Darby v. Rozas

• Decision Date: 22 May 1991
• Docket Number: No. 89-964,89-964
• Citation: 580 So.2d 984
• Parties: Mary Ann Rozas DARBY, et al., Plaintiffs-Appellants, v. Dorothy Prejean ROZAS, Defendant-Appellee. 580 So.2d 984
• Court: Court of Appeal of Louisiana — District of US

Page 984

580 So.2d 984

Mary Ann Rozas DARBY, et al., Plaintiffs-Appellants, v. Dorothy Prejean ROZAS, Defendant-Appellee.

No. 89-964.

580 So.2d 984

Court of Appeal of Louisiana, Third Circuit.

May 22, 1991.

Writ Granted Sept. 27, 1991.

Bruce A. Gaudin, Opelousas, for plaintiffs-appellants.

Andrus & Doherty, James P. Doherty, Opelousas, for defendant-appellee.

Before DOMENGEAUX, FORET, LABORDE, KNOLL and KING, JJ.

LABORDE, Judge.

Dr. Sidney J. Rozas died testate on April 6, 1986. In his last will and testament dated August 13, 1982, Dr. Rozas made the following bequests:

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"I give and bequeath to my beloved wife, Dorothy Prejean Rozas, our home property located at 1115 Dietlein Boulevard, Opelousas, Louisiana, together with the vacant lot located to the south of such residence, including all furnishings, furniture and contents.

I also will and bequeath to my wife, Dorothy Prejean Rozas, the personal automobile which she may be using at the time of my death.

Subject to the above, I will and bequeath to my wife, Dorothy Prejean Rozas, the usufruct of all properties owned by me, movable and immovable, separate and community, including the usufruct of all royalties and minerals.

Subject to the above, I further will and bequeath to my wife, Dorothy Prejean Rozas, such additional bonds, stock and cash in order that she would receive, including the above bequest, one-half of the net value of my estate.

Subject to the foregoing and to the payment of all debts and claims, including estate taxes, I bequeath all of the remainder of my properties, movable and immovable, that I may own at my death to my two daughters, Alice Augusta Rozas Bienvenu and Mary Ann Rozas Nicholson, share and share alike, or per stirpes, to the descendants of any of them who predecease me."

* * * * * *

Dr. Rozas' will was duly probated and the legatees were placed into possession of the assets of the estate by Judgment of Possession rendered January 8, 1987, under Probate No. P86-117-C of the 27th Judicial District Court, St. Landry Parish, Louisiana.

On June 8, 1988, defendant, Dorothy Prejean Rozas, the surviving spouse of Dr. Rozas, contracted another marriage. Plaintiffs, Mary Ann Rozas Darby and Alice Augusta Rozas Bienvenu, Dr. Rozas' children from a prior marriage, brought suit to terminate defendant's usufruct. Plaintiffs also sought to recover all sums paid to defendant as usufructuary since the date of her remarriage. The trial court ruled that the usufruct did not terminate upon defendant's remarriage. Plaintiffs have now perfected this appeal. We reverse and remand.

The sole issue raised by this appeal is whether the usufruct granted to defendant terminates upon the remarriage or the death of the usufructuary. Resolving this issue necessarily involves determining whether the usufruct granted to defendant is a legal or testamentary usufruct.

Under Civil Code Article 544, a usufruct may be established by a juridical act either inter vivos or mortis causa, or by operation of law. The usufruct created by a juridical act is referred to as a conventional usufruct, and the usufruct created by operation of law is referred to as a legal usufruct. Conventional usufructs are of two kinds: contractual (created by an inter vivos juridical act) or testamentary (created by a mortis causa juridical act). There are various kinds of legal usufructs in Louisiana; the one we are concerned with is the legal usufruct of the surviving spouse over the deceased spouse's share in the community that has been inherited by descendants.

For well over one hundred years, Louisiana has adopted some form of usufruct in favor of the surviving spouse "to secure means of sustenance for the surviving spouse and to prevent partition or liquidation of the community to the prejudice of that spouse." Yiannopoulos, 3 Louisiana Civil Law Treatise: Personal Servitudes, at 381 (1989). In the Civil Code of 1870, the usufruct of the surviving spouse was contained in Article 916. By Act 919, which acquired the force of law on January 1, 1982, Civil Code Article 916 was repealed and replaced by Article 890. Article 890 provides:

"If the deceased spouse is survived by descendants and shall not have disposed by testament of his share in the community property, the surviving spouse shall have a legal usufruct over so much of that share as may be inherited by the descendants. This usufruct terminates when the surviving spouse contracts another marriage, unless confirmed by testament for life or for a shorter period.

The deceased may by testament grant a usufruct for life or for a shorter period to the surviving spouse over all or part of his separate property.

A usufruct authorized by this Article is to be treated as a legal usufruct and is not an impingement upon legitime.

If the usufruct authorized by this Article affects the rights of heirs other than children of the marriage between the deceased and the surviving spouse or affects separate property, security may be requested by the naked owner."

It is important to point out that a usufruct granted in favor of a surviving spouse can be legal or testamentary. When a usufruct is created by operation of law under Article 890, the following consequences attach: (1) the usufruct terminates upon remarriage; (2) the surviving spouse is not liable for the payment of Louisiana inheritance taxes; (3) the surviving spouse is relieved of giving security when the naked owners are children of the marriage; and (4) the usufruct does not impinge on the legitime. If the usufruct is testamentary: (1) in the absence of contrary testamentary disposition, the usufruct is for life; (2) the surviving spouse owes taxes; (3) in the absence of contrary testamentary disposition, the surviving spouse must provide security; and (4) the usufruct can potentially impinge on the legitime.

As Professor Yiannopoulos notes in his treatise, "[t]he distinction between legal usufruct and testamentary usufruct has been blurred in Louisiana by the doctrine of confirmation of the legal usufruct by will." Yiannopoulos, Personal Servitudes, at 392. Several early decisions interpreted Article 916 (the predecessor to Article 890) very narrowly, holding that any disposition by will defeated the legal usufruct in favor of the surviving spouse. See e.g. Succession of Schiller, 33 La.Ann. 1 (1881); Forstall v. Forstall, 28 La.Ann. 197 (1876). However, later, a line of jurisprudence overruled these cases and determined that a testamentary disposition that was not adverse to the interests of the surviving spouse did not defeat the usufruct. See e.g. Succession of Waldron, 323 So.2d 434 (La.1975); Succession of Chauvin, 260 La. 828, 257 So.2d 422 (1972). In other words, the surviving spouse is entitled to the legal usufruct under Article 890 unless a testamentary disposition is adverse to the legal usufruct. The Louisiana Supreme Court in Succession of Waldron, supra, observed that such an adverse disposition may occur when the testator makes an excessive disposition to persons other than the surviving spouse of the portion of the estate which is subject to the legal usufruct, or, very simply, if the testator expressly states his intention that the legal usufruct does not apply.

Under Article 890, a testator may confirm by testament the legal usufruct of the surviving spouse over the share of the community inherited by descendants "for life or for a shorter period." A testator may also grant to the surviving spouse "for life or a shorter period" a usufruct over all or a portion of his separate property. Professor Yiannopoulos points out that whenever a testator grants the surviving spouse a usufruct, the question that naturally arises is whether that usufruct is testamentary or legal. He writes:

"In all cases in which a predeceased spouse bequeaths to the surviving spouse a right of usufruct, the right may qualify as a legal usufruct, even if the usufruct is over separate property. However, it would be absurd to suggest that because the application of Article 890 ordinarily favors the interests of the surviving spouse a testator necessarily establishes a legal usufruct when he grants a usufruct to his surviving spouse. A testator enjoys testamentary freedom not to confirm the legal usufruct under Article 890, and he may by will enlarge or diminish the rights that the surviving spouse has under Article 890 in the absence of a will. As in the past, the question of the nature of the usufruct that the testator intended to create is a matter of testamentary interpretation.

In the absence of express language qualifying the usufruct as legal or testamentary, the intent of the testator must be gathered from the provisions of the will. When a testator grants to the surviving spouse as usufructuary rights that are incompatible with the notion of legal usufruct, he intends to grant a testamentary usufruct."

Yiannopoulos, Personal Servitudes, at 394. As examples of "rights that are incompatible with the notion of legal usufruct" Professor Yiannopoulos uses the hypothetical of a testator authorizing the usufructuary to grant a mineral lease without the consent of the naked owner, in contravention of Louisiana Mineral Code Article 190(B), and the hypothetical of the testator granting the usufructuary free reign to dispose of at his discretion corporeals and incorporeals, movables and immovables, contrary to Article 568 of the Civil Code.

In the case at bar, we can find nothing in Dr. Rozas' testament which would indicate that his intent was to create a testamentary and not a legal usufruct. Essentially, defendant received the disposable portion of the estate in full ownership and a usufruct over the community and separate property bequeathed to plaintiffs. We determine that such a bequest is not "incompatible with the notion of legal usufruct" and in no way constitutes an adverse disposition.

Defendant does argue, however, that the usufruct of all...