Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1919-10-19

widow instituted an action in the dis.
| trict court to, have the three execu.
tors of the estate removed from Of
flee on the ground of neglect of duty
by them. The cause together with
the other two causes were CONSOLIDATE
ed for trial in the district court AMI
/ heard with the case certified to tho
district court by the probate court
Judgments were rendered by the dis
trict court holding in substance and
effect that the will of July 6, 1915,
was fabricated by Venceslao s. Miera
after the death of EpimAhio A.
Miera. That the July will was in
valid; that the August will was in all
respects valid, and that the executors
had been guilty of neglect of duty.
From such judgments John w.
Ackers and others appealed to this
court. Judgment of the court below,
affirmed
Syllabus by the Court
]. When an instrument purporting
to be will has been declared invalid
by the probate court, the district
court has jurisdiction to hear and de-
termine its validity after the record
of the probate court has been regular
ly transmitted to it.
2. The action Of the probate court
in probating will may be reviewed
under sections 1881 and 1889, Code
1915, either by contest in the probate
court or by appeal to the district
court.
3. Section 1888, Code, 1915, CON
strued, and held that the record on
appeal from the probate to district
court is sufficient if properly certi-
fled and the record of the pro.
ceedings at the trial in the probate
court need not be made a part of the
record by bin of exceptions,
4. Sections 1899, Code, 1915, con
strued, and held that there are no
formal parties to cause in the pro- |
bate court wherein a will is offered |
for probate, and that the word |
party in the salute means "per
SON. aggreved Held further, that
the widow of the deceased is an ag-
srieved party within the meaning Of
the statute.
5. Upon appeal from the probate 4
court to the district court from an L
order or judgment admitting or de II
aging the probate of a will the cause
S tried de novo."
6, The action of the trial court in
ordering the removal of appellants AS
EXECUTORS, held immaterial under the
circumstances.
I. The appointment of an admin Il
strator with the will annexed is void
when the persons named in the will, i
Competent to act are appointed and
ccept the trust.
Opinion by Parker. C. j.; Roberts,
i, Holloman, D, j., concurring.
Elannnrn No III
ant, vs.. Augusta Kopp, appellee
anita Fe county. No. 2291.
A decree was rendered for the sum
I $4Sf40 and $50 attorneys fees and
osts against appellee upon a promis-
DRY note and for the foreclosure of
mortgage given to secure the same
he special master appointed in tho
ecree to make sale of the property
aving removed from the state, an
ther person was substituted by q
lbsequent order entered March 16. :
slS, and he proceeded to advertise
lie property for sale. The appellee
ppeared in the cause and moved to
AGATE the order, appointing said last
)ecial master and to hold for naught
he publication of said notice of sale
men was granted. Appellant has
opealed from this judgment
Judgment of the court below, re-
srsed, cause remanded.
Syllabus by the Court.
]. Any action on the part of de.
ndant, except to- object to the iuris-
ction of the court which recognizes 4
e case as pending in the court will
mount to general appearance.
2. The effect of a general ap-
,arance after judgment is to waive
questions as to the jurisdiction of
e person to defendant at the time
the rendition of the decree.
g. general appearance after de-
ee of foreclosure of a mortgage
ecludes defendant from raising
estions as to errors in the jud9-
emit.
4. Sections 2190, 2191, 30S5. 30s6,
AZ and Ass. Code, 1915, interpret
and held that decree of foreclos-
G of mortgage is not such a iude-
ent as fails within the terms of tie
ltute which renders a judgment
rmant after fiye years from IT'S