafters of the Uniform Probate Code. They call for a reorientation in the attitude of those attorneys who deal with probate matters;^3 4 as suggested by one respondent, however, this may be the most difficult task of all.

^^Natlonal Conference of Commissioners on Uniform State Laws, Uniform Probate Code with Official Comments (Englewood Cliffs: Prentice^^liaTl, Inc. , 1970).

34Ibid .

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204

The opinions of the Bench and Bar as revealed by the answers to the questionnaires^^ are evidence of the fact that the probate court as an institution of government has been allovfed to fall into disuse in some counties. On occasion the result was due to the fact that using the dis trict court was d.mply more convenient because the attorney practiced law In the community in which the district Judge lived. This is probably the explanation for the fact that the probate court has not been used in Sandoval County for several years.^^ However, the differences In the percentage of cases filed in the probate court In San Juan County-^' and those filed in probate court in Lea County^" cannot be explained in this manner. Neither of those counties have attorneys acting as probate judge and both have a similar number of people residing within the county limits,"^'3^9 The attitudes and. habits of the attorneys and Judges in the two counties must contribute to the differences In probate practice found there.

-^•^See Appendix C, "^ The county seat of Bernalllla is only a short distance from Albuquerque with its very adequate Judiciary in residence there, 37 An annual average of thirty-five cases out of fifty-six are filed In the district court In San Juan County. -^ An annual average of only five ou^, of one hundred and fifty-three probate cases are filed in district court in Lea County, 39 -^ See Appendix A and Appendix t.^

"X x:

205

Some counties have a very small population and a population which is also consistently deci^tslng,^ There are, therefore, very few probates filed in either the probate or the district court in those counties, "^ in the two counties in which attorneys have been recruited as probate Judges, approval of the bench and bar is related to pride in the probate court as an institution. However, the reaction of attorneys in other counties does not seem to be related to the Judge's training; their approval or disapproval seems to be more related to the willingness on the part of the probate Judge to accomodate those who file cases in 42 that court. One means of accomodating attorneys is simply having convenient hours when the Judge can be reached. It is quite possiole that the Judges who responded, when inquiries were directed to them, were usually the same probate Judges who felt that they were performing their Job in a manner which was satisfactory to the bar,4 ^3

Those counties which do not have a large population but which do use the probate court extensively are Colfax and Union, In the other county within the Eighth Juaiclal District the district court is used for a third of the probate cases filed in that county 42 See Appendix B, ^^Ibid.

—• . ^^ x: ••.ft~-«a

2U6

Patterns of Use of the Probate Courts Convenience stands high on the list of reasons why either the probate or the district court is chosen for the filing of probate proceedings. Another reason mentioned by the respondents is "habit" or routine. If an examination is made of the counties in which the probate court is used for ninety per cent or more of the probate cases filed and in which there are a substantial number of probate proceedings, it will be found that, except for Santa Fe County, they are located on the east area of the state. At the opposite extreme, there are the counties of the Fourth Judicial District in which the probate court is seldom used. The average number of cases filed in Guadalupe County Probate Court is six a year; in Mora County the average is two cases a year; and In San Miguel County the average is ten cases a year. The district court handled from three to thirteen times as many probate cases as the probate courts in those counties. In the Second Judicial District the district courts have handled more probate cases than any of the probate courts. This is true even in Bernalillo County, In Sandoval County, no cases have been filed in the probate court for several years, and in Valencia County there has been an annual average of twenty-five cases filed in probate court and

uJtt**" /— >v >y—^nBh^^i^^^^^S^^I^

20?

an annual average of seventy-five cases filed in the 44 district court, Bernalillo County is distinguished by the fact that several district Judges sit in Albuquerque, and there is a high concentration of attorneys in that city; therefore, it would be more convenient for an attorney in Albuquerque to file probate cases from Valencia and Sandoval Coimties in the district court.^ Two other extremes are found in the coimties of Los Alamos and Harding, The former Is small in area, is urban, and has a large number of young, educated citizens. The latter is very large in area but has a sparse popula tion which dimishes every year. There are few probates in Los Alamos because the citizens are young and few probates in Harding County because they are so few. In both counties all probate matters are filed in the Probate Court, An attorney has been recruited in Los Alamos to serve as probate Judge; he can be considered a volunteer since his salary as Judge is only a dollar

^^See Appendix A for numbers of cases filed in district court and In probate court, ^5one student of New Mexico politics has described different political cultures in the State. It is possible that the recruitment of attorneys to fill a position which can only be understood by an attorney is related to the dominant culture in the area. See Jack E. Holmes, Politics in New Mexico (Albuquerque: University of New Mexico Press, 1967) p. 12. 208 a year. The probate court Is used entirely because there the Judge Is qualified and also because it would be necess ary to travel to Santa Fe to have the case heard in the district court. There are no attorneys In Harding County, but the county seat would be more convenient for attorneys in neighboring counties, except those who were practicing In Tucumcari in Quay County where the district Judges resldeSi

Uniform Probate Code, Simplification, Possible Methods for Reform In responding to the questionnaire mailed to him, one district Judge^" volunteered information concerning the appointment of a committee of attorneys which is drafting legislation for a new probate code In New Mexico. The com mittee was appointed by the President of the New Mexico State Bar Association, James Sldwell, and the Board of Bar Commissioners. ' The chairman of the committee wrote that the members of the committee are considering the total Uniform Code, but that decisions have not yet been made on all the changes which will be suggested. Our committee is considering the total Uniform Probate Code, At this time we do not know what changes we will make in the uniform code. We have incurred some changes already, I think our commttee will recommend a totai jgvislon of the present New Mexico probate code.

^^Honorable D, A. MacPherson, who presides over Division Four of the Second Judicial District. ^"^Letter from James P. Saunders, Jr., June 1, 1970. ^^Letter from James P. Saunders, Jr., May 26. 1970.

X 20Q

A survey of the proposals of the Uniform Probate Code is pertinent to understanding the role and function of the minor State Courts of New Mexico. The changes suggested by the committee should make the powers of the probate court more congruent with the function it performs In the future. The basic concept of the Unlform Probate Code is that the "affairs of decedents, missing persons protected persons, minors and certain others" are so closely related as to be a single subject.^ Among the purposes of the code are the following: to simplify and clarify the laws, to discover and carry out the intent of the decedents, to promote efficiency and speedy administration of the es tate, and to make the laws uniform throughout the various jurisdictions,-^ Hearings in probate matters under the Code would be before a court learned in the law. The draft Code's court has exclusive Jurisdiction over the probate of wills, appointment of personal representatives, guardians and conservators, mat ters Involving the administration and distribution of trust estates and estates of decedents or incom petents. It also has concurrent jurisdiction with courts of general jurisdiction over any matter to which a personal representative or a trustee

49 Uniform Probate Code with Official Comments was approved by the House of Delegates of the American Bar Association, Agust, 1969; it will be designate in the texts and in the notes as Code; page numbers refer to "Comments" and the code Itself is designated by section numbers, 5°ibld. X -*-- ^-.-.-£.

210

may be a party. The probate court thus more surely resembles a division of the trial court of general Jurisdiction than the wide variety of public offices presently associated with the term "probate," Perhaps we should have called It an "estates court," In any event, we should think of it in these terms if it is helpful to distinguish the code concept from existing non-Judicial probate offices. ^-^ The first part of the second article of the Code establishes a pattern of descent and distribution of a decedent's property if he should die Intestate. The primary purpose is to establish a pattern of succession for the "person of modest means," who relies upon the law to determine those who are entitled to his property after his death, and contains the following principle provisions: giving a larger share to the surviving spouse, limiting the collateral relatives who can Inherit, treating adopted children like natural children for Inheritance purposes, and requiring that an heir survive the decedent five days if he is to be considered an heir in the estate. More generous provisions are made for surviving spouses than are found in most of the states.52 Most of the suggestions for improving statutes of descent and distribu tion are already a part of the law of New Mexico, either

^Richard V, Wellman, "Selected Aspects of Uniform Probate Code," Real Property, Probate and Trust Journal, III (Fall, 1968Trp7 I99T 52 Code, pp, 9 and 10,

/" mF

211

through statutes or court decisions. The laws of descent and distribution In New Mexico already provide that the surviving spouse shall take all the community property and that all of the separate property shall go to the survivor if there are no children. If either spouse or children survive the decedent, there Is no provision for parents in New Mexico. The Code maizes a distinction between a separate estate of less than 11-50,000 and that which Is greater. The surviving spouse takes the first $50,000 but only one-half of that in excess of .^50,000, if there are surviving children, or if there are surviving parents when there are no children. There is a further distinction when the decedent left a child who is not also the child of the surviving spouse: "if there are surviving issue one or more of whom are not issue of the surviving spouse," one-half of the separate property descends to the spouse and one-half to the children,-^-^ Teams of sociologists and lawyers have studied the characteristics of decedents and survivors and have gathered data which show that an average testator does not think about a split estate until he thinks of the marital deduction first. The reports contained: a vast amount of new information corroborating the Judgment that most married testators, even those who have estates ranging up to as much

^3code, Sec, 2-102-A,

/" *^

212

as $50,000 and $60,000, leave their entire estates to their spouses. If most testators do this, it is the best evidence we have that this is what the average man wants done with estates of this slze,^^

The Code not only provides for pretermitted heirs but also makes a provision for a ^ouse who married a testator after the execution of a will—that the spouse will receive the share that would have been received had there been no will. The pretermitted heir statute includes only children born or adopted after the execution of a will; it, therefore, avoids the difficulties which can arise under a statute like that in New Mexico which uses the words "not named or provided for" to describe a pretermitted heir. Of course, the Code includes methods by which it can be shown that it was the obvious Intention of the testator to omit either a spouse or a child,55 Under the Code the spouse and the children of the decedent are entitled to the following amounts of exempt property: homestead (suggested amount of $5»000) and personal property (suggested amount of $3i500). In addition the suirvivlng spouse and minor children are entitled to a family allowance for a period of one year. "The family allowance is exempt from, and has priority over,

^^"The Uniform Probate Code—Questions and Answers," Real Property. Probate and Trust Journal, III (Winter, I968) vr^9'^. ^ '^ ^^Code, sees. 2-301 and 2-302.

^\ ^^Jferri—-

213

all claims but not over the homestead allowance and rights to exempt property, "-^^ The sums presently allowed in New Mexico for homestead and exempt personal property are ,$3,000 and $500 respectively, and the maximum period for which a widow's and family allowance can be paid is six months,^' Part five of the second article of the Code deals with the formalities which govern the execution or the revocation of a will. The Intent of the Code is to keep the requirements simple, lowering the age requirement to eighteen, limiting the number of witnesses to two, recog- nlzlng holographic wills, "Choice of law as to validity of execution is broadened and revocation by operation of law is limited to divorce or annulment,"^ The Code provides for the "self-proved will" which may be admitted to probate without the testimony of any subscribing witnesses. Otherwise it is treated no differently from other wills: An attested will may at the time of its execution or at any subsequent date be made self-proved, by the acknowledgement thereof by the testator and the affidavit of the witnesses, each made before an officer authorized to adrainister oaths

56code, Sec, 2-403 ^^New Mexico, Statutes Annotated (1953) sees, 24-6-1, 24-6-7. 31-^-1 and 3I-8-IO. ^ Code, p. 22. 214

under the laws of this State, and evidenced by the officer's certificate, under official seal, attached or annexed to the will in form and content, , , ,59 All these provisions would make major changes in the re quirements in New Mexico, with the exception of limiting the number of required witnesses to two. The various drafts of the Code have been keyed to the concept of a nonsupervised administration of estates "as the cornerstone of the administrative features" of the code, "This system is used In the State of V/ashington and has been followed successfully for many years in Texas where it is generally referred to as "independent executorship,* "°^ The fact that there are alternative methods of handling various steps in probate proceedings penults a will to be probated without notice or adjudication, or it permits a formal adjudication that the decedent died testate leaving the proposed will as his last testament. There is no requiie- ment that a personal representative be appointed even though the will is probated formally. In addition, a personal representative may be appointed without prior notice to any Interested parties, or there may be an adjudication of controverted issues after a notice is given. After

^^Code, Sec. 2-504. "Administrative Portions of Draft Uniform Probate Code—An Appraisal," Real Property, Probate and Trust Journal, II (Fall, 19^7T'p. 275.

/" 215 the appointment, the administration may proceed without further resort to court proceedings, or there may be a supervised administration. Also, if a nonsupervised personal representative is appointed, a variety of procedures for secur ing settlement of his accounts Is provided which range from a full notice proceeding binding all the known and unknown persons, through partial adjudications to no-notice procedures which depend on the running of time and the absence of protest to protect a fiduciary. Finally, Interested persons are provided an array of devices which should serve to keep those who manage estates from.abusing the rights of Interested parties,°l The Code has less stringent requirements for the giving of notice to interested persons than are now required by the laws of the State of New Mexico, but the court has the option of making different requirements if It thinks they are necessary, A copy of any notice may be personally delivered to any Interested person at least fourteen days before the date set for a hearing or it may be sent by registered or ordinary first class mail, addressed to the interested person, at least fourteen days before the date set for the hearing. If the identity or address of any Interested person cannot be ascertained, a notice may be published once a week for three weeks, "the last publication of which is to be at least 10 days before the time set for the hearing,"^^

^llbid,, p, 276, ^^code, sec, 2-504,

^\ x:

210

The provisions of Article III of the Coae describe the flexible system of administration; it is designed to apply to Intestate and testate estates. The purpose of this article is to proviae all Interested persons with an option of securing as little or as much procedural safeguard and adjudication as they may desire. Each state may change the wording of the statute to fit its needs, but there are essential characteristics which sould be maintained. A will must be probated to be effective, and a personal representative must be appointed by some public official if the rights and duties of an administrator are created; however, no one is compelled to taKe either of these steps since tne property descends immediately to the successors—whether it is personalty or real property and whether those inheriting are heirs, legatees or devisees. , . , to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of informal probate by the Registrar, or an adjudi cation by the Court, . , .

... to acquire the powers and undertake the duties ana liabilities of a personal representa tive of a decedent, a person must be appointed by an order of the^Court or Registrar, qualify and be Issued letters, ^

•^Code, sec. 3-102.

y^ 217

Alternative procedures are provided for either an informal or a formal probate of a will. The Code Indicates that a non-Judicial officer will act on informal applica tions and a Judge will hear formal proceedings. Alternative methods of appointing personal representatives are either with or without notice to interested parties. In a very few words the act sets at rest the question which agitates so many persons interested in probate proceedings—the adequacy of the qualifications required of the Judge, "A Judge of the Court must have the same qualifications as 64 a Judge of the Court of General Jurisdiction," The important point is that the estates court, whatever it is called, should have unlimited power to hear and finally dispose of matters relevant to determination of the extent of the decedent's estate, , ,"^5 Although persons interested in a decedent's estate may seek an informal determination by the Registrar, he may also petition the Court for order in formal proceed ings within the Court's Jurisdiction, That Jurisdiction Includes the specific powers described in the Code, but it is not limited by them. The court has exclusive jurisdiction of formal proceedings and concurrent Jurisdic tion of any other action or proceeding to which an estate, through a personal representative, may be a party. The

^^Code, p, 7. 65Code , p, 38.

i^V 9^ i?-.I.:':BtfKX'^»-V^ >—:

218

court's Jurisdiction Includes actions to determine title to property,^^ In proceedings within the exclusive jurisdiction of the Court where notice Is required by this Code or by rule, interested persons may be bound by the orders of the Court in respect to property in or subject to the laws of this state, , , ' There is no alternative to formal probate in New Mexico at this time, and there is not even any authority for the district court to act on matters which might other wise be within its Jurisdiction when it is sitting as a probate court. If the Code is adopted, there will be a "system of administration of decedent's estates which gives Interested persons control of whether matters relating to estates will become occasions for Judicial orders," If no Interested persons request any supervised administra tion, any combination of formal proceedings, informal proceedings and the filing of other authorized Instruments may be used. The comments which accompany the Code describe those options as an "in and out" procedure, "Nothing except self-interest will compel resort to the judge,"^^ The Code provides that each proceeding before

66 Code, sec, 3-105. ^"^Code, sec, 3-106, 68 Code, p, 39, The exception to the requirement of the same kind of formal proceedings in all estates In New Mexico is that which qualifies for summary administration—containing personal property of ^3.000 or less, 69ibid,

...sAmm X —^Hl^^i^j^^^^^^j^^r

219

the court or registrar is independent of any other proceed ing in the same estate, that there may be a combination of requests in any petition, and that proceedings for the probate of a will or adjudication that there is no will may, but need not, be combined with a request for the appointment of a personal representative.^^ The attorneys accustomed to only one way of con ducting a probate proceeding will be concerned about the manner in which a no-notice order of probate could become conclusive. The Code provides that the running of the statute of limitations will establish the finality needed. The period is three years from death or one year from the date of entry of the informal order, whichever is later. 71 If no will is probated within three years from death, there is a presumption that no will exists. All creditors' claims are barrea after three years from death, and no personal representative can be appointed after the 72 passage of the period of limitations.' Devisees under a later discovered will, or heirs, who discover assets after the perloa of limitations, may prove their ownership by the will or other Instruments, but they may not secure a probate

70 Code, sec. 3-107. 71 Code, sec. 3-108 "^^"Estate Administration I Current Practices and Proposed Uniform Probate Code," Real Property, Probate and Trust Journal, III (Summer, 1968) p. 143.

/^ 220 of the will or have a personal representative appointed in an estate. 73

In New Mexico the provisions for venue—the places where the probate can be filed—are couched in archaic language, but they are very similar in effect to the more simply worded requirements of the Code, The order of preference in New Mexico is first the decedent's domicile, then any county where the decedent owned real property, and finally the county where he died or where any other property of the decedent can be found,'^ The Code makes no distinction between real and personal property of the decedent. The first order of preference, as In New Mexico, is "in the [county] where the decedent had his domicile at the time of his death," If the decedent had no domicile, then the informal or formal testacy or appointment proceed ing may be had "In any [county] where property of the decedent was located at the time of his death, "'^^

The Code is more explicit and detailed in its provisions governing the persons who have priority in seeking appointment as a personal representative in

"^•^Code. p, 40; sec, 3-901, 74 Statutes. sec, 31-l-3o Code, sec. 3-201, This section contains sub sections providing for the manner in which a change of venue can be obtained—by filing a motion in the county where the proceedings orginated. x:

221

76 an estate,' Whether the proceedings is formal or informal the basic priority is in the following order: (1) the person with priority as determined by a probated will, including a person nominated by a power conferred in a will; (2) the surviving spouse who is a devisee of the decedent; (3) other devisees of the decedent; (4) the surviving spouse of the decedent; (5) other heirs of the decedent; (6) 45 days after the death of the decedent, any creditor,'' Any applicant for informal probate or appointment must state under oath pertinent facts which are the basis of his application. Forcing one who seeks informal probate or informal appointment to make oath before a public official concerning the details required of applications should deter persons who might otherwise misuseo the no-notice feature of informal proceedings,'

'The New Mexico Statutes make a provision for the appointment of an administrator with the will annexed if the person named executor in the will is either unable or unwilling to serve. The statute governing those persons entitled to administer an intestate estate are very simple and very brief, sec, 31-1-9» "If a person makes no will, his estate shall be administered by his surviving conjugal partner, if married, and in the absence of such a person, by the nearest relative of the deceased or other person having an interest in the distribution of the property, be it an executor, legatee or creditor." '^Code, sec, 3-2-3, This detailed list is especi ally needed by a non-Judicial officer whose duties are primarily administrative; he must determine whether or not the person seeking appointment under a will has priority for the appointment. Code, p, 40; sec, 3-901,

/^ o 22

The registrar Issues a statement of informal probate if he is satisfied that the venue for the probate is proper, that the application meets the requirements of the statute, that any required notices have been given, and that the five days have elapsed since the death of the testator. The statement of informal probate is the order which becomes final after three years unless the will is successfully attacked or unless a more recent will Is discovered, "Thus many of the burdensome, present day unnecessary, requirements for proving a will in uncontested routine cases are elim inated, ""^^ The applicant for probate or for letters can give notice of his appointment and close the estate in six months, or he may wait until time for closing before giving notice, or he may give no notice and be completely protected after a three-year period has elapsed. Of course, he, or any Interested person, always has the option of an "in and ^ ^ 4 4 80 out" procedure or complete supervision. The application is a matter of public record, and there are remedies for fraud available to injured persons; therefore, the comments which accompany the Code indicate a belief that the proposed procedure provides more

'^^"Estate Administration," p, 146,

^^Ibid., p, 147. 223

safeguards than are presently available to interested persons under supervised administration \n most Jurisdic tions, The registrar handles the Informal probate proceei- Ings, but he must decline to admit wills where it seems desirable to require a formal probate. If the registrar is not satisfied that a will is entitled to be probated in informal proceedings because of failure to meet the requirements of Sections 3-303 and 3-304 or any other reason, he may decline the application. A declaration of Informal probate Is not an adjudication and does not preclude formal probate proceedings.^1 Denial of informal probate by the registrar cannot be appealed, but a petitioner may initiate formal probate proceedings "so that the matter may be brought before the op Judge in the normal way for contested matters," One of the greatest needs Is for uniform laws which affect creditor's claims against decedent's estates. The efficient collection of monies due commercial ana individ ual creditors is hampered because lenders are "unwilling to bear the expense of understanding or using the cijmibersome and provincial collection procedures found in 50 codes of probate." '^ The time limit within which creditors must assert their claims in New Mexico is shorter than in many other states, but the legal technicalities Involved in perfecting a claim against an estate sometimes prevent the

^•^Code, sec. 3-3-5. 82 Ibid., p. 47. ^^Ibid., p, 73.

/-—- ^\ 224

collection of monies owed by the decedent. Under the Code the period of uncertainty is four months from the first date of publication of a notice of appointment. In New Mexico creditors must file their claims and obtain the approval of the personal representative within six months or lose their right to be paid from the assets of the estate. The Code allows the creditor either to deliver or mall a statement of his claim to the personal representative or to file it with the clerK of the court. If the personal representative desires to disallow the claim, he must notify the creditor; if the personal representative does not take this positive action, the claim Is automatic ally approved. Failure of the personal representative to mall notice to a claimant of action on his claim for 60 days after tne time for original presentation of the claim has expired has the effect of a notice of allowance.°5 If a claim is disallowed, the claimant must file a petition for allowance In the court, or he must file a proceedings against the personal representative, "not later than 60 days after the mailing of the notice of disallowance or partial allovjance. . ."

Oh Coae, sec. 3-801. ^^Code. sec. 3-806. This provision would prevent the inequitable situation which sometimes arises in New Mexico when a claimant files a claim and thinks It is secure but loses it because he did not also obtain the approval of the personal representative. Code.

y^ ^ m- ••lys:::

2^c

In New Mexico a bond is required of all personal representatives unless it is waived by the testator for the person nominated under a will, which has been admitted to probate. The Judge has no discretion under New Mexico statutes, and the among of the bond is governed by the value of the personal property which the decedent left."^ Under the Code no bond is required unless the testator requests it in his will or an interested party demands oo it or a special administrator is appointed, "The code goes far to give real protection to the beneficiaries and yet relieve most estates from the troublesome bond procedures." 89 If he desires, a personal representative, appointed under the Code, may employ appraisers to determine the value of the decedent's estate. However, it is the primary obligation of the fiduciary to establish the value of the property. In this manner, the new code eliminates the function of the appraiser who is a political appointee.

^^statutes, sec, 31-1-17. ^®A special administrator is appointed tempor arily to manage an estate which might be lost or dissipated in the interim between the death of the decedent and the time a personal representative can be appointed to fully administer the estate, ^^"Estate Administration," p, 148, 2<.£:. Oi-

In a fresh departure from the antiquated practice now prevalent In most states, the code simply provides that a personal representative may employ a qualified and disinterested appraiser to assist where there may be doubt as to such value,^^

Another source of difficulty is the lack of uniform ity in the powers which can be exercised by a personal representative in the fifty different jurisdictions In the United States, The Code suggests that certain specific powers be given to personal representatives; these should Include the authority to do the following:: complete the decedent's contracts, satisfy charitable pledges, abandon valueless property, vote stocks or other securities in person or by proxy. Insure estate assets, borrow money, compromise debts, pay taxes, sell stock or other securities, employ attorneys and accountants, sell property, continue a business, lease estate assets, invest cash, and satisfy claims and distribute the estate,^•'• The code also provides that, "Until termination of his appolntmc^nt a personal representative }ia:^ the same power over the title to prop'^^rty of the estate as an absolute owner would have, in trust, however, for the benefit of the creditors and others interested in the estate. This power may be exercised with notice, hearing, or order of court,"92

^^Ibld,, p, 149, ^•^Code, sec. 3-715. ^^"Estate Administration," p, 150, x:

O O '

Ancillary administration of estates is often necessary because a decedent leaves property in more than one state. The usual procedure Is "formal, expensive, time consuming, ana for creditors, unfair,"^^ Any property located in another state than the one In which a personal representative is duly appointed is subject to the rules and regulations of the foreign Jurisdiction. The court of the foreign Jurisdiction can be expected to superimpose the following policies: . , .(1) protection of creditors in the court's Jurisdiction (even to the detriment of a neighbor state's creditors); (2) protection of the state's taxing Interest in the property of the decedent; ana (3) protection of the Interest of resident beneficiaries in the decedent's property.^^ In New Mexico there is little difference between the procedure required in an ancillary administration and a domiciliary administration. The foreign personal representative can qualify and act in the New Mexico proceedings upon showing that he has qualified under the laws of another state; thereafter the proceeding Is the 9^^ same as that required in a domiciliary administration. -"

^^"Ancillary Administration and the Unlforin Probate Code," Real Property, Probate and Trust Journal, IV (Summer, 19697?. 246. ^^Ibid,. p. 244. 95Statute s (1953) sees. 31-2-1 through 31-2-9.

ifMtl*'' p x:

?.2H

Among the problems Involved in probating estates is that of satisfying the requirements which vary from state to state. The committee which drafted the Code concluded that "a unified administration of decedent's estates is desirable.""^ Among the provisions recommended by the Code are the following: (a) A representative appointed in another state may give a good receipt to local debtors to the decedent and may protect local corporations or transfer agents which change registration in the name of the decedent at the request of a repre sentative from another state. The protection depends on 1) 60 days having elapsed since death; 11) no local administration has been commenced; ill) no Interested person has warned the local debtor or company that It should, dishonor the demand, (b) A representative from another state may file a copy of his letters of appointment with a local court and thus gain the same power to act with regard to local assets as a locally appointed personal representative would have, (c) A representative appointed at the decedent's domicile ?ias first priority for local appointment if any local administration proceedings are com menced, (d) A Judgment against a representative in one state is recognized against other representatives in the same estate, (e) A foreign personal representative is subject to suit locally by use of "long arm" provisions whenever the decedent would nave been subject thereto, (f) A probate order made after notice to all interested persons at the domicile of the decedent is to be accepted as conclusive in

^^"Ancillary," p, 249.

/-" 229

any taken proceedings in a court of this state, even though local land may be Involved, (g) A provision for preventing states from arriving at conflicting conclusions regarding domicile is Included,97

Few people will make an argument In defense of requiring more than one formal probate proceeding simply because a decedent owned property in more than one state. The primary problem will be that of educating lawyers and the public to the understanding that local debtors, creditors and holders of property rights can be protected without formal ancillary administration. The Code is much more comprehensive than the New Mexico Statutes in its provisions for summary administration and payment to a successor of sums owed the decedent. The Code builds in flexibility with the provision that any person "indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action belonging to the decedent"^ shall deliver the property belonging to the decedent to the successor of the decedent. The debtor is protected if he has been provided with an affidavit that the estate is valued at not more than j^5,000, that thirty days have elapsed since the death of the decedent.

9'^Ibid., pp, 249-50, ^^Code, sec. 3-1201

••' - \ 2 30

that there has been no application for the appointment of

a personal representative, and that the persons claiming

to be successors are entitled to the property.

The provisions concerning the making of an affidavit

permit any devisee or heir, as well as the surviving widow

or children, to collect wages and other small sums. The

commentators explain that it is unnecessary to Include

realty as a part of assets which can be obtained by affida

vit permit any devisee or heir, as well as the surviving

widow or children, to collect wages and other small sums.

The commentators explain that It Is unnecessary to include

realty as a part of assets which can be obtained by

affidavit since it is such a simple matter to obtain the QQ appointment of a personal representative under the Code,^^

The provisions governing summary administration

of small estates are made very flexible through the simple

device of eliminating a dollar and cents maximum sum for

estates which may be administered under that section of the Code, If it appears from the inventory and appraisement that the value of the entire estate, less liens and allowances, does not exceed homestead allowance, exempt property, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of last Illness of the decedent, the personal representative may.

^^code, p, 92,

X" 231

without giving notice to creditors. Immediately disburse and distribute the estate to the persons ^-^^ entitled thereto, and file a closing statement. , , A small estate may be closed simply by the filing of a sworn statement by the personal representative. The statement must include an affirmation of the facts which qualify the decedent's estate for suimnary administration. The affiant also must state that the estate has been fully administered and that distribution has been made to those entitled to the assets. Finally, it must be shown that an account has been given to all possible claimants who have not been paid or whose claims have not been barred. The appointment of the personal representative is terminated one year after the filing of his sworn statement. If no actions have been filed or are pending at that time. It is also possible for the personal representative to elect to close the estate under the provisions covering formal proceedings "in order to secure the great protec- 102 tion offered by that procedure." The Code also provides for the appointment of guardians of the persons of "incapacitated persons," "protected persons," and "wards," A conservator of the estate of such person may be appointed In a "protective

-'-^^Code, sec, 3-1203 •^^•'•Code, sec, 3-1204 ^Q^Code, p, 93. 232

proceeding." Those subject to these provisions are defined as follows:

(1) "Incapacitated person" means any person who is Impaired by reason of mental illness, mental deficiency, physical Illness or disability, ad vanced age, chronic use of drugs, chronic intoxi cation, or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person; (2) a "protective proceeding" is , , , to deter- ming that a person who has an estate cannot effectively manage or apply the same to necessary ends, either because he lacks the ability or is otherwise Inconvenienced, or because he is a minor, and to secure administration of his estate by a conservator or other appropriate relief. (3) a "protected person" is a minor or other person for whom a conservator has been appointed or other protective order has been made, (4) a "ward" is a person for whom a guardian has been appointed, A "minor ward" is one for whom a guardian has been appointed solely because of his minority.1^3

There is a provision whereby guardianship sind protective proceedings can be consolidated when they concern the same incapacitated person or minor. In addition to any person under duty to deliver to a minor any personal assets, which do not exceed $5,000 a year, may make payment to the minor who is over eighteen years of age or to the guardian or person having custody of the minor or to any federally insured institution in an account for the minor.

103code, sec. 5-101

~\ IP . ^,

233

Where a minor has only a small amount of property, it would be wasteful to require protective pro ceedings to deal with the property. This section makes It possible for other persons, such as the gufio^dian, to handle the less complicated property affairs of the ward. Protective proceedings, including the possible establishment of a conserva torship, will be sought where substantial property is Involved,104

The Code sets out the general powers and duties of a guardian of an incapacited person and of a minor. He is responsible for caring for the person of the ward and is given the powers necessary for achieving this purpose, including receiving minor sums of money or personal property belonging to the ward. Where there are no protective proceedings, the guardian also has limited authority over the property of the ward. When the ward has substantial property, it may be desirable to have protective proceedings to handle his property problems. The same person, of course, may serve as guardian and conservator, -^^ A section of the Code concerns "accounts in financial institutions involving two or more names,"i^^ The purpose of this article is to strengthen and make uniform methods of transmitting funds from one person to another upon death of one of the depositors. This is accomplished by uniform rules regarding the form of survivorship accounts, and by avoid ing theories of Joint tenancy or tenancy In

"^ Code, p, 99. •^^^Code, p. 107. •'•^^Code. p. 119.

/ \ 234

common in regard to rights of living co-depositors. It is supported also by provisions which protect financial institutions which pay in accordance with deposit contracts on bases which are quite independent of those which bear on the rights of depositors as among themselves,1^7

The proposed Code is designed to accommodate accounts which are now in existence and to make provisions for accounts which may be created in the future. Finally the proposed Code is designed to include some provisions on Trust Administration, Personal representatives were described as fiduciaries having relationships to persons interested in decedents' estates very much like those of trustees to beneficiaries. , , Against this technical background and with realization of the functional relationshlpo between trusts, decedents' estates and estate planning, the decision to include procedural provisions relating to trusts involved very little change of direction or perspective,1^° The lack of uniform legislation limits the usefulness of testamentary or intervivos trusts; unifonn legislation is of considerable social importance because the people and property become increasingly mobile. The result of this accelerated mobility is Increased pressure on locally oriented property institutions. If people cannot obtain efficient trust service to preserve and direct wealth because of state property rules, they will turn in time to national arrangements that eliminate property law problems, A general shift away

^Q7lbid. 108 Code, p. 125, w 235 from local management of trusteed wealth and increased reliance on various contractual claims against national funds seems the most likely consequence if the local law of trust remains nonuniform and provincial,1^9

There is concern among lawyers over the inclina tion of persons, who have modest estates, to turn to intervivos, revocable trusts. The concern is rooted in the experience that people often do not get competent advice and fiduciary assistance. Moreover, professional fiduciaries seldom bother with small estates. "Conse quently, neither settlors nor stustees of 'do-it-yourself trusts have much idea of what they are getting into,"-"--^ The objectives of the proposed uniform trust provisions are summarized as follows: (1) To eliminate procedural distinctions between testamentary and inter vivos trusts, (2) To strengthen the ability of owners to select trustees by eliminating formal qualifications of trustees and restrictions on the place of admini s trati on, (3) To locate nonmandatory Judicial proceedings for trustees and beneficiaries in a convenient court fully competent to handle all problems that may arise, (4) To facilitate Judicial proceedings concerning trusts by comprehensive provisions for obtaining Jurisdiction over interested persons by notice, (5) To protect beneficiaries by having trustees file written statements of acceptance of trusts

^^^Code. p. 126. N::

236

with suitable courts, thereby acknowledging Jurisdiction and providing some evidence of the trust's existence for future beneficiaries, (6) To eliminate routinely required court accountings, substituting clear remedies and statutory duties to Inform beneficiaries,11^ The trustee of a trust is required to register the trust in the state where It is to be administered; of course, the registration is made in the court of the state which is empowered to make adjudications in matters concerning trusts. The Code outlines how registration is to be made and makes the trustee subject to the Jurisdiction of the court. The trustee who falls to register the trust is subject to removal from office after the receipt of a thirty-day notice to register. The court has exclusive Jurisdiction when an action is initiated by any person interested in the administration of the trust. Provision Is also made for review of the emplojinent of agents and review of the compensation of trustees and employees of the trust. The commentators indicate that they consider it preferable to "Indicate simply that comprehensive legislation dealing with trustees' powers appropriately may be included in 112 the Code package, , ,"

•^•^"^Code, p. 127. 112 Code, pp, 133-3^. m 1964 the National Conference approved the Uniform Trustees' Powers Act, and it has been used as a model for legislation in several states. CHAPTER IX

SUMMARY AND CONCLUSIONS

New Mexico has made great advances in the process of reforming its court structures during the nlneteen- slxties, as was stated in the first chapter. The substi tution in 1968 of a paid magistrate for a Justice of the peace court, which was dependent on the fee system, was one of the most extensive changes in the court system. A constitutional amendment was required to effect the change in the minor courts. The success of the amending process in establishing the magistrate court was due largely to an extensive investigation by members of the legislature. Newspaper publicity also aroused public interest and gave impetus to the reform of the Justice of the peace court. Whether or not the same kind of public interest or publicity can be aroused today to support changes in the probate courts is questionable. The first consideration in making the reforms is that they be piecemeal; each change should be placed on a continuum according to its relative Importance, Decisions of what to do and how to do it should be made then in the light of the expected resistance to each proposed change. Some

237

^\ 238 thought should also be given to the possibility that unnecessarily arousing adverse reactions can prejudice any reform attempted subsequently. Each step in the process should be weighed according to the Importance of that step, its chances for success, and how failure or success might affect pleuis for reforms in the future, A basic decision involves determining the organization of the courts which will best achieve effective administration of probate cases, A decision on how to proceed is an integral part of the determination of the goal to be sought.

Given the wide demographic diversity in the counties in New Mexico, the establishment of separate probate courts in each coimty, staffed by Judges trained in the law, may be out of the question. Some of the sparsely populated counties have no residents who are trained in the law, and a separate court which is fully coordinated with the court of general trial Jurisdiction, is only needed in the more populous counties. Few probate cases are filed in the counties with sparse population, and in most of those counties a large percentage of the probate cases are filed in district court. If the flexible procedures recommended by the Uniform Probate Code were adopted in New Mexico, even fewer probate cases would be adjudicated. The admini strative duties contemplated by the Code can be performed by

See Appendix A. x:

239

technically trained clerical personnel. However, some provisions must be made for the adjuaicatlon of disputed probates in the sparsely settled counties. The only practical solution is the retention of the Jurisdiction of the district courts over contested probate cases for the counties in which few people live. To depend on the district courts for the handing of probate matters even in more populous counties woula be possible. This is the suggested solution by the adminlstra- tor of the courts,"^ However, the survey research done In conjunction with this study shows that both attorneys and Judges overwhelmingly oppose giving exclusive Jurisdiction over probate to district courts,-^ For those counties where the attorneys use the probate court, alternative solutions should be considered. In those counties which are large enough to Justify the establishment of a special court trained in tne law to

Edward T, Johnson, "1969 Annual Report of the Director of the Administrative Office of the Courts," Santa Fe, 1969, p, 53, (Lithographed,) The report is based on the average caseload of all probate courts and does not take into account the diversity in the function ana role of the probate courts in the different counties, •^The adoption of the flexible procedures recommended by the Uniform Probate Code might nullify this objection because It would not be necessary to adjudicate every step in the administration of an estate. On the other hand, "inactlvation" of probate courts might create a resistance to change which would prevent the adoption of a new probate code.

/" x:

240

hear probate, the district court need not have Jurisdiction over probate. Some of the respondents answering the survey questionnaire recommended the establishment of a domestic relations courts. That could would be empowered to hanale Juvenile and probate cases. The functions of such a court could be performed either by a branch of the district court or by a magistrate trained in the law. The court could be given powers over domestic relations. Juveniles and probate, which woula be fully coordinated with the court of general trial Jurisdiction—the district court in New Mexico. Either approach to the establishment of the special court would embody the ideal of a unified system of courts. Furthermore, the establishment of a special court in each of the counties where there is a larger population and a heavier workload for the courts might be fairer and meet with greater acceptance. The more populous counties would be served by a Judge in resi dence, qualified to adjudicate the very personal kind of cases involved in domestic relations, Juvenile problems and probates. Generally these more populous counties are those in which there is a considerable amount of probate and in which the probate court is used for most of the cases

The counties which might be entltlea to a domestic relations court could Include Bernalillo, Chaves, Curry,

/: " > -,

241

Dona Ana, Eddy, Grant, Lea, McKinley, Otero, Quay, Rio Arriba, San Juan, Santa Fe, and Valencia; the caseload for probate, divorce and other related cases might Justify the establishment of such a court in counties such as Colfax, Union, and Sierra, If the Jurisdiction also included minor civil and criminal cases, the workload might Justify the special court in other counties. The district courts in those districts composed of coimties too sparsely populated to Justify a new domestic relations court would still handle domestic relations. As importsuit as deciding what to do is the decision of how to achieve the goal. The drafters of a new code in New Mexico must face that problem. Approaching the funda mental problem with understanding and discernment may well spell success or failure for the changes proposed. The odds for and against each possible approach should be carefully

weighed. Since the probate court is a constitutional court, it can only be abolished by a constitutional amendment. The drafters of legislation need to decide whether or not it is possible to work within the framework of the consti tution. Certainty can only be achieved through a new constitutional amendment, but there are inherent risks in approaching the problem through this method. If there is insufficient publicity and an inadequate understanding of

^ pp ^ 3—1

242

the proposal, apathy and other forces inhibiting change undoubtedly would prevent the passage of any proposal. In the past New Mexico voters have seldom shown enough interest in the proposed constitutional amendments to assure their passage. Historically there is a strong pattern of resist ance to constitutional change. Fewer than ten per cent of the amendments proposed by the New Mexico Legislature 4 have been adopted. The Constltuion of New Mexico now provides that there must be a probate court, which is a court of record, in each county. The Jurisdiction of the court is subject to change by law, and the legislature can prescribe the qualifications for and fix the compensation for probate Judges.^ Statutory provisions could allow the district court to adjudicate probate cases in sparsely populated counties, and in other counties a domestic relations court could be given the functions of adjudication in probate matters. The changes in personnel for informal probate can be made without amending the constitution. The Judge of the present probate court could continue to act in informal

See Charles B Judah and Frederick C. Irion. The 47th State i An Appraisal of Its Government (Albuquerque: University of New Mexico Press, 1946) p. 25. ^New Mexico, Constitution, art. IV, sec. 23,

L gii^-^l^'. EU I' ..—. J-l , "N^ V 243

proceedings. Also, the coimty clerk of each county could be empowered to act as the registrar of the probate court and perform the necessary functions required in informal probates. If the drafters of a new code think it is necess ary, the county clerk could be called the probate Judge for informal proceedings. Compensation for performing the function of probate Judge or registrar can be fixed by statute.

An important factor which will determine the possibilities for success is whether or not attorneys understand the consequences of the proposed change. The members of the Bar must grasp the concept of alternative procedures in probate cases. Attorneys and their clients must understand the results to be expected when a choice is made. The public should be favorably Impressed by the fact that there are alternative courses of action and the amount of privacy afforded by informal actions. The fear that is most often expressed by attorneys and Judges, when they are asked about changing the laws governing New Mexico probate procedure, is that proper records would not be kept. Perhaps, a study of the exper ience of the Texas Bar with the Independent Executor would alleviate some of the concern of the New Mexico Bar, Other states, such as Pennsylvania, New Jersey and Delaware, have also had experience with more flexible procedures which 24^ have allowed an informal administration of estates. It would be important for the Bench and the Bar to know if these states have had difficulty because records have not been kept or if titles to property have been adversely affected by Informal probates. Establishing a record is an important reason for having many probate proceedings in New Mexico, However, the respondents to the probate questionnaire indicate that the responsibility for making such a record must be assumed by lawyers because the probate courts do not exercise any discretion. Informal probate in New Mexico would only make the responsibilities and the duties of the registrar or probate Judge congruent with the functions required in informal actions. The new Code may appear to be a more radical depart ure from the present practice of probate in New Mexico than it actually is. The most important change may be only the requirement that trained Judges adjudicate controversial probate cases. When inquiries are made about the practice of probate In New Mexico today, a recurrent theme appears In the responses. The information most often volunteered by respondents is the fact that cases which might Involve a controversy are filed In the district court. One reason for this practice is that the statute requires the presiding Judge of the district court be qualified to interpret the x:

245

law and to make the necessary decisions, A pragmatic reason for removing or originally filing disputed cases In district court is that a decision of the probate court may be appealed. When disputed cases are appealed to the district court, the trial must be de novo, and there is a duplication of the proceeding in the probate court. Whether the legis lature decides to use an upgraded magistrate or a branch of the district court for probate adjudications, appeals should not be heard d£ novo. If the court of original probate Jurisdiction is not Inferior to the district court, it seems reasonable to allow appeals directly to one of the appellate courts; all cases appealed would be reviewed on the record. The result of the usual practice in probate today is that those cases which are filed in the probate court are those about which no controversy is expected. This practice is in fact very similar to that contemplated for the informal probate under the Uniform Probate Code, In New Mexico the probate court proceedings are nominally adjudicated, but the adjudicator seldom has the training or experience required to perform the function of adjudica tion. Flexible procedures, if adopted, may allow more safeguards to the Interested parties. Greater protection is provided by explicit rules establishing priority for venue and priority of the persons entitled to an appointment

••'• X" 246

as personal representative. Anyone who deals in good faith with an heir or a personal representative Is protected by the statute of limitations. The Code suggests that no one should be allowed to bring a proceeding to probate a will or have a personal representative appointed if three years have elapsed since the decedent's death or since the appoint ment of a personal representative. The Code sets out in detail the remedies available to anyone who is the victim of a fraud. Creditors are more protected under the Uniform Code than they are under the present New Mexico laws. The filing of a claim with a personal representative or the court clerk is sufficient. The claim is allowed unless a positive action is taken by the personal representative to disallow the claim. New Mexico could also benefit from the provisions for: the self-proving will, summary disposition of estates valued at less than the exempt property; abolish ing the distinction between real and personal property; streamlining the powers of personal representatives; and the raising of the maximum value of an estate which could be administered in a summary fashion. Much of the Code concerning guardians and conservators particularly is needed in New Mexico,

^ 24?

The portion of the Code which has been most subject to criticism concerns the complete elimination of notice to heirs and others Interested persons in certain Informal proceedings. Requirements for giving notice in New Mexico proceedings have been very strict,"^ so the drafters of a new code might consider requiring at least one notice in all proceedings.

The wide esteem in which the Commissioners on Uni form Laws are held should contribute to the success of any proposed probate legislation in New Mexico, However the far-reaching suggestions of the Code cannot completely satisfy everone. This fact should be born In mind by reformers. It is clear that legislation of this magnitude will generate controversy. For example, although it has many forward-looking features, it may not meet the required standards of all communities, and, although it is Immensely well integrated, there is something in i_t to offend everyone," The fond hope of those interested in improving the administration of probate law in New Mexico is that the Uniform Probate Code cem be adapted to the New Mexico practice with the least offense to anyone.

^"Notice—Probate Procedure—I967 Draft of the Uniform Probate Code," Iowa Law Review, XIII (October, 1967) pp, 5O8-I7I and Lawrance H, Irvin, "Uniform Probate Code, Some Current Comments," Trusts and Estates, DVIII (December, I969) PP. 1133-3^. "^Harlan v. Sparks, 125 F,2d 502, writers.^^^^®^^®' "Uniform," p, 1133; italics are the

X" p^ ;^

248

It can be concluded that the historical experience has had a considerable Impact on local court institutions in New Mexico. Only recently have substantial changes been made. New Mexico came into the Union after a long period as a territory, and it has a heritage from different cultures. Governmental patterns and institutions were carried over from the Spanish and Mexican occupations. The Americans brought additional change, but the fimctions of the alcaldes and the prefects were retained in government at the local level.

The probate court remained a powerful institution for twenty-five years after New Mexico became a territory of the United States, Its Judicial functions Included appellate Jurisdiction over minor disputes arising originally in the Justice courts. The move to strip the probate court of its power began with the establish ment of a county commission in I876 as the chief governing body for the county. The Jurisdiction of the probate court was further diminished by succeeding legislatures and by the supreme court's restrictive Interpretations of the power of the probate court. In 1970 the only Jurisdiction which the probate court has is the determination of the heirs of a decedent. Its power over the person and the estate of minor children is greater than its power over the estates of decedents.

x^ 249

Constitutional amendments and enabling legislation have resulted in the creation of a salaried magistrate to replace the archaic Justice of the peace courts and their notorious fee system, A prominent member of the legislature was a major opponent of including the abolition of the probate courts In the same constitutional amendments which abolished the Justice of the peace court. Therefore, the probate court continues to be the only constitutional court in the thirty-two coimties which was unchanged by the court reform of the nineteen-sixties. The court is made to work in some Judicial districts while it is by-passed in others. It is by-passed in all counties when the case may be appealed to a district court. The various patterns of practice in different counties indicate the need to consider the establishment of a full-time court in the counties which are more heavily populated. Although the fimction of the probate Judge is adequately performed in some coimties, the demands on the court are insufficient to require full-time Judges, If the position is to be a full-time one, the court which performs the function of probate must also have other duties. The magistrate court could be used as a probate court in each county, but little would be gained unless the magistrate were required to be trained in the law.

i' /—""^ \ 250

The magistrate court could be made a court of record; it is already subject to the oversight of the court administrator. In the more populous counties the magistrate court could be given Jurisdiction over probate matters, and the qualifications of the Judge could include the requirement of membership in the New Mexico State Bar Association, Then the salaries established for the magistrates and the allocation of clerical assistants could be determined on the basis of the additional work load. Any additional Jurisdiction given to an upgraded magistrate court would relieve the congestion in some district courts. The Jurisdiction over probate might be given to district Judges, However, the redistricting of Judicial districts and the addition of district Judges can only be achieved by the first session of the legislature after the publication of the 1970 census of the United States, If the needed changes are effected through the district court structure, it must be done next year. Very few attorneys and Judges in New Mexico approve of the part-time and usually untrained probate Judges, At the same time most members of the New Mexico Bar oppose the transfer of the existing functions of the probate court to the district court as It is now constituted. Some members of the Bar have found that they can conduct their probate

y— \ x:

251

business quite satisfactorily under the present system, A majority of the attorneys would resist any effort which would require the changing of their deeply engrained habits. Changing the role and function of the probate court in New Mexico in the future will meet with the least resistance frommembers of the Bar if they understand the informal practice of probate and realize it is not very different from current practice in most probate courts. The role and function of the justice of the peace has been successfully transferred to a magistrate. Today the position is more prestigious and is received by the public with greater approval. The future of the probate court will depend upon whether or not those urging changes in the probate code can secure the approval of the legis lature. If the legislature does act, the success of its efforts may be determined by the method it chooses as the vehicle for reform. The major decision will be the deter mination of whether or not the Uniform Probate Code can be adapted to the needs of New Mexico without the necessity of securing a constitutional amendment. In the past the effectiveness of the probate court has been related to the population of the county in which it was located, and any future efforts at reform will be opposed by the officials of the less populous coimties. Therefore, unless the present court is retained only for Informal probate, a

.dir / X x:

2^2

simple transfer of the function of the probate courts to a full-time official in the office of the coimty clerk may prove to be the most successful tactical method of change. That official could be the coimty clerk or an assistant appointed to work In the office of the county clerk; the functions would be a combination of many of the duties of the probate Judge and the probate clerk as they are per formed today. Whoever performs the functions could be called either a Judge or a registrar. All formal adjudi cations desired would be presented to a court trained in

the law. Success cannot be assured because those seeking change are authorities on the subject or because the changes suggested have been devised by the foremost authorities on the subject. However, if the leadership of the New Mexico State Bar Association proposes a new probate code which is modeled after the one conceived by the outstanding American students of probate law and approved by the American Bar Association, the possibility of successful reform should be enhanced.

•||ktfk>aAi4u,J JT^ ''A*" X-^ '' 'V"

APPENDIX A, Probate Casec Filed in Probate and District Courts B, Background and Experience of Probate Judges C, New Mexico Probate Courts Opinion Survey D, Results: Surrey of Opinions of Judges and Lawyers E, New Mexioo Counties and Judicial Districts F, Robertson & Robertson, Attorneys: Letter G, Survey Questionnaire Sent to Magistrates H, New Mexico Court System: Diagram

253 254

APPENDIX A

PROBATE CASES FILED IN PROBATE AND DISTRICT COURTS

Counties P,Ct, D,Ct, All Listed by Popula Judge's Filed Filed Cases Districts tion* Salary 68-69 Mean 68-69 Mean Mean

First Los Alamos 16.,30 0 * 1 14 7 0 0 7 Rio Arriba 23.,80 0 1,,76 0 30 15 39 20 35 Santa Fe 54..50 0 1,,98 0 325 165 18 9 174 Second Bernalillo 321,.50 0 3,,98 0 516 258 650 325 383 Sandoval 18,,20 0 1 ,050 0 0 40 20 20 Valencia 38,,20 0 1 ,980 50 25 149 15 100 Third Dona Ana 73,,00 0 1 ,980 150 15 25 13 88 Otero 34,,50 0 1 ,760 131 65 20 10 85 Lincoln 7,,90 0 1 ,650 16 38 19 10 48 Fourth Guadalupe 5,,00 0 1 ,050 12 6 22 11 17 Mora 5,,20 0 550 3 2 16 8 10 San Miguel 22,,20 0 1 ,650 10 5 81 40 45 Fifth Chave s 46,,60 0 1 ,980 253 126 8 4 130 Eddy 46,,00 0 1 ,980 234 117 18 9 126 Lea 51,,70 0 1 .980 276 138 10 5 143 Sixth Grant 19,,60 0 1 ,980 102 51 8 4 55 Hidalgo 4,,90 0 1 ,050 36 18 6 3 21 Luna 11,,10 0 1 ,760 75 38 11 6 41 41

*E¥timates of Mid-Year Population by University of New Mexico Bureau of Business Research; see Secretary of State, New Mexico Blue Book, 1969-1970,

<^ n^

255

APPENDIX A—Continued

PROBATE CASES FILED IN PROBATE AND DISTRICT COURTS

P,Ct, D,Ct, All Listed by Popula Judge's Filed Filed Cases Districts tion* Salary 68-69 Mean 68-69 Mean Mean

Seventh Catron 2,600 % 705 10 5 7 4 9 Sierra 7,400 1,050 88 44 14 7 51 Socorro 10,900 1.650 26 13 29 15 28 Torrance 5,800 1,650 48 24 15 8 32 Eighth Colfax 12,400 1,650 253 127 8 4 131 Taos 17,200 1,650 90 45 24 12 36 Union 5,800 1,050 106 53 7 4 51 Ninth Curry 35.100 1.960 205 103 12 6 109 Roosevelt 17,800 1.650 137 74 89 45 119 Tenth DeBaca 2,200 705 37 19 22 11 28 Harding 1.500 550 12 6 0 0 6 Quay 11,400 1,650 111 56 12 6 62 Eleventh McKinley 41,800 1,980 16 38 23 12 50 San Juan 48,000 1,980 42 21 70 35 56

•Estimates of Mid-Year Population by University of New Mexico Bureau of Business Research; see Secretary of State New Mexico Blue Book, 1969-1970,

X •... jjil.

256

APPENDIX B

BACKGROUND AND EXPERIENCE OF PROBATE JUDGES

Years Elected Political Years Other in or Oppos ition Party Office Office Appointed Pr, Gen. Activity Held Age Education 9 E 0 2 22 none 54 BA & LLB 3 A 0 0 30 treas, 68 college 8 yrs. 5 A & E 0 0 43 none 68 18 hrs, college 1 E 1 1 30 clerk 54 hl,sch. 4 yrs. 3 E 1 1 48 none 61 2 yrs, college 1 E 3 0 20 none 21+ 3 yrs, college 4 E 0 2 20 clerk 59 hl,sch. 3 E 1 0 52 sch,spt. 80 college 6 yrs. law—corr. 3 E 0 2 0 none 44 AB & LLB 3 mth. A 0 1 5 none 44 Profess w' ional 1 E 0 0 years none 74 hi.sch. 5 A 0 1 48 none 74 hi,sch. business 3 E 0 0 23 legis, 4 yrs. 8 E 0 2 30 JP 78 railroad 4 yrs. 4 E 0 1 40 sch,bd, 78 30 yrs. 1 E 1 0 5 none 35 some college 3 A & E 0 0 20 none 55 LLB 2 E 1 1 10 none 47 hl,sch. none 70+ 3 E 0 0 yes 257

APPENDIX C

NEW MEXICO PROBATE COURTS

OPINION SURVEY

1, What do you consider the function of the probate court In New Mexico (supervisory, perfunctory or other)?

2, Is this fimction adquately performed by the probate Judges in the counties in New Mexico? Yes

Other response 3, If you answer No, 2 "No," why do you consider this to be so? (a) lack of training of Judge_ (b) lack of confidence of attorneys in that court^

(c) lack of experience of probate Judge

(d) Other (specify):_ »__ 4, Why do you think the moves to change the probate court In the past have been unsuccessful? (a) The 1949 amendment to the constitution author izing the extention of the Jurisdiction of the Probate Court?

Comments? (b) The admonition to the legislature given in the case of Dunham v, Stitzberg to enact a statute which would authorize district courts to "determine heirship in all cases wherein real estate is left by decedents. Comments : ____^ 258

APPENDIX C—Continued

(c) Attempts to abolish the probate court through legislative action in I965, Comments: Other attempted revision: 5, Would you favor a revision of the New Mexico Code with regard to probate matters? Please comment or qualify If you wish. Yes No Uncertain 6, If you answer to No, 5 is "Yes," would you favor (a) giving the district courts exclusive Juris diction over probate matters? Please comment or qualify if you wish. Yes^ No Uncertain^ Comments (b) rewriting the code along the lines suggested in the Uniform Probate Code: (1) Informal proceedings for both testate and intestate matters; this provides for Just an appointment of a personal representative but allows any Interested person to request a formal proceedings and allovrs an "in and out" arrangement so that Interested persons can have any particular question adjudicated with out sumittlng the entire estate for formal probate; the statutory limitations for any claimant is suggested for three years, (2) a formal proceedings conducted in a court of general trial Jurisdiction if those Interested so desired; this would provide for notice and a shorter period for claims of creditors and appearance and objection of other Interested person. Yes jpraar-T

259

APPENDIX C—Continued No Uncertain Comment (i,e, title to real property)

7. Do you believe it would be feasible or desirable to rewrite the code to provide for a proceedings similar to summary administration but including real property (total upper limits of value at perhaps $15,000), with a longer period for barring claims of rights of any Interested person, and providing for obtaining a tax certificate from the Succession Tax Division of the Bureau of Revenue, Feasibility: Desirability: Yes Yes No No Uncertain Uncertain_ Comment 8, Any other pertinent suggestions would be appreciated,

9, Do you file most of your probate cases in the District Court or in the Probate Court? District Court^ Probate Court 10, Why do you choose one or the other of these courts (convenience, certainty, or otherwise)?

District Court_ Probate Court__ Comment 11. Do you take witnesses before the Judge in proving a will or in giving testimony determining the heirs of the 3ecedent ?

X 1^

2 60

APPENDIX C—Continued District Court Probate Court Comment

12. Are you satisfied with the conduct of the probate court in your county?

13. l^at could be done to improve the Probate Court in your county?

14, Any additional information you can contribute toward this study will be greatly appreciated. 261

APPENDIX D

RESULTS: SURVEY OF OPINIONS OF JUDGES AND LAWYERS 1, Function of probate Judges: Supervisory: 10 Perfunctory: 27 Judicial: 5 2, Performance of that Function adequately: Yes: 27 No: 14 3. Why not performed adequately? Lack of: training: 27 confidence: I3 experience: 16 4, Why attempts to change court unsuccessful? 5. Favor revision of probate code: Yes: 37 No: 1 Uncertain: 2 6, Favor giving exclusive Jurisdiction to district court: Yes: 17 No: 28 Modeling code after uniform probate code: Yes: 27 No: 4 Uncertain: 6 7. Raising Jurisdictional limits in summary administration: Feasibility: Desirability Yes: 3k No: 12 Yes: 20 Uncertain: 6 No: 9 No response: 2 Uncertain: 5 No response 10 262

APPENDIX D—Continued 8, Request for general comment, 9, Court where most cases filed: District: 10 Probate: 23 10, Reason for choice of court: District: Probate: Convenience: 2 Convenience: 17 Certainty: 4 Other: 0 11, Witnesses brought to court: District: Probate: Yes: 12 Yes: 9 No: 6 No: 17 12, Satisfaction with probate court: Yes: 19 No: 9

L. ^ 263

APPENDIX E

NEW MEXICO COUNTIES AND JUDICIAL DISTRICTS X3^

264

APPENDIX F

ROBERTSON & ROBERTSON Attorneys at Law Post Office Box 10 Raton, New Mexico 87740 April 1, 1970

Mrs, Ferinez Phelps Department of Government Texas Tech University P, 0, Box 4500 Lubbock, Texas 79409 Dear Mrs, Phelps: This will acknowledge receipt of your letter of March I3 inviting comments on the performance of the probate in New Mexico, It is a pleasure to hear from you; I remem ber you and Ray were practicing law in Clayton, I am very much afraid from the tone of your letter and the tone of your questionnaire that your own mind is pretty well set against the probate courts, I am sorry about this; I Just don't see it that way at all, I have handled a great deal of probate practice over the years, and In ordinary cases I greatly prefer to conduct a probate proceeding in the probate court rather than in the district court. The probate Judges are always more easily accessible and more readily available. The district Judge may be away holding court in some other place, or he may be busily occupied in trying litigated matters. The probate Judge is available daily at reasonable, specified hours so that con tacting him is no problem. The handling of all probate matters in the district court would burden the lawyers needlessly with a lot of extra time and expense; ultimately this would be reflected in the charges clients have to pay for lawyers' services During my period of practice, all the probate Judges here in Colfax County have been laymen except for two brief periods when the office was held by lawyers. Without a single exception I have found the probate Judges to be fair.

LiMV ^ 265

APPENDIX F—Continued accomodating, and concerned about the welfare of the heirs and beneficiaries. Critics of our present system C£in easily claim that the Judge ought to be trained in the law because otherwise he may be misled and imposed on by unscrupulous counsel. The fact is that this supposed evil Just doesn't occur. The lawyers in this county have been scrupulously fair with the probate judges and have not attempted to mislead or overreach. It must be remembered that nearly all probate matters, whether in the district court or in the probate court, are handled ex parte. If a lawyer will stoop to misleading or overreaching a Judge, he can do this even to an experienced district judge. That the lawyers don't do this, is not a tribute to the wisdom of the Judiciary; it is a tribute to the integrity of the legal profession. But let's suppose that an unlearned probate Judge commits an error. There is always the unrestricted right of appeal and trial d£ novo. These furnish all the safe guards that are needed. If you will think about it dis passionately, I believe you will realize that very, very few appeals are actually taken from the probate court to the district court. This, in Itself, is an eloquent comment. We must always remember that most probate matters are mere routine. In the normal situation there is no controversy; the family wants the lawyer to handle the whole thing properly and to do it as simply and promptly as possible. These basic needs are much better served by the probate courts than by the district courts, I am returning your questionnaire herewith. With all good wishes, I remain. Very truly yours,

George W, Robertson /s/

GWR:s ENCL:1

^ 266

APPENDIX G

SURVEY QUESTIONNAIRE SENT TO MAGISTRATES

1, Were you elected or appointed to the office of magi strate? 2, Are you running for re-election? , If Not, why not? 3, If you are running for election, did you have an opponent in the primary; or in the general election? 4, How long have you been active in your party? 5, Have you ever held another elective office? 6, If you have held elective office, what was it? and how long did you hold It? 7, What days and what hours are you in your office?, 8, What is your age? 9, What is your education: high school? ,college? professional school? . other? 10, How did you decide to accept the appointment or rune for this office? _- — 11, Does the work as magistrate compare favorably or unfavor ably with that of the former Justice of the peace?

12, Please add any comment you believe pertinent to the function of this office: 267 APPENDIX H*

SENAZX Lqpeaefameats

SUHtOffi COOBT Appeals Certiorari Original

JUVBULB COOBTS Tnala

-« . 1

NDBXCZBU, COUKES AIMZRISZRATZVI AOEZrCZES TrUls Trials Bearings

nsTrrunoii^ SMLL C ZADG StAFFIC COORIS . COURI S Trlala Trials

•The Institutional Traffic. Courts, which had only been used at New Mexico State University, were abolished by the 1969 legislature. x:

SELECTED SOURCES

Books Alderfer, Harold F, American Local Government and Admin istration, New York: The Macmillan Company, 1956, Almond, Gabriel A., and Powell, G. Bingham, Jr, Compara tive Politics, A Developmental Approach, Little, Brown and Company, 1966, Barber, James David, The Lawmakers, Recruitment and Adaptation to Legislative Life, New Haven: Yale University Press, 1965. Bartlett, Samuel E, Kansas Probate Law and Practice, Kansas City: Vernon Law Book Company, 1953. Bloom, Murray Teigh, The Trouble with Lawyers, New York: Simon and Schuster, 1969. Dacey, Norman F. How to Avoid Probate! New York: Crown Publishers, Inc., 1965. Deutsch, Karl W.; Edinger, Lewis J.; Macridis, Roy C; and Merritt, Richard L, France. Germany and the Western Alliance: A Study gji Elite Attitudes on European Integration and World Politics.New York: Charles Scribner's Sons, 1967. Donnelly, Thomas C, The Government of New Mexico. Albu querque: The University of New Mexico Press, 1947. Easton, David, A Systems Analysis of Political Life, New York: John Wiley & Sons, Inc., 1965. . The Political System. An Inquiry into the State of Political Science, New York:Alfred AV Knopf, 1^65: Eleazar, Daniel J, American Federalism: A View from the States. New York: Thomas Y. Crowell Company, 1966.

268

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269

Fairlle, John A., and Kneier, Charles Mayard, County Government and Administration, New YorkT^e Century Co,, 1930^^

Foote, Henry S, The Bench and Bar of the Southwest. St. Louis: Thomas & Wentworth,~87^ "~ Fratcher, William F, Probate Can Be Quick and Cheap: Trusts and Estates, in England. New Y^kTTfgeant xT?ess, Inc., 1968,

Gosnell, Cullen B,, and Holland, Lynwood M, State and Local, Government in the United States'! NewTork: Prentice-Hall, Inc, 19511 Hannett, Arthur T, Sagebrush Lawyer, New York: Pageant Press, Inc, 1964, Holmes, Jack, Politics in New Mexico. Albuquerque: The University of New Mexico Press, I967. Huff, Roy M, Oklahoma Probate Law and Practice with Forms, Kansas City: Vernon Law Book Co,, 1967, Judah, Charles B,, and Irion, Frederick C, The 47th State. An Appraisal of Its Government, Albuquerque: Division of Government Research, University of New Mexico, 1959. Keleher, William A. Turmoil in New Mexico. 1846-1864. Santa Fe: The Rydal Press, 1952. Maitland, F. W. Selected Historical Essays of F. W, Maitland, Chosen and Introduced by Helen M, Cam, Boston: Beacon Press, 1962. , Township and Borough, The Ford Lectures, 1897. Cambridge: The University Press, 1964, Marshall, Arthur K, California Probate Handbook, Los Angeles: Parker & Sons Publications, Inc, 1967. National Conference of Commissioners on Uniform State Laws, Uniform Probate Code with Official Comments, Englewood Cliffs: Prentice-Hall, Inc, 1970, Parks, Howard E, Colorado Probate Practice Manual, San Francisco: Mathew Bender & Company, Inc., 1964, x:

270

Pinet, Frank. Probated Estates in Kansas, 1940 and 1950. An Analysis of Their Size and Composition, Law rence, Kansas: Bureau of Research, University of Kansas, 1956. Poldervaart, Arle W, Black-Robed Justice. Santa Fe: Historical Society of New Mexico, 1948, , New Mexico Justice Manual, Denver: Courtrlght PubTTshing Co., 1958. . New Mexico Probate Manual. Albuquerque: Univer sity of New Mexico Press, I96I, Pollock, Sir Frederick, and Maitland, Frederick William. The History of English Law Before the Time of Edward I, 2nd ed. Cambridge: The University Press, 19^8. " Porter, Albert Ogden, County Government in Virginia, A Legislative History, 1607-1904, New York: AMS Press, Inc,, 1966 Pound, Roscoe, The Lawyer from Antiquitjv to Modern Times, St, Paul: West Publishing Co,, 19?3. Saunders, Charles A, , ed. How to Live and Die with Texas Probate. Houston: Gulf Publishing Co., I96BT Secretary of State of New Mexico, New Mexico Blue Book, 1969-1970. Santa Fe, 1970, Shapiro, Martin, The Supreme Court and Administrative Agencies, New York: The Free Press, 1968 Simes, Lewis M,, and Fratcher, William F, Cases and Materials on the Law of Fiduciary Administration, Chicago: Callaghan & Company, 1941. Simes, Lewis M,, and Basye, Paul E. Problems in Probate Law. Chicago: Callaghan & Company, 1946, Simes, Lewis M, Public Policy and the Dead Hand. Ann Arbor: University of Michigan Law School, 1955. Simmons, Marc, Spanish Government in New Mexico, Albuquerque: The University of New Mexico Press, 1968 Snider, Clyde F. American State and Local Government, New York: Appleton-Century-Crofts, Inc., 1950. Treat, William W. New Hampshire Practice, Probate Law. Oxford, Newl^pshlre: Equity Publishing Corpora- tion, 1908.

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271

Twitchell, Robert Emerson. The Spanish Archives of New Mexico. 2 vols. Cedar Rapids: Torch Press, 1914, . The Leading Facts of New Mexico History. 5 vols. Cedar Rapids: Torch Press, 1911-1917.

Articles '•Administrative Portions of Draft Uniform Probate Code— an Appraisal," Real Property. Probate and Trust Journal, II (FairrT967), pp. 273-82, Agnor, William H, "Avoid Conditions Based on Probate," Georgia State Bar Journal, III (May, 1967), pp, 407-I^ "Ancillary Administration and the Uniform Probate Code," Real Property. Probate and Trust Journal, IV TSummer, 1969;, pp. 242-52, Anderson, Boyd H., Jr. "How to Avoid Trouble," The Florida Bar Journal. XLI (March, I967), PP. 158-6B7" Atkinson, Thomas E. "Brief History of English Testamentary Jurisdiction," Missouri Law Review, VIII (April, 1943), pp. 107-52. , "Development of Massachusetts Probate System," Michigan Law Review. XLIII (December, 1943), pp, 425-52. , "Old Principles and New Ideas Concerning Probate Court Procedure." Journal of American Judicature Society. XXIII. (December/ —^ « , 1939)•» A^k A\^^ \ , PP^. 137-42^ ^MTJ IIO. , "Organization of Probate Courts and Qualifica- tions of Probate Judges," Journal of American Judicature Society, XXIII (October, 1939), PP. 93-8. . "Wanted—a Model Probate Code," Journal of Arngrican Judicature Society, XXIIl (February, 1940), pp, 183-90. Banyon, Willard J. "Justice Courts on Trial," Michigan Bar Journal. XXXVII (May, 1958), p. 35. Barnard, Morton John. "Alice in Probateland." Illinois Bar Journal. LII (September, 1963), PP* 50-6, awr*rn*' »•••

272

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Davis, Edward M, "Independence from the Probate Court." Real Property Probate and Trust Journal. Ill TWiHter, 1968), pp. l8ll^. "Efficient Administration of Estates." Trusts and Estates. CII (October, I963), pp. 902-06. "Estate Administration: Current Practices and Proposed Uniform Probate Code." Real Property. Probate and Trust Journal. Ill (Summer, 1968;, pp. 143-54. Fleming, Austin. "Some Changes in the Probate Act." Chicago Bar Record. LXI (November, 1959), pp. 73-6. Fletcher, Robert L. "Washington's Non-intervention Execu tor—Starting Point for Probate Simplification." Washington Law Review. XII (January, I966), pp. 33-93. Fox, Harry S. "Summary Settlement of Small Estates." Wisconsin Law Review. 1948 (July, 1948), pp. 453-60. Fratcher, William F,, and Straus, J. Pennington. "Model Probate Code." Pennsylvania Bar Association Quarterly. XXXV (March, 1964), pp. 206-17. Fratcher, William F. "Toward Uniform Succession Legisla tion, " New York University Law Rev lev/. XLI (December, 193iF7, pp. 1037-50. Gudeman, Richard M. "Some Rules Affecting Probate Law." Chicago Bar Record. XLI (March, i960), pp. 309-12. Haertle, Eugene M. "The History of the Probate Court." Marquette Law Review. XLV (September, 1962), pp. 546-47. Haertney, Matthew J,, Jr, "Trusts Under the Iowa Probate Code," Iowa Law Review, XLIX (Spring, 1964), pp. 693-7^3T Harris, Reese H,, Jr, "Uniform Probate Code: Trust Fra ternity Support for Major Drafting Project," Trusts and Estates. CIV (April, 1964), pp, 337-39. Hauftfuhrer, George J,, Jr, "The Uniform Probate Code—A Modern Approach for Pennsylvania," Pennsylvania Bar Association Quarterly. XLI (October, 1969), pp, 79-91. 274

Hines, N, William. "Freedom of Testation and the Iowa Probate Code." Iowa Law Review. XLIX (Spring:, 1964), pp. 724-25. Huie, William 0, "Changes Made by the Texas Probate Code in the Administration of Community Property," Texas Law Review. XXXIV (May, 1956), pp, 700-21, Jones, Thomas L, "Alabama Probate Law—Need for Revisions for Interstate Provisions," Alabama Law Review, XX (Fall, 1967), pp. 1-27. "Journal of New Mexico Convention of September, 1849," Historical Society of New Mexico. Santa Fe: New Mexico Printing Company, 1907. "Judicial Reforms Adopted in New Mexico," National Civic Review (May, 1965), p. 254, Kahn, Nat M, "Changes in the Probate Rules." Chicago Bar Record XLI (February, I960), pp. 261-62. Kronke, George, Jr. "A Decade of Probate Law." Wisconsin Law Review. 196I (January, I96I), pp. 82-122, La Face, Ronald C, "The Justice of the Peace Court in Florida," University of Florida Law Review. XVIII (Summer, 1965), PP. 109-2^: Lawrence, H. Irvin, "Uniform Probate Code, Some Current Comments," Trust and Estates. CVIII (December, I969), pp, 1133-38. Levy, Sheldon S, "Probate in Common Form in the United States: The Problem of Notice in Probate Proceed ings," Wisconsin Law Review. 1952 (May, 1952), pp, 420-37. Litten, Chapln, "The Lawyer as Bird Dog. , . Gathering Facts for Probate." Illinois Bar Journal. XLIII (May, 1955), PP* 716-20, Luhke, Arthur F,, Jr. "An Intervivos Look at Dacev." Wisconsin Bar Bulletin. XLII (August, 1969), pp. 32-42. Lundergan, Barbara K. "Thoughts on Mr. Dacy's Book." Illinois Bar Journal. LV (November, I966), pp. 220-25. 215

MacDonald, Herbert S. "An Obituary Note on the Connecticut Justice of the Peace." Connecticut Bar Journal, XXXV (1961), pp. 411-31,

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Redfearn, Daniel H, "History of the Probate Laws of Florida," Florida Law Journal, X/III (June, 1944). pp, 154-61, ^ y 1^ Rollison, W, D, "Commentary on the Uniform Probate Code." Alabama Lawyer. XXX (July, I969), pp. 334-43. Sarpy, Leon, and Duplantier, Adrian G. "I96O Amendments to the Civil Code Enacted in Connection with the New Code of Civil Procedure." Louisiana Law Review. XXI (February, I96I), pp. 383-92, Scharff, I^rtin. "Wills-Function of Probate Court- Conflicting Evidence—Burden of Proof—Statutory Construction," University of Cincinnati Law Review. XXVI (Fall, 1957), pp. 652-55. Scholes, Frances V, "Civil Government and Society in New Mexico in the Seventeenth Century," New Mexico Historical Review. X (April, 1935), PP. 71-111. Schwartz, David C, "Toward a Theory of Political Recruit ment," The Western Political Quarterly, XXII (September, 1969), pp. 552-71. Selvln, Herman F, "Comment: Terror in Probate." Stanford Law Review. XVI (March, 1964), pp. 355-68. Sharkansky, Ira, and Hofferbert, Richard I. "Dimensions of State Politics, Economics and Public Policy." The American Political Science Review. LXIII (September, 1969), pp. 858-79. Sheard, Gilbert A. "Avoiding Probate of Decedent's Estates." University of Cincinnati Lavj Review. XXXVI (Winter, 1967), pp. 70-100. Silverstein, Lee. "Small Claims Courts versus Justices of the Peace." West Virginia Law Review. LVIII (April, 1936), pp. 241739. Simes, Lewis M., and Basye, Paul E. "Organization of the Probate Court in America." Michigan Law Review. XLII (August-June, 1944), pp, 113-54. Smith, Earnest E. "Appraisers and Appraisement Under the Texas Probate Code." Texas Law Review. XLV (April, 1967), pp. 842-52. 217

Smith, Sheldon B. "Some Comments on the District Probate System," Connecticut Bar Journal. VII (January- April, 1933), pp. 56-70: Straus, J, Pennington, "The Uniform Probate Code Approved," Pennsylvania Bar Association Quarterly. XLI (October, 1969T7 pp. 71-78, "Summaries of Probate Courts by Counties—and by the State as a Whole," Kansas Judicial Council Bulletin. XI (December, 1937), pp. 212-345. Sunderland, Edson R. "A Study of the Justices of the Peace and other Minor Courts," Connecticut Bar Journal. XXI (September, 1947), pp. 300-44. "Survey of Small Estates Legislation." Real Property. Probate and Trust Journal. II (Winter, 1967), pp. 565-^97 Taylor, Frank J, "You Can Avoid the Probate Trap," Reader's Digest, June, 1970, pp. 93-6. "The Justice of the Peace in Virginia." Virginia Law Review. LII (1966), pp. 517-60. "The New Rules of the Probate Court." Chicago Bar Record. XL (September, 1959), PP. 457-66, "The Uniform Probate Code—Questions and Answers," Real Property, Probate and Trust Journal, III (Winter, 1968), pp, 388-96, Walker, Jack L, "The Diffusion of Innovation Among the American States." The American Political Science Review. LXIII (September, 1969), pp. 880-99. V/arren, Joseph, "Problems in Probate and Administration." Harvard Law Review, XXXII (1919), PP. 315-^8, V/ebster, Shirley A, "Decedent's Estates: Succession and Administration." Iowa Law Review. XLIX (Spring, 1964), pp. 638-77. Wellman, Richard V, "A Possible Answer to Probate Avoid ance." Law Quadrangle Notes. (Winter, 1969), pp, 14-19. , "Questions and Answers on Uniform Probate Code." Real Property, Probate and Trust Journal. Ill T¥inter, I968), pp. 38819^, 278

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The State Judicial System Study Committee: How the Courts in New Mexico Work. Sen, Fabian Chaves, Jr., chairman. Santa Fe: Rydal Press, 196I. 279

Unpublished Materials Donnelly, Thomas A. "The Justice of the Peace System in New Mexico," New Mexico Constitutional Revision Commission, Santa Fe, 1969. (Mimeographed.) Folmar, Richard H, "Piecemeal Amendment of the New Mexico Constitution, I9II-I962," New Mexico Legislative Council, Santa Fe, I963. (Mimeographed,) Hall, Judge Robert H, "The Facts About Georgia Courts," Address to the Citizens Conference on Georgia's Judicial System, April 21, 1966, (Mimeographed.) Johnson, Edward T, "Courts of New Mexico," Administrative Office of the Courts, Santa Fe, I967. (Xeroxed.) "1968 Annual Report of the Director of the Administrative Office of the Courts," Santa Fe, 1968. (Lithographed.) "I969 Annual Report of the Director of the Administrative Office of the Courts," Santa Fe, 1968. (Lithographed.) League of Women Voters of New Mexico. "The Justice of the Peace System in New Mexico," Santa Fe, I96O. (Mimeographed.) . "Traffic Courts—A Road to Justice?" Santa Fe, i960. (Mimeographed.) Manly, Philip T. "District Court Finance in New Mexico," State Judicial System Study Committee of the Twenty-sixth Legislature, Santa Fe, 1964. (Mimeographed.) , "Survey of the Judicial System in New Mexico," New Mexico Legislative Council Service, Santa Fe, 1967, (Mimeographed.) , "Survey of the Judicial System in New Mexico," New Mexico Legislative Council Service, Santa Fe, 1969, (Mimeographed,) Neal, Joe V/est, "State and Local Government in Northeastern Mexico: Nuevo Leon, Coahuila, and Tamaulipas," Unpublished Ph,D, dissertation. University of Texas, 1957. ^Ajg^^^jg

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X L /