Matter of Estate of Kerr

HARTZ, Judge

(concurring in part, dissenting in part).

25. I join in Chief Judge Apodaca’s opinion except on two matters.

26. First, although I agree that the wills executed by Mr. and Mrs. Kerr were mutual wills, my analysis of the matter is a bit different from that adopted by the majority. In my view, the issue is not sufficiency of the evidence. Rather, the issue is how to interpret certain written documents — the wills. After all, the historical facts are not disputed. The authenticity of the wills was not challenged. Therefore, the sole question is whether the language in the wills created a contract between the testators requiring the survivor to- dispose of their property in a particular manner. I would answer that question “Yes,” because the language of the wills is unambiguous. Nothing in the terms of the wills or the circumstances surrounding their execution suggests that the Kerrs gave the words of the mutuality provision a meaning other than their natural meaning.

27.My second difference from the majority relates to the discussion of lost wills. Our Supreme Court has held that in a proceeding to probate a missing will that had been in the testator’s possession or in a place to which the testator had ready access, it is presumed that the testator destroyed the will with the intention of revoking it if the proponent fails to give an explanation for the absence of the will. Perschbacher v. Moseley, 75 N.M. 252, 254, 403 P.2d 693, 694 (1965). I agree that a like presumption could apply with respect to Mr. Kerr’s will, even though no one has sought or is seeking to probate it. But in translating that presumption to the present situation, it seems to me that the basis for invoking the presumption would have to be the failure to locate Mr. Kerr’s will at the time of his death, not the failure to locate it at the time of Mrs. Kerr’s death. See Lich v. Carlin, 184 Cal.App.2d 128, 7 Cal.Rptr. 555, 560 (1960); Silvers v. Estate of Silvers, 274 So.2d 20 (Fla.Dist.Ct.App.1973). Obviously, the disappearance of his will after his death could hardly be attributed to his decision to revoke it.

28. The district court made no finding that Mr. Kerr’s will was missing at the time of his death. Hence, no presumption arose that Mr. Kerr had revoked his will by destroying it. There being no other evidence to support a finding that Mr. Kerr revoked his will, perhaps it would be appropriate to reverse outright the district court’s finding that Mr. Kerr’s will was revoked.

29. Nevertheless, the better procedure in this case would be to remand for further findings by the district court. Because the district court had alternative grounds for ruling against Petitioner, it may have thought it unnecessary to make a specific determination regarding whether Mr. Kerr’s will existed at the time of his death. I agree with the majority that the evidence that the will existed at the time of his death appears persuasive. But the lens through which an appellate court views the evidence at trial is cloudy and astigmatic. I would defer to the district court on this factual issue.