## Facts

- Joseph L. Hilton (testator) executed a will in 1972 and died in 1980.
- Joseph was survived by his second wife, Ara Hilton, and three daughters: Loretta Szaloy, Ara Carden, and Laura Griffin.
- Joseph also had a son, Elmer Hilton, who died in 1965—before Joseph made the will.
- Elmer left two children, Phyllis Hilton Elkins and Elmer Darrell Hilton (the grandchildren).
- Joseph’s will distributed his estate to Ara Hilton and his three daughters; the grandchildren received no gift under the will.
- The will expressly stated that Joseph had “only three children” (naming the three daughters).
- The will further provided that if any other person claimed to be Joseph’s “child or heir” and proved that claim in court, Joseph would give that person one dollar.
- After Joseph’s death, the grandchildren petitioned for an intestate share, arguing they were omitted heirs under New Mexico’s pretermitted-child statute, N.M. Stat. Ann. § 45-2-302.
- The district court, sitting in probate, denied the claim.
- The grandchildren appealed, arguing (among other points) that the trial court relied on evidence admitted for a limited purpose and that § 45-2-302 entitled them to take despite the will’s omission.

## Issues

1. Did the district court commit reversible error by finding that the testator intended to disinherit the grandchildren based on evidence admitted only for a limited purpose?
2. Were the grandchildren (children of the testator’s predeceased son) entitled to an intestate share under N.M. Stat. Ann. § 45-2-302 as omitted heirs?

## Decision

- The New Mexico Court of Appeals affirmed the order denying the grandchildren an intestate share.
- The court held that the will itself supplied sufficient evidence that the omission of the grandchildren was intentional, including the statement that the testator had “only three children” and the one-dollar clause directed at anyone else who claimed to be a “child or heir.”
- Because the will showed intentional omission, the pretermitted-child statute did not require an intestate share for the grandchildren.
- Any challenged consideration of evidence outside the will did not warrant reversal where the will’s language supported the finding of intentional disinheritance.

## Legal Principles

- Under N.M. Stat. Ann. § 45-2-302, an omitted child (and, in some circumstances, the issue of a deceased child) may take an intestate share unless the will shows the omission was intentional or the statute’s other exceptions apply.
- The purpose of a pretermitted-heir statute is to prevent an unintentional failure to provide for close family members; it does not override a clearly stated intent to exclude.
- Testamentary intent is determined primarily from the will’s text; when the will’s language is clear, it can be enough to show intentional omission without relying on evidence outside the document.
- A will provision stating the testator has only certain children, coupled with a nominal gift to anyone else who proves a claim as a “child or heir,” supports a finding of deliberate disinheritance and defeats a pretermitted-heir claim.

## Conclusion

The Court of Appeals held that Joseph Hilton’s will showed an intent to limit his estate plan to his second wife and three daughters and to exclude any other claimant, including his grandchildren; therefore, the grandchildren were not entitled to an intestate share under New Mexico’s pretermitted-heir statute, and the district court’s denial of their petition was affirmed.


In re Estate of Hilton, 649 P.2d 488, 98 N.M. 420 (1982)