Succession of Bacot
| Decision Date | 14 January 1987 |
| Docket Number | No. CA-5316,CA-5316 |
| Citation | 502 So.2d 1118 |
| Parties | SUCCESSION OF Samuel Wilds BACOT, Jr. a/k/a Samuel W. Bacot, a/k/a Wilds Bacot, a/k/a Pat Bacot. |
| Court | Court of Appeal of Louisiana — District of US |
Jennifer N. Willis, Cater & Willis, and William P. Quigley, New Orleans, for Danny Washington, intervenor-appellant-appellee.
Darleen M. Jacobs, New Orleans, for Elmo Orgeron, Jr., plaintiff-appellant.
Erroll J. Ware, New Orleans, for Danny Butler, intervenor-appellant.
Patrick F. McGrew, Baton Rouge, for H. William Jolly, III, Mary Etta Jolly, and Bob Conway Jolly, intervenors-appellants.
Vincent Marinello, New Orleans, for Danny Poirier, intervenor-appellant.
Before GULOTTA, CIACCIO and LOBRANO, JJ.
This appeal involves the validity, vel non, of a document purported to be the last will and testament of the deceased, Samuel Wilds Bacot, Jr. (Bacot). Collateral to the issue of the validity of the document in question is the issue of whether a man can be the concubine of another man.
Bacot, an admitted homosexual, never married and had no natural children. Throughout his lifetime, Bacot was also known as Samuel W. Bacot, Wilds Bacot and Pat Bacot.
On January 5, 1982, Bacot executed an authentic act wherein he adopted Elmo Orgeron, Jr. (Orgeron), an adult male, as his son and heir. On that same day, Bacot executed a last will and testament in statutory form, naming Orgeron as executor and sole legatee.
In September of 1984, Bacot was admitted to Charity Hospital in New Orleans (CHNO) suffering with acute chronic virulent type B herpes simplex. This disease caused a buildup of toxic ammonia on Bacot's brain, which increased as his hospitalization progressed. Several weeks later on October 4, 1984, at approximately 2:00 a.m., Bacot asked Carolyn McLain (McLain), a CHNO nurse to bring him a pen and paper so that he could write a will. McLain honored Bacot's request. That night, Bacot wrote the document in question. It is short, is written on a single sheet of stenographic paper and reads, "I leave all to Danny". The document is signed "Wilds Bacot" and contains a series of marks resembling a slash--date of either "10/4/84 or 4/10/84." McLain later retrieved the document from Bacot. She signed, dated it, placed Bacot's CHNO patient number on the document and placed it in his medical file.
Shortly thereafter, Bacot slipped into a coma and died on October 14, 1984. He never regained consciousness and never indicated to anyone the identity of the "Danny" named in the document.
On October 19, 1984, Orgeron petitioned the Civil District Court of Orleans Parish to probate the statutory testament of January 5, 1982. Several homosexual lovers of Bacot, Danny Washington, Danny Poirier and Danny Butler, intervened in the probate proceedings. Each attempted to probate the document in question asserting it to be Bacot's olographic last will and testament and each claiming to be the "Danny" named as legatee. In addition, Bacot's cousins, H. William Jolly, III, Mary Etta Jolly, and Bob Conway Jolly, intervened asserting the statutory testament to be deficient in form and claiming to be the true owners of the succession assets. The Jolly's later amended their original petition to allege the document in question to be the valid olographic testament of Bacot which supersedes the statutory testament. 1
Following a two day trial, the trial Judge decreed the document in question to be the valid olographic will of Bacot executed on October 4, 1984 and that, as such, it revoked the prior statutory will. The Court found Danny Washington to be the "Danny" referred to as Bacot's intended sole legatee but limited his legacy to one-tenth ( 1/10) of the movable property of the succession under Civil Code Article 1481 finding Washington lived in open concubinage with Bacot. The Court based its decision on Washington and Bacot's longtime homosexual love affair and cohabitation wherein they assumed duties and obligations usually manifested by married people. The Court decreed the remainder of the estate to Orgeron as Bacot's adopted son.
All parties appealed the judgment of the trial court asserting the following specifications of error:
Orgeron (the adopted son) asserts:
The trial court erred in holding that the purported olographic testament of October 4, 1984 was valid.
Washington (the concubine) asserts:
The trial court erred as a matter of law in holding that La. Civil Code Art. 1481 applies to homosexual relationships.
The Jollys (the cousins) assert:
1) The trial court erred in holding that La.Civil Code Art. 1481 applies to homosexual relationships;
2) The trial court erred in holding Orgeron to be the adopted son and heir of Bacot as the validity of the adoption was not properly before the court;
3) The implication of the trial court's decision that the statutory will is valid in form and substance is manifestly erroneous as the will failed to meet the requirements of La.R.S. 9:2442.
Butler and Poirier (the "other" Dannys) assert:
The trial court erred in finding Washington to be the "Danny" referred to in the olographic will.
THE OLOGRAPHIC TESTAMENT:
Louisiana Civil Code Articles 1588 and 1589 provide:
The olographic testament is that which is written by the testator himself.
In order to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of the State.
Erasures not approved by the testator are considered as not made, and words added by the hand of another as not written.
If the erasures are so made as to render it impossible to distinguish the words covered by them, it shall be left to the discretion of the judge to declare, if he considers them important, and in this case only to decree the nullity of the testament.
The above articles of our code constitute the exclusive statutory requirements for the execution of an olographic testament. The probate requirements for an olographic testament are contained in Louisiana Code of Civil Procedure Article 2883 which provides:
A. The olographic testament must be proved by the testimony of two credible witnesses that the testament was entirely written, dated, and signed in the testator's handwriting. The court must satisfy itself, through interrogation or from the written affidavits or the depositions of the witnesses, that the handwriting and signatures are those of the testator, and except as provided in Article 2890, must mention these facts in its proces verbal.
B. A person's testimony for the purpose of this Article may be given in the form of an affidavit executed after the death of the testator before a notary and two witnesses stating that the olographic will was entirely written, dated, and signed in the testator's handwriting, unless the court in its discretion requires the person to appear and testify orally. All affidavits accepted by the court in lieu of oral testimony shall be filed in the probate proceedings. This Paragraph does not apply to testimony with respect to the genuineness of a will that is judicially attacked.
The principal value of an olographic testament is simplicity. It can be confected by a layman without the assistance of legal counsel. Succession of Hammett, 183 So.2d 416 (La.App. 4th Cir.1966).
Orgeron asserts that it was error for the trial court to find that the document executed by Bacot on October 4, 1984 met the formal requirements necessary to be an olographic testament. We disagree.
THE DATE:
Orgeron asserts the "date" which appears below Bacot's signature is "illegible" and "uncertain". The trial court determined the date to be October 4, 1984. All testimony indicated this to be the date on which Bacot executed the document. The determination of the date poses two questions. Can parol evidence be used to clarify an ambiguous date and does a strikeover in a date, in and of itself, invalidate a testament?
The question of the use of parol evidence was definitively addressed by our Supreme Court in Succession of Boyd, 306 So.2d 687 (La.1975). The high court concluded that public policy demanded that extrinsic evidence be allowed to clarify an ambiguous date on an olographic testament. Justice Dixon (now Chief Justice) speaking for the Court stated:
"... The strong public policy of the State, sustaining the validity of wills and giving effect to the testator's wishes when possible ..., combined with the high incidence of wills written without legal assistance, have resulted in much litigation over dates, alone...." Id. at 688.
The Court then quoted with approval the following language from Succession of Lefort, 139 La. 51, 71 So. 215, decided in 1916:
"But there is no law that prevents the courts from hearing testimony and entertaining evidence to throw light upon an obscure date, and remove all doubt, uncertainty, or ambiguity concerning it."
* * *
* * *
"Any evidence, recognized by law and not expressly prohibited by statute, calculated to convince the court and establish the certainty of the date, should be admitted and heard." Succession of Boyd, supra at 689.
In the instant case, the slash-date on the will is either "10/4/84" or "4/10/84". McLain, the supervising nurse at CHNO who provided Bacot with the pen and paper with which he executed the will, testified the will was written on October 4, 1984. She saw Bacot writing the will, took the completed will from him, dated and signed it herself, wrote his patient number on it and placed it in his medical file. Thus, McLain's testimony is sufficient to establish the will was executed on October 4, 1984 and is sufficient to comply with the rule set forth in Succession of Boyd, supra.
Orgeron asserts that the number "8" in "1984" is the result of a deliberate strikeover of the number "2" and renders the testament invalid. No evidence was presented at trial that the date on the will was in anyway tampered...
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