It is my view that 1941 Comp. 16-418, repealed that portion of 1941 Comp. 33-805 relating to appeals from decisions of probate courts including rejection of a claim filed against a decedent's estate. The latter section was a part of Ch. 90 of L. 1889 entitled:
"An Act to Amend the Laws Relative to the Estates of Deceased Persons."
1941 Comp. 16-418 was a part of Ch. 81, L. 1901 entitled as follows:
"An Act to Provide a Method of Procedure in the Administration of Estates of Deceased Persons, to Define the Duties of Administrators and Executors, and Providing a Method of Appeal from Probate Courts to District Courts, and for Other Purposes."
The law relating to implied repeals is not complicated.
In State v. Romero, 19 N.M. 1, 140 P. 1069, it was decided:
"Repeals by implication are not favored, but will be declared by the courts in cases where `the last statute is so broad in its terms and so clear and explicit in its words as to show that it was intended to cover the whole subject, and therefore to displace the prior statute.'"
In Baca v. Board of Com'rs of Bernalillo County, 10 N.M. 438,62 P. 979, we decided:
"Where two statutes have the same object and relate to the same subject, if the later act is repugnant to the former the former is, to the extent of the repugnancy, repealed by implication, even in the absence of the repealing clause in the later act."
I think the fact that the 1889 Act relative to appeals from decisions of the probate courts was rather vague, uncertain and unsatisfactory in its operation, affords a reasonable conjecture as to why the portion of Ch. 81, L. 1901 relative to such appeals was *Page 179 enacted. As the law existed under Ch. 90 Lans. Ch. 1889, all claims against the estates of deceased persons not filed and notice given within a year from the date of the appointment of the executor or administrator were barred. That would mean, as I take it, that a claim would not be barred if it were filed and notice given on the last day of the year from the appointment of the administrator. This would mean then that some time after the period of one year from the date of the appointment of the administrator, the probate court might hear and allow the claim or reject it. That would mean that the probate court might have the hearing at one time or another, accordingly as the engagements of the probate court might permit, or as influenced by the ability of the parties to present or defend against a claim influenced by their engagements, and the ability to get the witnesses into court. It might be that after the probate court had heard the testimony and considered the evidence, the case might be taken under advisement and a decision rendered later. In other words, there were no specific provisions as to when the probate court was required to hear such a matter or when a decision should be rendered.
So that, if no appeal could be taken more than 18 months after the appointment of the administrator, then the result could possibly have been that the 6 months interim between the last date for filing a claim and the expiration of 18 months could be whittled down anywhere from 6 months to one day, or even less than one day in which an appeal could be taken. That is to say, it would be possible that the probate court could render its decision on the last day of the 18 months after the appointment of the administrator.
I do not say that the legislature could not bring about such an unfortunate and undesirable result, but I do say that it was a very unsatisfactory situation and doubtless the bench and bar found it so, and this situation afforded perhaps the reasons for the enactment of Ch. 81, L. 1901 which provided a new and complete code governing appeals from decisions of the probate courts.
Other reasons for the desirability of the 1901 enactment are suggested.
By Sec. 46 of Ch. 90 Lans. Ch. 1889, any party aggrieved by the decision of the probate court would have the right to appeal at any time within 3 months from the time such decision was rendered, whereas by Sec. 29 of the same Act, an appeal could be taken from the decision of the probate court rejecting a claim against the estate within 6 months after the rejection of the claim by the probate court. There was no apparent good reason for this discrepancy and to allow 6 months within which to appeal might have a tendency to delay the settlement of estates.
The foregoing and other considerations afford sufficient reason why the legislature probably thought in 1901 that the whole thing of appeals from probate courts to district courts should be worked over. The requirement of the 1901 Act that appeals from any decision of any probate *Page 180 court shall be taken within 90 days of the rendering of any such decision upon the giving of an appeal bond is certainly repugnant to and irreconcilable with a provision of an earlier act stating that an appeal could be taken from a decision of a probate court within 6 months of the rendering of such decision without any requirement for an appeal bond.
Some support is given my argument in Teopfer v. Kaeufer,12 N.M. 372, 78 P. 53, 67 L.R.A. 315, in which it was held in effect that Sec. 46 of Ch. 90, L. 1889 was repealed by Sec. 40 of Ch. 81, L. 1901. There was not any more an express repeal of Sec. 46 of Ch. 90 Lans. Ch. 1889, than there was of Sec. 29 of said Chapter, and the courts holding that Sec. 46 had been repealed is persuasive that the territorial court in the Teopfer case considered it too obvious to require discussion that Sec. 40 of Ch. 81, L. 1901 was a new and complete code governing appeals from probate courts to district courts except as specifically limited in the amendatory and repealing enactment.
The failure of early compilers of our statutes to sense that the 1889 act was superseded by the 1901 act is of little value in view of the fact that the compilation commission and their legal advisors in the preparation of the 1941 Compilation recognized that the 1889 act had at least in part been superseded by the 1901 act. See compiler's note to Sec. 32-215 1941 Comp. The antiquity of mistakes and persistence therein do not relieve us of the responsibility of setting things right when our attention is engaged.
I find it unnecessary to consider the effect of Art. 6, Sec. 27 of our Constitution providing that appeals shall be allowed in all cases from the final judgments and decisions of the probate courts to the district courts, except to recall that in Grim v. Proctor, 47 N.M. 307, 142 P.2d 544, we remarked that this provision manifests a deep concern that appeals shall be allowed from the decisions of the probate court to the district court. This deep concern adds another reason for the adoption of the view here presented that it was the intention of the legislature by the enactment of Sec. 40 of Ch. 81 Lans. Ch. 1901 to provide a full and complete code of appellate procedure pertaining to decisions of the probate courts except as therein limited to replace a former indefinite code of procedure which might, under some circumstances, even defeat the right of appeal without the fault of the party aggrieved.
These considerations lead me to the conclusion that the judgment of the district court should be reversed and the cause remanded with directions to hear the matter upon its merits.