(concurring in result).
I concur in the result.
Joyce Shadden appeals an adverse interlocutory order concerning the following provision in the Will of Garland L. Shadden, deceased:
To G. L. Shadden, I give and bequeath the following which is my separate property ... a promissory note payable to me from the community in the amount of $9,000.00 which represents money I received from some of my personal property.
G. L. Shadden is the son of decedent. The trial. court awarded G. L. Shadden judgment against the estate of Garland L. Shadden in the amount of $9,000.00 with interest.
I concur in the affirmance of the judgment but for none of the reasons stated in Judge Walters’ Opinion. The reason for this concurrence arises out of the blood relationship of father and son based upon the intention of the father as expressed in the will. Joyce Shadden, wife of decedent, was a stepmother of G. L. Shadden.
“The intention of a testator as expressed in his will controls the legal effect of his dispositions.” Section 45-2-603, N.M.S.A. 1978. In Gregg v. Gardner, 73 N.M. 347, 388 P.2d 68 (1963), Justice Moise introduced into this forum the principles of law that govern the interpretation of a will in order to arrive at the true intention of the testator. These rules are simple and clear but most difficult in application. They are supplemented by detailed explanation of guidelines to follow in ascertaining the meaning of words and phrases. See, Delaney v. First National Bank in Albuquerque, 73 N.M. 192, 386 P.2d 711 (1963); Lamphear v. Alch, 58 N.M. 796, 277 P.2d 299 (1954); Brown v. Brown, 53 N.M. 379, 208 P.2d 1081 (1949). The long essay quoted as authority in the Walters’ Opinion is but an exhortatory restatement of the pertinent rules adopted in New Mexico.
A reiteration of these rules is a useless appendage when a court seeks to determine a testator’s intent. A testator’s intention is discerned by carefully reading the contents of the Will. When a determination is made, then each judge states those precise rules which support his conscientious belief. Clearness and ambiguity are the polestars upon which his belief is hitched and his determination made. Ofttimes, he turns to concepts of public policy, fair play and tail-twisting language to support his good faith efforts.
Casting aside the intricate rules of law, decedent gave his son a $9,000.00 promissory note made out to himself and payable from the community property of the estate. This was his intention. For Joyce Shadden to search an escape by the invention of technical crevices that may appear finds disfavor in a court of law.
To contend that the Will was not admitted to probate, nor introduced into evidence is facetious. Joyce Shadden’s attorney requested findings that “The Will has been admitted to probate”; that the Will made the specific bequest stated supra and that “The foregoing devise [sic] is not ambiguous.” The other contentions made lack any merit.
Without knowledge of the assets and liabilities of the estate, this appeal should be affirmed, not remanded with instructions to the district court. Payment of the $9,000.00 obligation of the estate must be resolved by the district court.