Graef v. Graef

OPINION COMPTON, Justice. The Bank of Santa Fe filed a petition to probate the Last Will and Testament of Robert W. Graef. Appellees, Susan Wendy Graef and Catherine Eloise Graef, daughters of the decedent by a former marriage, objected to the probate of the will on the ground that his marriage to the appellant, Amber B. Graef, subsequent to the making of the will, invalidated any bequest or devise to her. The trial court concluded that under the provisions of § 30-1-7.1, N.M.S.A.1953 (1967 Supp.), the will was revoked as it concerned the appellant, and she appealed. The facts are not controverted. On February 23, 1968, Robert W. Graef made his Last Will and Testament, which named the appellant, then Amber B. Chittenden, as a beneficiary. On June 15, 1968, Mr. Graef married the appellant. On June 26, 1968, Mr. Graef died. The relevant provisions of the statute read: “A. If after making a will the testator marries and then dies, so far as the surviving spouse is concerned he shall be deemed to die intestate, and the surviving spouse or the descendants of the surviving spouse shall be entitled to such proportion of the estate of the testator as if he had died intestate; and all the other inheritances, devises and bequests shall be reduced a proportional part. * * * ” The appellant argues that we should interpret the statute as to prevent the unintentional disinheritance of a surviving spouse, and that she as the surviving spouse, at her election, has the sole right to invoke the statute, citing cases from other jurisdictions where election is permitted by the surviving spouse. But our statute does not read that way. Here, the statute is clear and unambiguous and is not open to construction. Compare Torres v. Gamble, 75 N.M. 741, 410 P.2d 959; Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200. The legislative intent is clear; the statute clearly operates as to deny the appellant the right to take under the provision of decedent’s will. See Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481; Francis v. Marsh, 54 W.Va. 545, 46 S.E. 573. The judgment should be affirmed. It is so ordered. TACKETT, J., and SPIESS, C. J., Ct. App., concur. HENDLEY, J., Ct.App., dissenting. MOISE, C. J., concurring in dissent.