October 15, 2020- Premier Oil & Gas Inc. v. James Wesley Welch, No. A-1-CA-37121

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: October 15, 2020	3
No. A-1-CA-37121	4
IN THE MATTER OF THE LAST WILL	5
AND TESTAMENT OF MARIE G.	6
WELCH, Deceased,	7
PREMIER OIL & GAS, INC. and RALPH	8
S. GRIFFIN,	9
Intervenor Plaintiffs/Appellees,	10
v.	11
JAMES WESLEY WELCH; JOE	12
MICHAEL WELCH; and BARBARA	13
GRACE PARKER,	14
Intervenor Defendants/Appellants,	15
and	16
SAMUEL G. ALDERMAN a/k/a SAMUEL G.	17
ALDERMAN, JR.; RALPH S. GRIFFIN;	18
UNKNOWN HEIRS OF JOE H. WELCH,	19
Deceased; BARBARA S. WELCH; N.	20
STEWART WELCH; UNKNOWN HEIRS OF	21
GRACE WELCH PHELAN, Deceased;	22
ESTATE OF DAVID PAUL RAETHER; FRED	23
WALTER RAETHER; STEVEN LEE	24
RAETHER; AMANDA MARIE WALKER;	25
Court of Appeals of New Mexico
Filed 10/15/2020 11:51 AM

WAYLON RAETHER; UNKNOWN HEIRS	1
OF JUDGE H.D. GRIFFIN, Deceased; BLAIR	2
SEATON CROOKE; LISA DALE CROOKE	3
LAMPEL; FOREST ASHLEY CROOKE;	4
UNKNOWN HEIRS OF MARIE G. WELCH,	5
Deceased; and UNKNOWN CLAIMANTS OF	6
INTEREST IN THE PREMISES,	7
Intervenor Defendants.	8
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY	9
William G.W. Shoobridge, District Judge	10
Rodey, Dickason, Sloan, Akin & Robb, P.A.	11
Jocelyn Drennan	12
Edward Ricco	13
Albuquerque, NM	14
Thompson & Knight LLP	15
Gregory D. Binns	16
Dallas, TX	17
for Appellee Premier Oil & Gas, Inc.	18
Martin, Dugan & Martin	19
W.T. Martin Jr.	20
Kenneth D. Dugan	21
Carlsbad, NM	22
for Appellee Griffin	23
Montgomery & Andrews, P.A.	24
Sharon T. Shaheen	25
Kaleb W. Brooks	26
Santa Fe, NM	27

Kelly Hart & Hallman LLP	1
Harold L. Hensley, Jr.	2
Bill B. Caraway	3
Jeff Kuhnhenn	4
Midland, TX	5
David E. Keltner	6
Marianne M. Auld	7
Matthew D. Stayton	8
Fort Worth, TX	9
for Appellants	10

OPINION	1
B. ZAMORA, Judge.	2
{1} 	James Wesley Welch, Joe Michael Welch, and Barbara Grace Parker,	3
(collectively, the Welches) appeal the district court’s grant of summary judgment	4
quieting title in favor of Premier Oil & Gas Inc. (Premier) and Ralph S. Griffin, and	5
finding that Premier is a bona fide purchaser with respect to the minerals (the	6
Minerals) at issue in this case. On appeal, the Welches argue that the district court	7
erred in granting summary judgment in favor of Griffin and Premier because the	8
wills at issue devised vested future interests in the Minerals to the Welches’	9
predecessors in title, and because the proceeding through which Griffin derived his	10
title to the Minerals is void for lack of proper notice. The Welches further contend	11
that the district court erred in refusing to construe the terms of the 1980 will (the	12
1980 Will) because the district court misapplied our probate code’s statutory bars.	13
For the reasons that follow, we affirm the district court’s grant of summary judgment	14
in favor of Premier with respect to its status as a bona fide purchaser but reverse the	15
grant of summary judgment in favor of Griffin.	16
BACKGROUND	17
{2} 	A long and complicated chain of events led to the district court’s ruling in this	18
case. Nearly two dozen separate individuals and corporations were parties to this	19
case at various points. Purported interests in the Minerals were repeatedly sold and	20

2
transferred, and multiple claimants to the Minerals passed away during the course of	1
the events we describe below. For the sake of expediency, efficiency, and clarity, we	2
present here only those facts relevant to our ultimate holdings.	3
A. 	The Parties	4
{3} 	At issue in this case are rights of ownership to Minerals located in Eddy	5
County, New Mexico, which derive from Herbert and Marie Welch, husband and	6
wife, who owned the Minerals as joint tenants. Herbert and Marie had no children.	7
The Welches claim title to the Minerals based on devises to their predecessors in	8
interest, Joe H. Welch (Herbert’s brother) and Grace Welch Phelan (Herbert’s sister)	9
made by Marie and Herbert. Barbara Grace Parker is the granddaughter of Grace	10
Welch Phelan. James Wesley Welch and Joe Michael Welch are the sons of Joe H.	11
Welch.	12
{4} 	Griffin is Marie’s nephew, and claims title to the Minerals through a 2007	13
heirship 	proceeding (the 2007 	Heirship 	Proceeding). Finally, Premier claims	14
ownership of the Minerals through purchase; a series of transactions resulted in	15
Premier’s ultimate ownership of the Minerals after they were sold by Griffin.	16
{5} 	While not a party to this appeal, Samuel G. Alderman (deceased) filed the	17
underlying proceeding now subject to this appeal and played an important factual	18
role in this matter. Alderman is Marie Welch’s cousin, and claims an interest in the	19
Minerals through devise.	20

3
B. 	The 1974 Will	1
{6} 	The factual events leading to this appeal began over forty-six years ago. On	2
February 6, 1974, Herbert and Marie Welch executed a joint last will and testament	3
(the 1974 Will). In paragraph two of the 1974 Will, Herbert devised to Marie “all of	4
[his] property of every kind, both real and personal, wherever the same be found or	5
located.” However, paragraph six of the 1974 Will provided “[t]hat the survivor shall	6
divide our estate, which is community property, in the following manner, to-wit; the	7
community interest of HERBERT WELCH shall be equally divided between Joe H.	8
Welch, his brother, and Grace Welch Phelan, his sister[.]”	9
{7} 	After Herbert’s death, Marie filed an action to probate the 1974 Will in Eddy	10
County, New Mexico (the 1975 Proceeding). The probate court entered a final	11
decree in the 1975 Proceeding, finding that Marie was the sole beneficiary, heir,	12
devisee, legatee, and interested party with respect to Herbert’s estate, and ordering	13
all of Herbert’s property distributed to Marie. While serving as executrix of	14
Herbert’s estate, Marie executed a mineral deed transferring the Minerals to herself	15
as a “feme sole.” The legal description of the minerals set forth in the deed	16
encompasses all of the mineral interests at issue in this case. No person has ever filed	17
a direct challenge to the 1975 Proceeding.	18

4
C. 	The 1980 Will	1
{8} 	The record suggests that Marie drafted a number of wills, including a 1976	2
will (the 1976 Will) between the time of Herbert’s death, and her own death in 1987.	3
In 1980, Marie executed the 1980 Will, which is the latest will that appears in the	4
record before this Court. The 1980 Will contains the following relevant provisions:	5
ITEM 6.	6
If owned by me at my death, I give, devise and bequeath my	7
undivided one-fourth (1/4) interest in mineral rights that I received from	8
my deceased husband to Joe H. Welch of Carlsbad, New Mexico;	9
however, if he should predecease me then I hereby give, devise and	10
bequeath that share to the issue of his body per stirpes.	11
ITEM 7.	12
If owned by me at my death, I give, devise and bequeath all	13
mineral rights owned by me in my own name on properties in Montana	14
and New Mexico in equal shares to Ralph S. Griffin of Carlsbad, New	15
Mexico and Samuel G. Alderman of Jacksonville, Florida.	16
Marie named Alderman as her personal representative, and provided Alderman with	17
the original of the 1980 Will shortly after its execution.	18
{9} 	Marie moved to Florida sometime prior to July 1976. She died on December	19
27, 1988, in Duval County, Florida. No one attempted to probate the 1980 Will	20
within three years of Marie’s death, nor did anyone take steps to dispose of Marie	21
Welch’s estate in accordance with the terms of any will or the law of intestacy until	22
2007. Alderman held that the 1980 Will was in his possession, but did not offer it	23
for probate because he was hiding from creditors.	24

5
D. 	The 2007 Heirship Proceeding	1
{10} 	Griffin knew that Marie had executed a will in 1976, however he was not	2
aware of its contents, he did not have the will in his possession, and he did not know	3
the identities of any devisees other than himself and Alderman. There is no evidence	4
that Griffin was aware of the 1980 Will. In the months following Marie’s death,	5
Griffin attempted to contact Alderman by phone and in writing on several occasions	6
to discuss Marie’s estate, and probate of the 1976 Will. In one such letter, Griffin	7
wrote, “I am not sure if you have probated Aunt Marie’s will or if she had a new one	8
written since the one dated July 6, 1976 in which uncle Harvey was named executor	9
with you and me as co-executors.” Alderman did not respond to Griffin’s attempts	10
to discuss Marie’s estate by phone and letter, and at some point, his telephone was	11
disconnected. Griffin checked the probate records in Florida to determine if Marie’s	12
estate had been probated, but his search revealed no records. Griffin eventually hired	13
a private investigator to locate Alderman in a final attempt to determine the status of	14
Marie’s estate, but the private investigator was unable to locate him.	15
{11} 	On January 16, 2007, more than seventeen years after his efforts to locate	16
Alderman and the 1976 Will proved unsuccessful, Griffin filed a petition for	17
determination of heirship in New Mexico with respect to Marie (the 2007 Heirship	18
Proceeding). In his petition for determination of heirship, Griffin declared that Marie	19
died intestate and that he was Marie’s sole heir. Griffin did not make any further	20

6
efforts to locate Alderman and noticed the 2007 Heirship Proceeding by publication	1
alone, addressing the notice “to the unknown heirs of Marie Griffin Welch[,]”	2
without naming specific individuals. On March 30, 2007, the court issued a final	3
judgment in the 2007 Probate Proceeding. The district court found that Marie Welch	4
died intestate, that Griffin was her sole heir, and awarded title to the Minerals to	5
Griffin as his sole and separate property. No person has ever previously filed a direct	6
challenge to the validity of the 2007 Heirship Proceeding. 1
7
E. 	The 2012 Proceeding	8
{12} 	In 2012 Alderman filed a petition for formal probate of will and appointment	9
of personal representative, initiating the present litigation (the 2012 Proceeding).	10
Alderman sought to probate the 1980 Will and obtain title to certain portions of the	11
Minerals. Griffin joined the 2012 Proceeding and opposed Alderman’s efforts to	12
probate the 1980 Will and appoint himself personal representative. The district court	13
admitted 	the 	1980 	Will 	to 	probate 	and 	appointed 	Alderman 	as 	personal	14
representative of the Estate over Griffin’s objection.	15
{13} 	Griffin appealed, challenging the district court’s jurisdiction and contending	16
that 	probate 	of 	the 	1980 	Will 	and 	appointment 	of 	Alderman 	as 	personal	17
1 Following the 2007 Heirship Proceeding, Griffin transferred his purported
interest 	in 	the 	Minerals 	to 	Griffin 	Minerals, 	LLC, 	and 	the 	Minerals 	were
subsequently sold and transferred between several oil and gas entities before being
ultimately purchased by Premier.

7
representative were barred by the statute of limitations, res judicata, collateral	1
estoppel, and laches. Principally, Griffin claimed that the 2007 Heirship Proceeding	2
barred the 1980 Will from probate because the judgment issued in the 2007 Heirship	3
Proceeding declared that Marie died intestate.2 In March 2014 this Court remanded	4
the matter, directing the district court to analyze the applicability of NMSA 1978,	5
Sections 45-3-108 (2011) and 45-3-412 (1995) to Alderman’s attempt to probate the	6
1980 Will, to produce an order setting forth the facts and law underlying its	7
determination, and to conduct such further proceedings as the district court deemed	8
necessary and consistent with the appellate order.	9
{14} 	Following remand from this Court, a number of interested parties joined or	10
intervened, including the Welches and Premier. The Welches filed counterclaims	11
seeking both a declaration of their rights under the 1974 and 1980 wills and a	12
declaration that the 2007 Judgment was void for lack of jurisdiction due to improper	13
service and due process violations.	14
F. 	The District Court Ruling	15
{15} 	Following further litigation, the Welches, Premier, and Griffin filed cross-	16
motions for summary judgment in the 2012 Proceeding. The Welches sought to have	17
2 While Griffin’s appeal was pending, Alderman (individually and as the
personal representative of the Estate) executed an oil and gas lease with Mewbourne
Oil Company covering the Minerals. Premier has since acquired this lease and is the
lessee thereunder.

8
the 2007 Heirship Proceeding declared void, sought a ruling from the district court	1
that Premier could not claim bona fide purchaser status, and sought to quiet title to	2
the Minerals in themselves. In contrast, Griffin sought a ruling that the 2007 Heirship	3
Proceeding was binding, and Premier sought to confirm title to the Minerals in itself,	4
as well as a declaration that Premier was a bona fide purchaser. The district court	5
entered an order granting summary judgment in favor of Premier and Griffin, finding	6
that Griffin was the sole heir of Marie, that Marie died intestate, that Premier is a	7
bona fide purchaser of the Minerals, and that the Welches claims are barred by the	8
provisions of the probate code, by statutes of limitation, and by various equitable	9
doctrines. This appeal followed.3
10
DISCUSSION	11
{16} 	“Summary judgment is appropriate where there are no genuine issues of	12
material fact and the movant is entitled to judgment as a matter of law.” Bank of N.Y.	13
Mellon v. Lopes, 2014-NMCA-097, & 6, 336 P.3d 443 (internal quotation marks and	14
citation omitted). “The movant need only make a prima facie showing that he is	15
entitled to summary judgment. Upon the movant making a prima facie showing, the	16
burden shifts to the party opposing the motion to demonstrate the existence of	17
3 Of the numerous parties to this case, only the Welches appeal from the district
court order, and only Griffin and Premier filed answer briefs.

9
specific evidentiary facts which would require trial on the merits.” Id. (internal	1
quotation marks and citation omitted).	2
{17} 	“On appeal from the grant of summary judgment, we ordinarily review the	3
whole record in the light most favorable to the party opposing summary judgment	4
to determine if there is any evidence that places a genuine issue of material fact in	5
dispute.” City of Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081,	6
¶ 7, 146 N.M. 717, 213 P.3d 1146. “However, if no material issues of fact are in	7
dispute and an appeal presents only a question of law, we apply de novo review and	8
are not required to view the appeal in the light most favorable to the party opposing	9
summary judgment.” 	Id. 	The parties do not dispute any material facts, and	10
accordingly, we apply a de novo review standard.	11
{18} 	“Statutory construction is a matter of law we review de novo.” State v. Nick	12
R., 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868. “When facts relevant to a	13
statute of limitations issue are not in dispute, the standard of review is whether the	14
district court correctly applied the law to the undisputed facts.” LSF9 Master	15
Participation Tr. v. Sanchez, 2019-NMCA-055, ¶ 10, 450 P.3d 413 (internal	16
quotation marks and citation omitted).	17
{19} 	On appeal, the Welches assert seven distinct arguments and allegations of	18
district court error. Because our holdings with respect to the finality of the 1974 Will,	19
notice of the 2007 Heirship Proceeding, proper application of the provisions of the	20

10
probate code, and Premier’s status as a bona fide purchaser are dispositive, we	1
address only the parties’ arguments on these points.	2
I. 	The 1974 Will	3
{20} 	The Welches argue that the 1974 Will devised vested future interests in the	4
Minerals to the Welches’ predecessors in title. They argue that these vested future	5
interests pre-date and preclude Griffin’s mineral title claims derived from the 2007	6
Heirship Proceeding. Because the unchallenged 1975 Proceeding is a binding and	7
final adjudication of rights under the 1974 Will, and because the final decree in that	8
proceeding awarded the entirety of Herbert’s estate to Marie, we disagree that the	9
Welches acquired any vested future interests in the Minerals through the 1974 Will.	10
{21} 	The Welches claim that the 1974 Will was a contractual will that granted	11
Marie a life estate in Herbert’s half of the community Minerals, the remainder of	12
which created vested interests in the Minerals in favor of the Welches’ predecessors	13
in interest. The Welches contend that the 1975 Proceeding probating the 1974 Will	14
did not adjudicate whether the Welches’ predecessors possessed future interests in	15
Herbert’s community share of the estate, nor make any determination as to heirship	16
or title. Alternatively, the Welches argue that even if the probate court did determine	17
title, the adjudication is void because the probate court had no jurisdiction over	18
issues of title. The Welches cite to case law from other states standing for the	19
proposition that a final decree admitting a will to probate does not constitute a final	20

11
adjudication of will construction, and assert that the district court in this case erred	1
in refusing to construe the final decree issued in the 1975 Proceeding. The Welches	2
urge us to undertake the task that the district court declined—to construe the terms	3
of the 1974 Will, declare it contractual, and hold that the Welches obtained a vested	4
interest in the Minerals. We decline to do so.	5
{22} 	We begin by addressing the Welches’ argument that the probate court	6
presiding over the 1975 Proceeding lacked the power to make determinations	7
regarding title. The law (as it existed when the final decree in the 1975 Proceeding	8
was entered) required probate courts to “determine the heirship to [the] decedent,	9
the ownership of his estate, and the interest of each respective claimant thereto, or	10
therein, and the persons entitled to distribution thereof[.]” NMSA 1953, § 31-12-12	11
(1925). The law further specified that “the final determination of the court . . . shall	12
be final and conclusive in the distribution of said estate and in regard to the title to	13
all property of the estate[.]” Id. (emphasis added); see In re Conley’s Will, 1954-	14
NMSC-112, ¶¶ 13-16, 58 N.M. 771, 276 P.2d 906 (concluding that probate courts	15
have jurisdiction to make determinations of estate distribution that are binding on	16
the world). A constitutional amendment adopted in 1949, which remains unchanged	17
to the present day, granted probate courts jurisdiction to determine heirship with	18
respect to real property. See N.M. Const. art. VI, § 23 (stating that “the probate courts	19
of New Mexico . . . shall also have jurisdiction to determine heirship with respect to	20

12
real property in all proceedings for the administration of decedents’ estates”). While	1
the Welches claim that this constitutional provision limits probate court jurisdiction	2
to determine title to real property outside the context of an heirship determination,	3
we construe this provision as a grant of explicit power rather than a limitation, and	4
in combination with the aforementioned case and statutory law, we conclude that the	5
probate court had jurisdiction to enter a final decree determining title to the Minerals	6
when it administered Herbert’s estate. The statutory language of the probate code	7
and the constitutional amendment permitted probate courts to determine title in	8
proceedings involving administration of estates, whether by heirship or by devise	9
through a will.	10
{23} 	We turn now to the Welches alternative argument—that even if the probate	11
court had jurisdiction to adjudicate title, it did not actually do so. At the conclusion	12
of the 1975 Proceeding, the probate court issued a final decree listing Marie as the	13
sole heir, devisee, legatee, and interested party with respect to the 1974 Will. The	14
final decree states in relevant part,	15
Under the terms of the Last Will and Testament of the deceased, his	16
wife, Marie G. Welch having survived the decedent was devised and	17
bequeathed the entire estate; and all properties involved have been	18
liquidated or transferred pursuant to the aforesaid provisions of the Last	19
Will and Testament of Herbert Welch.	20
. . . .	21
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED . . . .	22

13
That 	all 	the properties 	as 	shown 	in 	the 	[i]nventory not 	already	1
transferred be, and they are hereby, ordered distributed to Marie G.	2
Welch[.]	3
This language in the probate court’s final decree clearly articulates the court’s intent	4
to resolve any and all interests in property of the estate. The fact that the final decree	5
does not mention the word “title” does not mean, as the Welches contend, that the	6
probate court did not adjudicate title to the Minerals.	7
{24} 	Further, while no party has referred us to the inventory, we note that Marie	8
Welch provided the probate court with a signed affidavit stating, “[t]he decedent	9
died seized of real estate described in the [i]nventory on file herein. Said real	10
property vests as provided in the Last Will and Testament of Herbert Welch,	11
deceased, and in accordance with the laws of the State of New Mexico, in its entirety,	12
in Mare G. Welch.” The inventory contains a legal description that encompasses all	13
of the Minerals at issue in this case. For the foregoing reasons, we conclude that the	14
probate court unequivocally awarded all of Herbert’s property of every kind to	15
Marie, including title to the Minerals.	16
{25} 	We turn now to the Welches’ contention that the district court erred in holding	17
that it was barred from construing the 1974 Will by the binding terms of the final	18
decree issued in the 1975 Proceeding. We look again to the law as it existed when	19
the final decree in the 1975 Proceeding was entered. “[T]he final determination of	20
the court . . . shall be final and conclusive in the distribution of said estate and in	21

14
regard to the title to all property of the estate[.]” Section 31-12-12 ; see In re Conley’s	1
Will, 1954-NMSC-112, ¶¶ 13-16 (stating that probate courts have jurisdiction to	2
make determinations of estate distribution that are binding on the world); see also	3
NMSA 1953, § 30-2-21 (1943) (stating that “[i]f no person shall, within six (6)	4
months after the probate, contest the same, or the validity of the will . . . the probate	5
of the will shall have the same effect as the final decree”).	6
{26} 	We decline the Welches’ invitation to construe the 1974 Will anew. No party	7
has ever directly challenged or appealed the 1975 Proceeding, and its findings are	8
now binding and conclusive. See § 30-2-21 (1943) (specifying that challenges not	9
brought within six months are barred). We do not address whether the probate	10
court’s interpretation of the 1974 Will was correct because the 1975 Proceeding is	11
not before us on appeal. Instead, we merely reiterate the law’s declaration that the	12
1975 Proceeding is “final and conclusive in the distribution of said estate and in	13
regard to the title to all property of the estate[,]” Section 31-12-12, and note that all	14
statutes of limitation with respect to direct challenges to the 1975 Proceeding have	15
long since passed. See § 30-2-21 (1943). Because the 1975 Proceeding did not	16
declare the 1974 Will to be contractual, the Welches’ claim on this front fails.	17
Similarly, the Welches’ argument that they received vested interests through the	18
1974 Will fails. The final decree unambiguously concluded that all rights to the	19
property of the decedent “vest[ed] . . . in [their] entirety, in Marie G. Welch.” Since	20

15
the 1975 Proceeding vested all of Herbert Welch’s property in Marie Welch, it	1
vested no one else with any interest in the Minerals.	2
II. 	The 2007 Heirship Proceeding	3
{27} 	The Welches contend that the 2007 Heirship Proceeding from which Griffin	4
derived his title to the Minerals is void for lack of jurisdiction because the published	5
notice was defective, and because the Welches never received notice. It is undisputed	6
that Griffin noticed the 2007 Heirship Proceeding by publication and did not send	7
notice to any individual directly. Rather, Griffin only attempted to provide notice by	8
publication, addressing the notice “to the unknown heirs of Marie Griffin Welch[,]”	9
without naming any specific individuals as potential heirs or interested parties. The	10
Welches argue that Alderman was a known heir, and point out that Griffin did not	11
attempt to serve Alderman with notice despite having previously attempted to locate	12
Alderman to discuss Marie’s 1976 Will in the late 1980’s. For these reasons, the	13
Welches contend that the 2007 Heirship Proceeding is void. In contrast, Premier and	14
Griffin argue that the Welches are not interested persons who were entitled to notice	15
because the Welches’ claimed interest in the Minerals were extinguished by the 2007	16
Heirship Proceeding finding that Marie died intestate, and by statutes of limitation	17
set forth in the probate code, which bar attempts to challenge formal testacy	18
proceedings unless certain exceptions apply.	19

16
{28} 	The Welches have mounted a collateral attack on the judgment by seeking a	1
declaration that the 2007 Heirship Proceeding is void. See Lewis v. City of Santa Fe,	2
2005-NMCA-032, ¶ 10, 137 N.M. 152, 108 P.3d 558 (“A collateral attack is an	3
attempt to avoid, defeat, or evade a judgment, or deny its force and effect, in some	4
incidental proceeding not provided by law for the express purpose of attacking the	5
judgment.” (alteration, internal quotation marks, and citation omitted)). Judgments	6
can be attacked collaterally if “lack of jurisdiction appears affirmatively on the face	7
of the judgment or in the judgment roll or record, or is made to appear in some other	8
permissible manner.” In re Estate of Baca, 1980-NMSC-135, ¶ 11, 95 N.M. 294,	9
621 P.2d 511. When attacked for failure of service of process, a judgment may be	10
declared “void only as to those persons not served and their successors.” Id. ¶ 10.	11
“A litigant may collaterally attack a judgment by impeaching that judgment with	12
matters outside of its record.” T.H. McElvain Oil & Gas Ltd. P'ship v. Grp. I:	13
Benson-Montin-Greer Drilling Corp., 2017-NMSC-004, 388 P.3d 240, ¶ 22; see	14
also Phoenix Funding, LLC v. Aurora Loan Servs., LLC, 2017-NMSC-010, ¶ 32,	15
390 P.3d 174, 182 (same).	16
{29} 	The Welches premise their collateral attack on the 2007 Heirship Proceeding	17
on constitutional grounds, alleging that “the 2007 Judgment is void for lack of	18
jurisdiction 	because 	constitutional 	due 	process 	notice 	requirements 	were 	not	19
satisfied.” As we explain in further detail below, both the notice provisions of the	20

17
probate code and due process require parties to exercise reasonable diligence to	1
ascertain the identities and addresses of interested persons and serve them with	2
notice. See T.H. McElvain, 2017-NMSC-004, ¶ 25; NMSA 1978, § 45-3-403(B)	3
(2011) Our ultimate holding with respect to the validity of the 2007 Heirship	4
Proceeding is premised on the statutory language of the probate code. Nevertheless,	5
we refer to due process case law during the course of our analysis because we	6
construe the statutory notice provisions of the probate code and the requirements of	7
due process as coextensive with respect to the requirement of due diligence, the aim	8
of providing notice to interested parties, and the establishment of jurisdiction over	9
such parties. Compare T.H. McElvain, 2017-NMSC-004, ¶ 25 (“A judgment entered	10
absent sufficient service of process upon a defendant violates due process and is	11
void as to the defendant for want of personal jurisdiction.”), with § 45-3-403(B)	12
(requiring the exercise of due diligence prior to resorting to publication), and NMSA	13
1978, § 45-3-106 (1995) (“In proceedings before the district court where notice is	14
required by the [probate code] or by rule, and in proceedings to construe probated	15
wills or determine heirs which concern estates that have not been and cannot now be	16
opened for administration, interested persons may be bound by the orders of the	17
district court in respect to property in or subject to the laws of New Mexico by notice	18
in conformity with [NMSA 1978,] Section 45-1-401 [(1975, amended 2011)”]). An	19
order is binding as to all who are given notice of the proceeding though less than all	20

18
interested persons are notified.”). See NMSA 1978, § 45-1-201(A)(19) (2011)	1
(stating that “ ‘formal proceedings’ means proceedings conducted before a district	2
judge with notice to interested persons”). On summary judgment, Griffin and	3
Premier as the moving parties were required to meet the initial burden of establishing	4
a prima facie case that the 2007 Heirship Proceeding is valid. See T.H. McElvain,	5
2017-NMSC-004, ¶ 21. There is no question that they have met this burden. The	6
judgment issued in the 2007 Heirship Proceeding is a final testacy order that may	7
not be modified or vacated more than twelve months after it was entered. See § 45-	8
3-412(A)(3)(c). In addition, the law requires that “every presumption consistent with	9
the record [be] indulged in favor of the jurisdiction of courts of general jurisdiction	10
whose judgments cannot be questioned when attacked collaterally, unless lack of	11
jurisdiction appears affirmatively on the face of the judgment or in the judgment roll	12
or record, or is made to appear in some other permissible manner.” In re Estate of	13
Baca, 1980-NMSC-135, ¶ 11. Because Griffin and Premier have established a prima	14
facie case that the 2007 Heirship Proceeding is valid, the burden of collaterally	15
attacking this presumptively valid judgment lies with the Welches. See Thoma v.	16
Thoma, 1997-NMCA-016, ¶ 25, 123 N.M. 137, 934 P.2d 1066 (holding that the	17
burden of proof in a collateral attack lies with the attacking party); In re Estate of	18
Baca, 1980-NMSC-135, ¶ 11 (indulging every presumption in favor of a court’s	19
exercise of jurisdiction in issuing a final judgment).	20

19
{30} 	In order to collaterally attack the 2007 Judgment, the Welches must first prove	1
that they were interested persons entitled to notice under the statutory provisions	2
governing notice requirements with respect to formal testacy proceedings. See	3
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (“An	4
elementary and fundamental requirement of due process in any proceeding which is	5
to be accorded finality is notice reasonably calculated, under all the circumstances,	6
to apprise interested parties of the pendency of the action and afford them an	7
opportunity to present their objections.” (emphasis added)).	8
{31} 	If the Welches succeed in proving that they were interested persons entitled	9
to notice, they must then prove that the notice provided by Griffin was invalid in	10
order to collaterally attack the judgment as void. See § 45-3-412(A) (providing that	11
a formal testacy order is final unless persons entitled to notice can show that the	12
notice was invalid); T.H. McElvain, 2017-NMSC-004, ¶ 22 (“Void judgments can	13
be subject to a collateral attack.”); id. ¶ 25 (“A judgment entered absent sufficient	14
service of process upon a defendant violates due process and is void as to the	15
defendant for want of personal jurisdiction.”).	16
A. 	Notice to Interested Persons	17
{32} 	We turn to the language of our probate code to determine whether the Welches	18
were interested persons entitled to notice. First, Section 45-3-403(B) sets forth the	19

20
notice requirements for formal intestacy proceedings and requires, in relevant part,	1
that notice be given to	2
heirs of the decedent (who would have taken had the decedent died	3
intestate); the devisees and personal representatives named in any will	4
that is being, or has been, probated . . . . In addition, the petitioner shall	5
give notice by publication to all unknown persons and to all known	6
persons whose addresses are unknown who have any interest in the	7
matters being litigated.	8
Section 45-3-403(B) (emphasis added). As Griffin points out, the Welches are not	9
heirs of Marie; their sole claim to the Minerals in this case is premised upon devise,	10
not inheritance through intestacy. In addition, at the time of the 2007 Heirship	11
Proceeding, the 1980 Will had not been probated, and Griffin was not attempting to	12
probate any will through the intestacy proceeding. Accordingly, the Welches were	13
not “devisees” within the meaning of Section 45-3-403(B) either. The only way in	14
which the notice requirements could apply to the Welches is if they are “persons . . .	15
who have any interest in the matters being litigated.” Id.	16
{33} 	For purposes of the probate code, “ ‘interested person’ includes heirs,	17
devisees, children, spouses, creditors, beneficiaries and any others having a property	18
right in or claim against a trust estate or the estate of a decedent[.]” Section 45-1-	19
201(A)(26) (emphasis added). We have previously held that persons who claim an	20
interest in estate proceedings through a will, even if that will is late-discovered, are	21
“interested persons.” See In re Estate of Lee, 2001-NMCA-037, ¶ 16, 130 N.M. 460,	22
26 P.3d 764 (holding that a devisee identified in a will thought to be destroyed or	23

21
lost, but which was later recovered, had a property right in, and or claim against the	1
estate at issue). We hold that the devises in the 1980 Will in favor of the Welches’	2
predecessor in interest, render the Welches interested persons for purposes of the	3
2007 Heirship Proceeding.	4
{34} 	Nevertheless, the mere fact that the Welches are interested persons does not	5
necessarily entitle them to notice beyond notice by publication. Section 45-1-	6
401(A)(3) specifically authorizes notice by publication for any persons whose	7
identity 	is 	not 	known 	and 	cannot 	be 	ascertained 	with 	reasonable 	diligence.	8
Providing, in pertinent part:	9
If notice of a hearing on any petition is required and except for specific	10
notice requirements as otherwise provided, the petitioner shall cause	11
notice of the time and place of hearing of any petition to be given to	12
any interested person . . . if the address or identity of any person is not	13
known and cannot be ascertained with reasonable diligence, [notice	14
shall be given] by publishing a copy thereof once a week for three	15
consecutive weeks in a newspaper of general circulation in the county	16
in which the hearing is to be held, the last publication of which is to be	17
at least ten days before the time set for the hearing.	18
Id. (emphasis added); see also § 45-3-403(A) (stating that “[u]pon commencement	19
of a formal testacy proceeding . . . [n]otice shall be given in the manner prescribed	20
by 	Section 	[45-]1-401”). 	Reading 	Sections 	45-1-401(A)(3) 	and 	45-3-403(B)	21
together, “if the address or identity of any person is not known and cannot be	22
ascertained with reasonable diligence,” Section 45-1-401(A)(3) notice may be given	23
by publication to all such “unknown persons and to all known persons whose	24

22
addresses are unknown who have any interest in the matters being litigated.” Section	1
45-3-403(B). However, publication is only authorized where “the address or identity	2
of any person is not known and cannot be ascertained with reasonable diligence[.]”	3
Section 45-1-401(A)(3). Accordingly, the exercise of reasonable diligence to	4
ascertain interested persons identities and addresses is a prerequisite to providing	5
notice by publication alone.	6
B. 	Reasonable Diligence	7
{35} 	Because the Welches were interested persons, Griffin had an obligation to	8
exercise 	reasonable 	diligence 	in 	an 	attempt 	to 	ascertain 	their 	identities 	and	9
whereabouts. The requirement of reasonable diligence contained in Section 45-1-	10
401 is similar to the diligence required to afford a person due process. See T.H.	11
McElvain, 2017-NMSC-004, ¶ 26 (“To meet the fundamental requirements of due	12
process, a plaintiff must undertake a diligent and good faith effort to locate	13
[interested 	persons] 	and 	serve 	them 	personally 	with 	notice.”). 	“Notice 	by	14
publication, then, is proper in some circumstances as a last resort.” Id. ¶ 28 (citing	15
Campbell, 1949-NMSC-030, ¶ 31, 53 N.M. 280, 206 P.2d 1145 (stating that	16
“[c]onstructive service . . . is only resorted to from necessity”) (internal quotation	17
mark and citation omitted)).	18
{36} 	Because Griffin served the Welches by publication without first exercising	19
reasonable diligence, we conclude that the published notice was statutorily defective.	20

23
See § 45-3-403(B) (providing that notice may be given by publication to all such	1
“unknown persons and to all known persons whose addresses are unknown who have	2
any interest in the matters being litigated” and Section 45-1-401 “if the address or	3
identity of any person is not known and cannot be ascertained with reasonable	4
diligence[.]”).	5
{37} 	Griffin argues that the Welches were unknown to him, that he was justified in	6
assuming that any will of Marie’s had been either revoked or lost, and accordingly	7
did not need to serve the Welches by means other than publication. We first address	8
Griffin’s argument that he was entitled to rely on a presumption that any will of	9
Marie’s had been lost or revoked. “[T]he party claiming revocation has the burden	10
of establishing that fact[.]” In re Estate of Kerr, 1996-NMCA-063, ¶ 14, 121 N.M.	11
854, 918 P.2d 1354. A presumption that a will has been revoked or lost may arise	12
when “a will is traced to the testator’s possession and cannot be found after death[.]”	13
Restatement (Third) of Prop.: Wills & Donative Transfers § 4.1 cmt. j, (Tentative	14
Draft No. 2 March 16, 1998); Perschbacher v. Moseley, 1965-NMSC-068, ¶ 4, 75	15
N.M. 252, 403 P.2d 693 (“It will be presumed that the instrument was destroyed by	16
the testator with the intention of revoking it if the proponent fails to give an	17
explanation for the absence of a will which was in the testator’s possession or in a	18
place to which he had ready access.”).	19

24
{38} 	On the record before us, Griffin failed to establish the necessary factual	1
predicate to invoke the presumption. Griffin contends that “[h]e investigated and	2
could not locate [the] will . . . had no reason to believe anyone other than Alderman	3
had a will [belonging to Marie], and [that] he unsuccessfully hired a private	4
investigator to find Alderman.” Griffin admits that he did not locate Alderman or the	5
wills, and accordingly, Griffin never traced either the 1976 Will or the 1980 Will to	6
“the testator’s 	possession.” Restatement (Third) of Prop.: 	Wills 	& Donative	7
Transfers § 4.1 cmt. j. For this reason, the presumption is inapplicable. In addition,	8
while we agree that a presumption may be relied upon in certain circumstances, a	9
mere presumption does not excuse the independent duty to exercise due diligence in	10
good faith to identify potential interested parties. See T.H. McElvain, 2017-NMSC-	11
004, ¶¶ 24-31 (analyzing reasonable diligence with respect to adequate notice as a	12
threshold question antecedent to determination that notice was proper, and that a	13
judgment was valid and immune to collateral attack).	14
{39} 	We now address Griffin’s argument that the Welches were unknown persons	15
entitled to notice only by publication. While we agree that the Welches were	16
unknown persons vis-à-vis Griffin when he filed the 2007 Heirship Proceeding,	17
Griffin nevertheless had an obligation to exercise reasonable diligence in an attempt	18
to ascertain their identities and whereabouts based upon facts known to him at the	19
time he filed the proceeding. See id.	20

25
{40} 	We acknowledge that what constitutes due diligence may differ depending on	1
the individual circumstances of each case. See id. ¶ 37 (holding that due diligence	2
must be evaluated in light of the facts, circumstances, and resources available). In	3
this case, any attempts to locate the 1980 Will and interested persons were	4
indisputably hindered by Alderman’s attempts to hide from his creditors, by the fact	5
that Griffin was unaware that the Welches were devisees, and by the fact that the last	6
will of which Griffin was aware was the 1976 Will. Nevertheless, given Griffin’s	7
knowledge that a will had once existed, he was required to take at least some steps	8
to locate it, and to locate and provide notice to its devisees in connection with the	9
petition he filed in the 2007 Heirship Proceeding. See §§ 45-1-401(A) and 45-3-	10
403(A) (requiring the exercise of due diligence to ascertain the address and identities	11
of unknown persons “[u]pon commencement of a formal testacy proceeding[.]”	12
(emphasis added)).	13
{41} 	We need not decide what actions Griffin needed to take in order to satisfy the	14
requirement of reasonable diligence, other than to state that a complete absence of	15
action in connection with the 2007 Heirship Proceeding, when coupled with	16
Griffin’s failure to notify the court of his knowledge that a will had once existed and	17
had once been in the possession of Alderman, fails to satisfy due diligence	18

26
requirements.4 Griffin did conduct a thorough search for both Alderman and the	1
1976 Will in 1988 and 1989, but those efforts occurred more than seventeen years	2
before he initiated the 2007 Heirship Proceeding, and were stale because they were	3
temporally separated from, and bore no connection to, Griffin’s filing of his petition	4
in the 2007 Heirship Proceeding. In addition, Griffin made no mention of his	5
previous efforts in his petition, nor did he alert the district court that a valid will and	6
devisees might exist. For these reasons, we hold that Griffin failed to exercise	7
reasonable diligence as required by the probate code and due process.	8
{42} 	Given our holding, we need not address the Welches’ argument that the	9
published notice itself was defective pursuant to Kalosha v. Novick, 1973-NMSC-	10
010, 84 N.M. 502, 505 P.2d 845, nor need we address whether the provisions of Rule	11
1-004 NMRA apply to probate proceedings.	12
C. 	The 2007 Heirship Proceeding Is Subject to Collateral Attack	13
{43} 	We acknowledge that “[t]he law is settled in New Mexico that . . . judgments	14
cannot be questioned when attacked collaterally, unless lack of jurisdiction appears	15
4 While the Welches have no standing to raise arguments with respect to notice
on behalf of Alderman qua Alderman, here, the Welches suffered actual injury as a
result of Griffin’s failure to provide notice to Alderman—this failure appreciably
diminished the chance that the 1980 Will would have been discovered and
introduced during the course of the 2007 Heirship Proceeding. See United States v.
Windsor, 570 U.S. 744, 757 (2013) (requiring a plaintiff to suffer an injury in fact
fairly traceable to the challenged action of the defendant).

27
affirmatively on the face of the judgment or in the judgment roll or record, or is made	1
to appear in some other permissible manner.” In re Estate of Baca, 1980-NMSC-	2
135, ¶ 11. In this case, Griffin’s failure to exercise reasonable diligence renders the	3
judgment void for lack of jurisdiction. See Ortiz v. Shaw, 2008-NMCA-136, ¶ 17,	4
145 N.M. 58, 193 P.3d 605 (stating that “[p]roper service of process is required	5
before a court can exercise jurisdiction over a [party]”); State ex rel. Office of Att’y	6
Gen. v. Grand River Enters. Six Nations, Ltd., 2014-NMCA-073, ¶ 6, 329 P.3d 723	7
(“[A] judgment entered against a party over whom the court lacks personal	8
jurisdiction is a void judgment.”). “A judgment which is void is subject to direct or	9
collateral attack at any time.” In re Estate of Baca, 1980-NMSC-135, ¶¶ 10-12	10
(upholding collateral attack on a 1950 judgment in an estate proceeding). For the	11
foregoing reasons, we hold that the 2007 Heirship Proceeding is subject to collateral	12
attack, and void as to the Welches.5
13
5 We note that our holding reversing summary judgment in favor of Griffin
with respect to the validity of the 2007 Heirship Proceeding operates as the
equivalent of granting summary judgment in favor of the Welches. “Where cross-
motions for summary judgment are presented on the basis of a common legal issue,
this Court may reverse both the grant of one party’s motion and the denial of the
opposing party’s cross-motion and award judgment on the cross-motion.” Grisham
v. Allstate Ins. Co., 1999-NMCA-153, ¶ 2, 128 N.M. 340, 992 P.2d 891. We are
cognizant that a party moving for summary judgment must meet its initial burden of
establishing a prima facie case for summary judgment. See Roth v. Thompson, 1992-
NMSC-011, ¶ 17, 113 N.M. 331, 825 P.2d 1241. Once a moving party meets that
initial burden, the burden shifts to the nonmoving party to alternatively establish
evidence that issues of material fact remain requiring a trial on the merits. See
Romero v. Philip Morris, Inc., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280.

28
D. 	Statutes of Limitation Under the Probate Code	1
{44} 	We turn now to the arguments made by Premier and Griffin alleging that	2
statutes of limitation contained in the probate code bar the 1980 Will from probate.	3
Below, the Welches sought a ruling from the district court construing the 1980 Will,	4
but the district court found that “[NMSA 1978, Section 45-3-102 [(2005)] and	5
[Section] 45-3-108 provide for a conclusive presumption of intestacy if the will is	6
not probated within [three] years of the testator’s death[,]” and thus, the 1980 Will	7
was barred from probate. We need not decide whether the district court was correct,	8
because 	we 	address 	the 	Welches’ 	alternative 	argument; 	that 	the 	three-year	9
limitations statute does not bar the Welches’ present attempts to probate the 1980	10
Will because an exception to the three-year bar applies. With respect to this issue,	11
the district court, relying on NMSA 1978, Section 45-1-110(D) (2011) ruled that any	12
right to probate the 1980 Will or prove title through its devise was extinguished in	13
1991, three years after Marie’s death, and held that the subsequent amendments to	14
Section 45-3-108, which codified the exceptions which the Welches advanced	15
below, did not revive that right. We disagree.	16
We hold that the Welches have met their burden and that Griffin has not established
that issues of material fact preclude a grant of summary judgment in favor of the
Welches.

29
{45} 	Section 45-1-110(D) provides in relevant part, “If a right is acquired,	1
extinguished or barred upon the expiration of a prescribed period of time that has	2
commenced to run by the provisions of any statute before the effective date, the	3
provisions shall remain in force with respect to that right[.]” Because the exceptions	4
the Welches rely upon did not exist under the statute in effect, Section 45-3-108	5
(1975), when Marie died, the district court found that the Welches were barred from	6
seeking to probate the 1980 Will under the exceptions. We disagree. A closer look	7
at the history of the probate code indicates that the right to prove title through devise	8
was continuously maintained between 1988 (when Marie died) and the present.	9
In 1988, when Marie died, Section 45-3-102 (1975) provided:	10
Except as provided in [NMSA 1978, 45-3-1201 (1975, amended	11
2011)], to be effective to prove the transfer of any property or to	12
nominate a personal representative, a will must be declared to be valid	13
by an order of informal probate by the probate court, or an adjudication	14
of probate by the district 	court. 	However, a 	duly 	executed 	and	15
unrevoked will which has not been probated may be admitted as	16
evidence of a devise if no court proceeding concerning the succession	17
or administration of the estate has occurred, and either the devisee or	18
his 	successors 	and 	assigns 	possessed 	the 	property 	devised 	in	19
accordance with the provisions of the will, or the property devised was	20
not possessed or claimed by anyone by virtue of the decedent’s title	21
during the time period for testacy proceedings.	22
Id. (emphasis added). In 1993, our Legislature adopted Subsection 45-3-108(A)(4)	23
(allowing testacy proceedings to be commenced if no proceedings concerning the	24
succession or estate administration occurred within three years of the decedent’s	25
death). See 1993 N.M. Laws, ch. 174, § 68. Finally, in 1995, our Legislature adopted	26

30
Subsection 45-3-108(A)(5) (allowing testacy proceedings to be commenced more	1
than three years after the death of the decedent for the purpose of establishing an	2
instrument to direct or control ownership of property distributable under the terms	3
of the decedent’s will from one other than the decedent), and removed all of the	4
above italicized language from Section 45-3-102. See 1995 N.M. Laws, ch. 210, §§	5
31, 33.	6
{46} 	Because the right to confirm title to property through devise so long as no	7
valid prior proceeding had been commenced within three years of the decedents’	8
death existed continuously between 1988 and the present, the district court erred in	9
concluding that such a right was extinguished or barred in accordance with Section	10
45-1-110(D).6
11
6 Section 45-1-110(B) provides “the [Uniform Probate C]ode [(the Code)] or
the amendment applies to any proceedings in court then pending or thereafter
commenced regardless of the time of the death of decedent except to the extent that
in the opinion of the court the former procedure should be made applicable in a
particular case in the interest of justice or because of infeasibility of application of
the procedure of [the probate code] or the amendment[.]” The record does not
contain any finding from the district court indicating that the interest of justice or
infeasibility require application of the prior version of Section 45-3-108, and we are
aware of no reason justifying such an application. Accordingly, the district court
erred in applying the prior version of the probate code as opposed to the current
version.

31
{47} 	We need not address the arguments of the parties with respect to other sections	1
of the probate code because we conclude that the Welches may introduce the 1980	2
Will in this proceeding pursuant to Subsection 45-3-108(A)(4) which provides:	3
an informal appointment in an intestate proceeding or a formal testacy	4
or appointment proceeding may be commenced . . . if no proceedings	5
concerning the succession or estate administration has occurred within	6
the three-year period after the decedent’s death, but the personal	7
representative has no right to possess estate assets . . . beyond that	8
necessary to confirm title thereto in the successors to the estate[.]	9
Id. The Welches argue that, because no probate or intestacy proceeding was	10
commenced within the first three years after Marie’s death in 1988, the Welches are	11
not barred from probating the 1980 Will to prove their title to the Minerals. Premier	12
points out that the plain language of Subsection (4) of Section 45-3-108 restricts the	13
personal representative’s right to possess estate assets to the possession necessary to	14
confirm title to the assets in the estate’s successors. We agree that pursuant to this	15
exception, a will may be introduced to confirm title, but not to strip title from one	16
who already possesses it. See In re Estate of Yogiji, 2013-NMCA-104, ¶ 24, 311	17
P.3d 1224 (“[T]he Legislature intended to preclude the personal representative from	18
selling or otherwise exerting possessory control over assets that had been in the	19
possession of others for more than three years. However, the Legislature wanted to	20
provide a mechanism for a personal representative to confirm title in an estate’s	21
successors for purposes of establishing the validity of title.”). Similarly, the	22
exceptions to Section 45-3-108 are not intended to permit challenges to valid	23

32
heirship determinations. See In re Estates of Hayes, 1998-NMCA-136, ¶ 23, 125	1
N.M. 820, 965 P.2d 939 (“‘[P]ublic policy requires that there be an end to litigation	2
and that rights once established by a final judgment shall not again be litigated in	3
any subsequent proceeding.’” (quoting Miller v. Miller, 1971-NMSC-104, ¶ 13, 83	4
N.M. 230, 490 P.2d 672)); see also Unif. Prob. Code § 3-410 (amended 2019)	5
(“Except as otherwise provided in [Unif. Prob. Code § 3-412 (amended 2019)], an	6
order in a formal testacy proceeding serves to end the time within which it is possible	7
to probate after-discovered wills or to give effect to late-discovered facts concerning	8
heirship. Determination of heirs is not barred by the three-year limitation, but a	9
judicial determination of heirs is conclusive unless the order may be vacated.”).	10
{48} 	Nevertheless, we have declared the 2007 Heirship Proceeding void, and the	11
final decree issued therein awarding title to the Minerals to Griffin is of no effect. It	12
is as if the 2007 Heirship Proceeding was never filed. Accordingly, the Welches	13
current efforts to probate the 1980 Will do not strip title from anyone whose title	14
interest was previously confirmed through a probate proceeding. Instead, this present	15
proceeding seeks to confirm title in the Welches pursuant to the terms of the 1980	16
Will. Allowing such a proceeding in the narrow circumstance when no valid	17
previous determinations regarding successors to the estate have been made, does not	18
eviscerate the three-year statutory bar. Instead, it advances an important aim of our	19
probate 	code—“to 	discover 	and 	make 	effective 	the 	intent 	of 	a 	decedent 	in	20

33
distribution of the decedent’s property[.]” Section 45-1-102(B)(2). For this reason,	1
we hold that the Welches may probate the 1980 Will in this proceeding.	2
III. 	Bona Fide Purchaser	3
{49} 	Despite our holding above, this Court recognizes the importance of protecting	4
the interests of third parties who have acquired title to property in the absence of a	5
timely testacy proceeding. See In re Estate of Yogiji, 2013-NMCA-104, ¶ 24. We	6
are of the view that the narrow exceptions to the three-year statute of limitations	7
barring 	late-filed 	petitions 	for 	probate 	evince 	an 	intent 	to 	protect 	innocent	8
purchasers, while simultaneously making final, all determinations with respect to	9
distribution of estates not contrary to law and settled expectations. These important	10
policy 	considerations 	are 	mirrored 	in 	the 	protections 	afforded 	to 	bona 	fide	11
purchasers for value without notice. To qualify as a bona fide purchaser, a party must	12
show that it acquired property for valuable consideration in good faith without notice	13
of defects in the chain of title to the property, including adverse rights or claims of	14
other parties. See Jeffers v. Doel, 1982-NMSC-116, ¶ 7, 99 N.M. 351, 658 P.2d 426;	15
City of Rio Rancho v. Amrep Sw. Inc., 2011-NMSC-037, ¶ 26, 150 N.M. 428, 260	16
P.3d 414 (“A good faith purchaser of real property who has invested money in the	17
property without notice of a third party’s unrecorded interest in that property is	18
protected under New Mexico law.”). “ ‘The general rule is that a prospective	19
purchaser of real property is deemed to have notice of adverse claims to that property	20

34
if the purchaser has ‘knowledge of such facts as ought to put a prudent person upon	1
inquiry as to the title.’ ” Id. (alterations omitted) (quoting Hunt v. Ellis, 1921-	2
NMSC-083, ¶ 8, 27 N.M. 397, 201 P. 1064). “Once a prospective purchaser obtains	3
knowledge of facts that trigger a duty to inquire about the title, that purchaser must	4
perform 	a 	‘reasonably 	diligent 	investigation’—one 	that 	‘would 	lead 	to 	the	5
knowledge 	of 	the 	requisite 	facts 	by 	the 	exercise 	of 	ordinary 	diligence 	and	6
understanding.’ ” Id.	7
{50} 	Premier contends that it had neither actual, constructive, or inquiry notice	8
regarding defects in the chain of title of the Minerals awarded to Griffin following	9
the 	2007 	Heirship 	Proceeding, 	and 	which 	Premier 	subsequently 	purchased.	10
Following the 2007 Heirship Proceeding, Griffin transferred the Minerals to Griffin	11
Minerals, LLC, which subsequently leased them to Sam L. Shackelford. Premier	12
hired an attorney to provide a title opinion with respect to the Minerals in 2010,	13
purchased the leasehold in 2010, and subsequently acquired fee interests in the	14
Minerals.	15
{51} 	The Welches argue that the title opinion put Premier on notice that title defects	16
existed with respect to the Minerals. The title opinion indicates that the interests	17
were derived pursuant to the 2007 Heirship Proceeding which found that Griffin	18
“was the only heir at law of Marie Griffin Welch, who died intestate on December	19
27, 1988.” The title opinion goes on to comment that “the finding appears to be	20

35
somewhat cursory as to Ralph S. Griffin’s great-grandparents to the generational	1
level of Marie Griffin Welch. However, notices of the proceedings were published	2
pursuant to New Mexico law, and no other parties filed claims or appeared to object	3
to the proposed findings of the [c]ourt.” Finally, the opinion concludes, “[b]arring a	4
showing of fraud or a violation of procedural due process, the determination as	5
tendered by the [c]ourt will prevail.” As part of the title review, an examination was	6
conducted of all instruments affecting the Minerals listed in the “tract indexes and	7
files of Currier Abstract Company, Artesia, New Mexico[.]” Among the documents	8
examined was the 1974 Will, the 1975 Proceeding, and the 1975 Mineral Deed Marie	9
executed, assigning herself the Mineral interests following Herbert’s death. The	10
Welches contend that these documents, along with the title opinion’s cautionary	11
language regarding the 2007 Heirship Proceeding’s validity, put Premier on notice	12
of title defects such that they cannot claim bona fide purchaser status. The Welches	13
also contend that Premier should have examined the 1974 Will and concluded that	14
Marie could not have died intestate. We disagree.	15
{52} 	The existence of the 1974 Will and the cautionary language in the title opinion	16
do not put Premier on actual or constructive notice of title defects. Assuming	17
arguendo that Premier had an obligation to review the 1974 Will and 1975	18
Proceeding, Premier could have reasonably relied upon the 1975 Proceeding’s	19
findings that Marie was the sole beneficiary, heir, devisee, legatee, and interested	20

36
party with respect to Herbert’s estate, and ordering all of Herbert’s property	1
distributed to Marie. This is particularly true given that no person has ever filed a	2
direct challenge to the validity of the 1975 Proceeding. Similarly, Premier justifiably	3
relied upon the findings of the 2007 Heirship Proceeding concluding that Marie died	4
intestate, that Griffin was her sole heir, and awarding title to the Minerals to Griffin	5
as his sole and separate property. Again, no person has ever filed a direct challenge	6
to the validity of the 2007 Heirship Proceeding, so even a diligent investigation	7
would not have put Premier on notice of defects in Griffin’s title. See City of Rio	8
Rancho, 2011-NMSC-037, ¶ 26 (stating that where there is a duty to inquire, the	9
prospective purchaser is charged with knowledge of all facts that a reasonably	10
diligent investigation would have ascertained).	11
{53} 	We are cognizant of the apparent incongruity between our decision to declare	12
the 2007 Heirship Proceeding void, and our decision declaring that Premier had no	13
notice of title defects in the Minerals that Griffin derived therefrom. Indeed, our	14
holding, although ultimately based upon statutory requirements, touches on the type	15
of defect the title opinion warned about—a violation of procedural due process.	16
Nevertheless, we do not believe that Premier had “knowledge of such facts as ought	17
to put a prudent person upon inquiry as to the title.” Id. ¶ 26 (alteration, internal	18
quotation marks, and citation omitted). We declared the 2007 Heirship Proceeding	19
void based upon Griffin’s knowledge that Marie had once had a valid will, and his	20

37
knowledge that Alderman possessed the same. Griffin’s knowledge is crucial in that	1
it supports our finding that he failed to exercise reasonable diligence before resorting	2
to publication. In contrast, Premier was unaware of the existence of any of Marie’s	3
wills and, given that no person had ever contested the 2007 Heirship Proceeding,	4
was justified in relying upon the finality of the decree entered therein. To rob Premier	5
of its bona fide purchaser status would be inequitable given Premier’s innocence.	6
Thus, we affirm the district court’s conclusion that Premier was a bona fide	7
purchaser.	8
CONCLUSION	9
{54} 	For the foregoing reasons, we reverse the district court’s grant of summary	10
judgment in favor of Griffin, we affirm the court’s decision granting summary	11
judgment in favor of Premier with respect to its status as a bona fide purchaser, grant	12
summary judgment in favor of the Welches with respect to their claim that the 2007	13
Heirship Proceeding is void and subject to collateral attack, and we remand in	14
accordance with the holdings expressed in this opinion.	15
{55} 	IT IS SO ORDERED.	16
__________________________________	17
BRIANA H. ZAMORA, Judge	18

38
WE CONCUR:	1
___________________________________	2
JACQUELINE R. MEDINA, Judge	3
___________________________________	4
MEGAN P. DUFFY, Judge, (concurs in result only).	5