                                                  I attest to the accuracy and
                                                   integrity of this document
                                                     New Mexico Compilation
                                                   Commission, Santa Fe, NM
                                                  '00'05- 15:24:43 2012.12.18
Certiorari Denied, November 1, 2012, No. 33,858

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-121

Filing Date: September 17, 2012

Docket No. 31,184

IN THE MATTER OF THE ESTATE OF
ELIGIO VIGIL, Deceased,

BENJAMIN M. DURAN, Individually and
as Personal Representative of the ESTATE
OF PILAR VIGIL,

       Plaintiff-Appellant,

v.

TONY VIGIL, Personal Representative of
the ESTATE OF ELIGIO VIGIL,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
Sheri A. Raphaelson, District Judge

Ben A. Longwill
Las Cruces, NM

for Appellant

Jane B. Yohalem
Santa Fe, NM

Leof T. Strand
Albuquerque, NM

for Appellee

                                   OPINION


                                        1
VANZI, Judge.
{1}     Appellant Benjamin M. Duran (Duran) appeals from a district court order concerning
the distribution of the Estate of Eligio Vigil (the Estate). We address three issues on appeal:
(1) whether the Legislature intended that statutory allowances that were not claimed while
the surviving spouse was alive be transferred to the estate of the surviving spouse after her
death, (2) whether the district court erred in finding that Appellant failed to prove that he
made tax payments on the homestead owned by the Estate from his personal funds, and (3)
whether the district court erred in directing distribution of the remaining assets in the Estate
directly to the heirs of the surviving spouse rather than to the personal representative of her
estate. We affirm.

BACKGROUND

{2}     The following facts are undisputed. Eligio Vigil (Eligio) died intestate on September
23, 1999. At the time of his death, Eligio was married to Pilar Vigil (Pilar). Eligio and Pilar
had no children together as this was a second marriage for each of them, but they each had
three children from prior marriages.

{3}     On May 1, 2000, Pilar petitioned the district court to appoint her as the sole personal
representative of the Estate. Eligio’s son, Tony Vigil (Tony), responded and also asked to
be appointed personal representative and that the administration be supervised. The district
court appointed both Pilar and Tony as co-personal representatives of the Estate, ordered
unsupervised administration without bond, and ordered that letters of administration be
issued to both personal representatives upon qualification and acceptance.

{4}     Pilar died intestate on May 18, 2006, having survived Eligio by seven years. At the
time of her death, the case involving the Estate had been administratively closed due to
inaction. Tony filed a motion to reopen on June 9, 2009. The motion stated that Pilar had
died, that her son, Duran, was appointed as the personal representative of his mother’s estate
by the Doña Ana County Probate Court, and that Duran intended to replace Pilar as the co-
personal representative of Eligio’s Estate. The motion was granted, and the district court
entered an order of substitution of co-personal representative and substitution of counsel on
July 14, 2009.

{5}     On May 20, 2010, Tony moved to set aside Duran’s appointment of substitution of
co-personal representative on the basis that no letters testamentary and acceptance were ever
issued to Pilar. Before the motion was ruled on, Duran filed a petition for order of complete
settlement adjudicating final distribution of the Estate. The petition provided that the only
asset remaining in the Estate of any value was property (Rinconada property). The
Rinconada property was sold in March 2010 for $150,000, netting $136,026.12 for the
Estate. Duran stated that “disagreements have arisen between the [c]o-[p]ersonal
[r]epresentatives” about the distribution of the proceeds from the sale of the property that
were “resting in the trust account” of Tony’s attorney. The petition requested payment to
Pilar’s estate of a $30,000 statutory family allowance and a $15,000 personal property

                                               2
allowance, prior to distribution of the remaining assets pursuant to the Probate Code’s rules
of intestate succession. See NMSA 1978, §§ 45-2-402 (1995), 45-2-403 (1999) (amended
2011). Further, Duran asked to be personally reimbursed in the amount of $3,967.35 for
property taxes that he claimed to have paid on the Rinconada property from 2000-2009.
Finally, in his capacity as personal representative of Pilar’s estate, Duran requested
distribution of Pilar’s one-fourth intestate share and reimbursement of attorney fees.

{6}     Tony also filed a proposal for distribution of the Estate’s remaining assets and an
accompanying memorandum in support. The proposal agreed that one-fourth of the intestate
share should be distributed to the heirs of Pilar but opposed the granting of either a personal
property or family allowance to Pilar’s estate. With regard to Duran’s claim for
reimbursement of the $3,967.35 in property taxes, Tony’s proposal asked the district court
to consider the request in light of the limitation on presentation of claims set forth in NMSA
1978, Section 45-3-803 (1993) (amended 2011).

{7}      The district court held a hearing on January 3, 2011, and the parties presented
evidence and argument. After allowing both sides to submit requested findings and
conclusions, the court ruled that (1) the statutory allowance claims by Pilar’s estate were
precluded by laches and equitable estoppel and that, alternatively, it would be inconsistent
with the Legislature’s intent to award these allowances to Pilar’s estate or heirs of a
surviving spouse after her death; and (2) although principles of equity would generally
require reimbursement for payment of taxes, in this case, Duran had not provided sufficient
evidence that he had actually paid the taxes and, therefore, his claim was denied. The
district court also ordered distribution of the Estate by intestate succession and right of
representation directly to the heirs. This appeal followed.

DISCUSSION

{8}    Duran raises three issues on appeal. He contends that (1) the district court erred in
denying the family and personal property allowances to the estate of Pilar, (2) the district
court erred in denying Duran’s claim for reimbursement for property taxes paid by him
individually, and (3) the district court erred in directing distribution to the heirs of the
surviving spouse rather than to the personal representative of her estate. We take each of
Duran’s arguments in turn.

Our Legislature Did Not Intend That Statutory Allowances Be Transferred to the
Estate of the Surviving Spouse

{9}     Duran’s first issue on appeal is that the district court erred in denying the family and
personal property allowances to Pilar’s estate. The district court found that, based on the
conduct of Pilar and/or her then attorney, her estate’s statutory allowance claims were
precluded by the doctrines of laches and equitable estoppel. In the alternative, the court
ruled that it would be inconsistent with the Legislature’s intent that the statutory allowances,
which are meant to provide for a surviving spouse during her lifetime, should be awarded

                                               3
to Pilar’s estate or heirs after her death. We conclude that the Legislature did not intend that
the personal allowances be transferred from the estate of the first spouse to the estate of the
surviving spouse. Accordingly, we do not reach the question of whether our Legislature
intended to immunize the statutory allowances from all equitable and legal defenses.

{10} Because our review requires us to interpret provisions of the Probate Code, our
review is de novo. United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030, ¶ 7,
148 N.M. 426, 237 P.3d 728. “The principal objective in the judicial construction of statutes
is to determine and give effect to the intent of the [L]egislature.” Regents of Univ. of N.M.
v. N.M. Fed’n of Teachers, 1998-NMSC-020, ¶ 28, 125 N.M. 401, 962 P.2d 1236 (internal
quotation marks and citation omitted). “The first guiding principle in statutory construction
dictates that we look to the wording of the statute and attempt to apply the plain meaning
rule, recognizing that when a statute contains language which is clear and unambiguous, we
must give effect to that language and refrain from further statutory interpretation.” United
Rentals, 2010-NMSC-030, ¶ 9 (alteration, internal quotation marks, and citation omitted).
Further, we construe the Probate Code in light of its purpose and interpret it “to mean what
the Legislature intended it to mean, and to accomplish the ends sought to be accomplished
by it.” San Juan Agric. Water Users Ass’n v. KNME-TV, 2011-NMSC-011, ¶ 14, 150 N.M.
64, 257 P.3d 884 (internal quotation marks and citation omitted).

{11} Sections 45-2-402 and -403 govern the family and personal property allowance
provisions at issue in this case. Section 45-2-402 states, in relevant part, that “[a] decedent’s
surviving spouse is entitled to a family allowance of thirty thousand dollars ($30,000). If
there is no surviving spouse, each minor child and each dependent child of the decedent is
entitled to a family allowance.” Section 45-2-403 similarly provides a personal property
allowance in household furniture, automobiles, furnishings, appliances, and personal effects
to the surviving spouse in an amount not to exceed $15,000.

{12} Neither provision specifically addresses what happens if the allowances are not
claimed prior to the death of the surviving spouse. What is clear, however, is that these
separate allowances are designated specifically for the personal well being of the surviving
spouse and are not treated the same as amounts inherited from the decedent by will or
intestate succession. See §§ 45-2-402, -403; In re Estate of Jewell, 2001-NMCA-008, ¶ 9,
130 N.M. 93, 18 P.3d 334 (“The purpose of the [statutory] allowances is to ensure that a
surviving spouse is not left penniless and abandoned by the death of a spouse.” (internal
quotation marks and citation omitted)). It would serve no statutory purpose to transfer the
allowances to the surviving—and in this case unrelated—heirs of a surviving spouse. “It is
fundamental that statutes will be construed so that their application will be neither absurd
nor unreasonable.” Midwest Video v. Campbell, 80 N.M. 116, 119, 452 P.2d 185, 188
(1969). Similarly, “[w]e will not construe a statute to defeat [its] intended purpose.” Padilla
v. Montano, 116 N.M. 398, 403, 862 P.2d 1257, 1262 (Ct. App. 1993). Thus, construing the
statutory terms in light of the purposes and objectives of the Probate Code’s provisions on
allowances, we conclude that our Legislature did not intend that statutory allowances


                                               4
unclaimed during the lifetime of the surviving spouse would then be transferred to the heirs
of the surviving spouse.

{13} Duran argues that New Mexico case law supports his position that a surviving
spouse’s right to statutory allowances automatically passes to her estate following her death.
We disagree. The cases cited by Duran hold only that a surviving spouse is entitled to the
family and personal property allowance notwithstanding the testator’s intent. See Conley
v. Quinn, 66 N.M. 242, 252, 346 P.2d 1030, 1036 (1959) (holding that, under the prior
version of the Probate Code’s property allowance provision, a surviving spouse had an
unqualified right to the property); Bell v. Estate of Bell, 2008-NMCA-045, ¶ 35, 143 N.M.
716, 181 P.3d 708 (holding that “transfers outside of a will cannot offset or preclude the
statutory allowances set forth in Sections 45-2-402 and -403”); Salopek v. Hoffman, 2005-
NMCA-016, ¶ 10, 137 N.M. 47, 107 P.3d 1 (reaffirming that “the family allowance and
personal property allowance are not subject to offset or defenses and pass outside the will
by operation of law”); Estate of Jewell, 2001-NMCA-008, ¶¶ 5, 9 (stating that the Probate
Code provides statutory allowances to a surviving spouse on a priority basis exempt from
creditors of the estate and that these allowances pass outside the will by operation of law).
As we have noted, these cases stand only for the proposition that these allowances
“constitute a statutory entitlement for the benefit of surviving spouses.” Estate of Jewell,
2001-NMCA-008, ¶ 9 (emphasis added). Duran has not referred us to any contrary case
interpreting the Uniform Probate Code permitting the statutory allowances to enure to the
benefit of a surviving spouse’s heirs, and we have found none. Where a party cites no
authority to support an argument, we may assume no such authority exists. In re Adoption
of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). Consequently, we hold that
consistent with our rules of statutory construction, as well as the strong public policy in favor
of awarding the allowances so that a surviving spouse would be adequately taken care of
immediately after her spouse’s death, our Legislature did not intend these allowances to be
transferred from the decedent’s estate to the estate and heirs of the surviving spouse. We
affirm the district court’s ruling.

Duran’s Claim for Reimbursement for Payment of Property Taxes Was Properly
Denied

{14} The issue that we next address is whether substantial evidence exists to support the
district court’s finding that there was insufficient evidence to establish that Duran paid the
property taxes out of his personal funds. In accordance with our standard of review, the
judgment of the district court will not be disturbed on appeal if the findings of fact entered
by the court are supported by substantial evidence, are not clearly erroneous, and are
sufficient to support the judgment. See Mascarenas v. Jaramillo, 111 N.M. 410, 412, 806
P.2d 59, 61 (1991) (stating that it is the appellate court’s duty to interpret the district court’s
findings to determine whether they are sufficient to support the judgment). Further, “when
a finding is made against the party with the burden of proof, [the appellate court may] affirm
such a finding if it was rational for the fact finder to disbelieve the evidence offered in


                                                5
support of that finding.” Sosa v. Empire Roofing Co., 110 N.M. 614, 616, 798 P.2d 215, 217
(Ct. App. 1990).

{15} In his petition for order of complete settlement, Duran stated that he individually
claimed reimbursement in the amount of $3,967.35 for property taxes he paid on the
Rinconada property from 2000 to 2008. In support of this contention, Duran filed an
affidavit claiming that “from the year 2000 to 2009, he paid property taxe[s] on the Eligio
Vigil land and house in Rio Arriba County, in the total amount of $3,967.35[.]” At the
January 3, 2011 hearing, Duran’s counsel argued that Duran was entitled to reimbursement
of the taxes paid. The district court disagreed and stated that it had not been adequately
assured that the taxes had been paid out of Duran’s personal funds and that an accounting
of the funds in the Estate would be required to confirm that he had personally paid the taxes.
The court said, “Because of the long delay that has gone on and state of the accounting, . .
. I cannot feel assured that the money that was used to pay the taxes was money that . . .
personally had belonged to . . . Duran and that he has suffered a loss that would require
reimbursement.” Specifically, the court found that Pilar and her family had possession and
control over all the real and personal property of the Estate, that there was no accounting for
those assets as required by NMSA 1978, Section 45-3-706 (1983) of the Probate Code, that
Pilar misrepresented the value of the real property, which was subsequently sold for six
times the amount that Pilar claimed it to be worth, and that the only remaining asset of any
value in the Estate after Pilar’s death was the real property. Therefore, the district court
concluded, the application of equitable principles precluded Duran’s claim for
reimbursement.

{16} Duran’s sole argument on appeal is that Tony “fails to cite any evidence justifying
the district court’s decision” and that he is entitled to reimbursement because his affidavit
recited “that he did pay such property taxes from the year 2000 to 2009.” We are not
persuaded by Duran’s argument. As an initial matter, we note that Duran does not challenge
any of the district court’s findings regarding the misconduct of Pilar and/or her then attorney.
Further, but for the bare assertion in his affidavit, Duran provided no evidence that he
personally paid taxes on the Rinconada property. Even after the district court expressed its
concern at the hearing and suggested an accounting of the funds in the Estate could confirm
that Duran personally made the payments, he did not come forth with any additional
evidence. We cannot say that the district court erred in finding that Duran failed to carry his
burden of proving that he paid the taxes from his personal funds rather than from the Estate’s
funds.

Duran Failed to Preserve His Claim That the Share of the Estate Must Be Distributed
to Him as Personal Representative of Pilar’s Estate

{17} Duran’s final argument on appeal is that the district court erred in directing
distribution of the Estate directly to the heirs of the surviving spouse rather than to him as
the personal representative of Pilar’s estate. Tony contends that Duran failed to preserve this
claim and, for the reasons that follow, we agree.

                                               6
{18} “To preserve an issue for review on appeal, it must appear that appellant fairly
invoked a ruling of the trial court on the same grounds argued in the appellate court.”
Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987). Duran
asserts that his argument in the district court and his requested findings and conclusions
sufficiently preserved the issue for our review. At the conclusion of the January 3, 2011
hearing, counsel for Tony raised the issue of distribution of that part of the Estate inherited
by Pilar. The following colloquy took place between counsel and the court:

       Counsel for Tony:       If you could provide out of Pilar’s estate down in
                               Doña Ana County a determination of heirship, file it,
                               so we could rely on it and utilize that. . . .

       Court:                  Right. Is there any problem doing that?

       Counsel for Duran:      I would see no reason not to just distribute it to . . .
                               Duran as the personal representative.

       Counsel for Tony:       He’s not the personal representative [of Pilar’s estate].
                               . . . If we gave it to Pilar’s estate, we would be
                               exposing ourselves to claims from every one of her
                               heirs.

       Court:                  Has a determination of heirs been made in Pilar’s
                               estate in [the probate case]?

       Counsel for Duran:      No, there’s no doubts or controversy.

       Counsel for Tony:       Hopefully you can just file one and get a conformed
                               copy to me and then we could utilize that in our
                               distribution.

       Counsel for Duran:      Well, it’s in the Probate Court, and they don’t have
                               hearings that make these—

       Court:                  No, but it has been filed.

       Counsel for Duran:      Oh yes. Yes, in Probate Court in Doña Ana County.

       Court:                  Well alright. Well can you just get a copy of the
                               determination of heirs from Pilar’s probate file and
                               get it to [Tony’s counsel] and then he can—

       Counsel for Duran:      Well, I can get him a copy of the petition which states
                               [who] they are.

                                              7
        Court:                  And it’s unopposed? Nobody filed anything in
                                opposition to the proposed heirs?

        Counsel for Duran:      No. Nobody.

        Court:                  Well that should be enough.

        Counsel for Tony:       Does it list all the heirs?

        Counsel for Duran:      Of course.

        Court:                  Alright. That should be enough if you relied on that.

{19} Based on the above, it is clear that although Duran’s counsel said there was no reason
not to distribute to the personal representative, he made no objection when the district court
agreed to distribute the property directly to Pilar’s heirs and, in fact, he agreed to provide
a list of heirs to Tony’s counsel. In addition to failing to object, Duran’s counsel made no
legal argument that distribution to the personal representative was required as a matter of
law, and he cited no law to that effect. Preservation serves the purposes of (1) allowing the
trial court an opportunity to correct any errors, thereby avoiding the need for appeal, and (2)
creating a record from which the appellate court can make informed decisions. Diversey
Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶ 38, 125 N.M. 748, 965 P.2d 332.
Counsel’s failure to timely object to the district court’s ruling precludes review by this
Court.

{20} Further, we are not persuaded that Duran’s single proposed conclusion of law stating
that “[t]he portion of th[e E]state to which the heirs of Pilar . . . are entitled is properly
payable to her [p]ersonal [r]epresentative and not directly to her heirs” was sufficient to alert
the district court that it needed to rule on the matter. We note that Duran’s proposed findings
and conclusions, which were filed simultaneously with the ones filed by Tony, did not
reference the Probate Code cited to on appeal and did not give the opposing party a fair
opportunity to meet the alleged objection. As such, Duran failed to preserve this argument
for review by this Court, and we will not address it further. See Rule 12-216(A) NMRA
(“To preserve a question for review it must appear that a ruling or decision by the district
court was fairly invoked[.]”); State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct.
App. 1986) (“The [district] court had no opportunity to consider the merits of, or to rule
intelligently on, the argument [the] defendant now puts before us.”).

CONCLUSION

{21}    For the reasons set forth above, we affirm the judgment of the district court.

{22}    IT IS SO ORDERED.


                                               8
                                                ____________________________________
                                                LINDA M. VANZI, Judge

I CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

RODERICK T. KENNEDY, Judge (specially concurring).

KENNEDY, Judge (specially concurring).

{23} I concur fully with the Majority Opinion in denying the personal allowances, which
I believe the statute causes to expire with the spouse whose personal entitlements they are
and the denial of Duran’s claim for reimbursement for the property taxes. I have serious
reservations that would ordinarily cause me to dissent from affirming the distribution of
Pilar’s share of Eligio’s Estate. It appears to me that the findings of the district court and
decision to do so were not supported by substantial evidence, and the district court might not
have had any subject matter jurisdiction over Pilar’s estate. However, as noted by the
majority, Duran’s general objection that the district court had no power to distribute Pilar’s
interest to persons who might be her heirs was not preserved, waived, or, in my view,
adequately presented so as to be incapable of resolution. My dissatisfaction with the
litigation is therefore secondary to my concurring with the result as to the distribution of
Pilar’s interest in Eligio’s Estate. I will, however, state my reservations about what I believe
to be the district court’s overreaching.

{24} Duran’s participation in this case was originally as a substituted personal
representative of Eligio’s Estate to occupy Pilar’s shoes. Eventually, the district court found
only that Duran was one of Pilar’s three children. It also found that Duran had two siblings,
since deceased, who had nine children among them. It then proceeded to conclude that those
persons were Pilar’s heirs and entitled to her interest by representation. The district court
divided Pilar’s share and ordered it distributed to persons, including Duran, whose heirship
was determined, according to the quoted transcript, based on no more than their inclusion
in the petition for probate in Doña Ana County. I believe that bypassing what appeared to
be the separate and unrelated probate action concerning Pilar’s estate, by making
determinations of heirship concerning persons who were not a part of Eligio’s probate, was
beyond the district court’s power to act.

{25} “[D]istrict courts sitting in probate possess only the jurisdiction conferred upon them
by statute.” In re Estate of Harrington, 2000-NMCA-058, ¶ 14, 129 N.M. 266, 5 P.3d 1070.
“There are three jurisdictional essentials necessary to the validity of every judgment, to wit,
jurisdiction of parties, jurisdiction of the subject matter, and power or authority to decide the
particular matters presented[.]” In re Field’s Estate, 40 N.M. 423, 425, 60 P.2d 945, 947
(1936). In this case, NMSA 1978, Section 45-1-302(A)(1) (1978) (amended 2011) conferred

                                               9
upon the district court authority over “formal proceedings with respect to the estates of
decedents, including determinations of testacy, appointment of personal representatives,
constructions of wills, administration and expenditure of funds of estates, determination of
heirs and successors of decedents and distribution and closing of estates[.]” The only
decedent’s estate before the court in this case was that of Eligio. Determinations of Pilar’s
testacy, existence of any personal representative, and determination of heirs and successors-
in-interest of Pilar and the distribution and closing of her estate were all matters explicitly
and implicitly determined by the district court in this case. All derive from Pilar’s estate
and, hence, were not before the district court whose case was limited to Eligio’s intestate
estate. Undertaking to handle matters that were the essence of another estate (Pilar’s) not
before the district court was beyond this district court’s jurisdiction.

{26} Duran requested distribution of Pilar’s portion of Eligio’s Estate to him as personal
representative of her estate. The same request—handing over Pilar’s share to Duran in his
representative capacity—was made by Tony. Even during the curious conversation cited by
this Opinion, Duran’s attorney is steadfast in his desire for distribution to Duran alone.
Tony’s attorney continued to support the distribution to Duran, although it was obviously
out of little more than fear of the prospect of getting things wrong and becoming liable to
unknown heirs. Citing to the conversation over the “other heirs,” rather than supporting a
waiver by Duran, the Opinion enshrines the central problems of this case. First and
foremost, there is no verified evidence in the record that Duran really is the personal
representative of Pilar’s estate, as there is no documentation of any probate of her estate,
which he asserted was attached to various pleadings, but never appears in the record.
Second, the transcript identifies the other “heirs” by no more than their inclusion in the
“petition” for the Doña Ana County probate case. This seems like a lack of substantial
evidence.

Substantial Evidence

{27} Duran’s counsel’s answers to the court concerning the identification of the heirs
studiously evade any affirmation that any actual determination of heirship has been made in
Doña Ana County. Duran’s counsel says no more than there has been no determination of
heirship concerning them and that the only document in the supposed probate that names
them is the caption of the petition. It is the “copy of the petition which states who they are”
that the district court deems sufficient, if Tony’s counsel relied on it, and nowhere does
Tony’s counsel say he found any such thing to be reliable. The district court’s conclusion
of “[t]hat should be enough if you relied on that” is not a statement that smacks of sufficient
evidence as to this case properly making any distribution to Pilar’s heirs. Indeed, counsel
for Tony asserts with equal authority as anything else that Duran is “not the personal
representative of Pilar’s estate,” and asserts possible exposure to claims “from every one of
her heirs” without more documentation. Dutifully, Tony’s counsel included the information
in his findings and conclusions, which were adopted by the district court. Indeed, in the
district court’s order, no heir of Pilar’s estate is named but Duran with the rest mentioned
only as descendants of Duran’s deceased siblings of whose existence there is no primary

                                              10
evidence in the record. The award to these ten persons is therefore based on no more than
judicial ipse dixit, concluding without support that Tony’s side had relied on the information.

{28} Duran is similarly less than forthcoming about his entitlement as personal
representative to force a distribution to him. Unfortunately, Duran’s sole citation to Medina
does not stand for the proposition of “property must be given to the representative.” That
proposition is dicta. Medina might, however, stand for the salutary proposition for this case
that Duran should have gotten an order from the Doña Ana County probate case to be duly
provided to the district court that identified him as the personal representative of Pilar’s
estate. Such an order may have further authorized him in that capacity to take possession
of Pilar’s entitlement from Eligio’s Estate to be probated in her estate’s case elsewhere. No
such situation existed.

{29} Both parties were singularly unhelpful in providing any less speculative authority.
The impetus to distribute Pilar’s share to persons whose identity is neither established in the
evidence, nor named in the district court’s order, appears to be solely the district judge’s,
who was singular in the pursuit of a bad idea not supported or requested by either party.
Consequently, the district court denied the sole distribution request and, apparently sua
sponte, concluded to distribute Pilar’s marital intestate portion of Eligio’s Estate to Pilar’s
unidentified heirs in intestacy.

{30} The distribution of assets by Rio Arriba County district court that are part of the
separate estate of another deceased person (Pilar), which estate is not before the court, and
in fact supposedly the subject of a separate action in Doña Ana County seems to be a
problem. If the district court had no jurisdiction to act with regard to Pilar’s estate, its action
is void ab initio regardless of Duran’s preservation problems.

{31} I do question whether venue over Pilar’s estate is proper in Rio Arriba County.
Because Pilar died in Doña Ana County, and the probate of her estate was supposedly filed
there, I also question whether the Rio Arriba County district court had the authority to decide
matters that were in play simultaneously in another probate action concerning another estate
in another district court. Perhaps ordering Pilar’s share to be held in the Rio Arriba district
court registry for later release on authority of the Doña Ana County district court, or
transferring Pilar’s share to the registry of the Doña Ana County district court would have
been the proper way to go. Given Duran’s slim proof of his claim for reimbursement and
insistence that the entire proceeds be paid to him, I cannot help but think that his
representations that all of Pilar’s heirs were ascertained and were not disputing that they
were the only heirs, may be worthy of some healthy skepticism. Perhaps that is why the
district court did not want to make a grant of Pilar’s interest in Eligio’s Estate to Duran
alone. Questions like that would best be resolved in Doña Ana County and not by the
district judge in this case. However, writing as I do to point out what questions I have about
the evidence and procedure in this matter is not tantamount to litigating the parties’ interests.
Since Duran did not pursue these avenues, I concur with the majority in all respects.


                                                11
                                             ____________________________________
                                             RODERICK T. KENNEDY, Judge

Topic Index for Duran v. Vigil, No. 31,184

APPEAL AND ERROR
Preservation of Issues for Appeal
Standard of Review
Substantial or Sufficient Evidence

CIVIL PROCEDURE
Equitable Claims or Defenses
Estoppel
Laches

JURISDICTION
District Court
Subject Matter
Venue

TAXATION
Property

WILLS, TRUSTS, AND PROBATE
Allowances
Distribution
Intestacy
Personal Representative

STATUTES
Interpretation
Legislative Intent
Rules of Construction




                                         12
