Succession of Lawrence

• Decision Date: 02 July 1993
• Docket Number: No. 92,92
• Citation: 623 So.2d 96
• Parties: SUCCESSION OF Neal Victor LAWRENCE. CA 1272.
• Court: Court of Appeal of Louisiana — District of US

Page 96

623 So.2d 96

SUCCESSION OF Neal Victor LAWRENCE.

No. 92 CA 1272.

Court of Appeal of Louisiana, First Circuit.

July 2, 1993.

Sondra Arlt Cheek, Bogalusa, for Crain.

Raymond J. Brandt, Metairie, for Lawrence.

Before CARTER, LeBLANC and PITCHER, JJ.

PITCHER, Judge.

Lorell Ingram Crain ("Ms. Crain"), testamentary executrix of the estate of Neal Victor Lawrence ("decedent"), suspensively appeals from a trial court's judgment granting a motion for summary judgment, which recognized appellee, Neal Allen Lawrence ("Lawrence"), as a forced heir of the decedent. We affirm.

FACTS

Decedent died on February 23, 1991, leaving a statutory testament that was executed on April 2, 1990. In the testament, he named Ms. Crain as testamentary executrix and sole legatee. The testament stated in part, "I have been married twice, first to Mildred Podriznick from whom I was divorced in Shreveport, Louisiana in 1952, and second to Mildred Diggle from whom I was divorced in Shreveport, Louisiana in 1958. Of these marriages no children were born. I have no children whatsoever...." On March 21, 1991, Ms. Crain entered the testament for probate and was confirmed as testamentary executrix on the same day.

On May 3, 1991, Lawrence intervened in the succession proceeding by filing a petition to be recognized as an heir of decedent. Lawrence alleged in his petition that he was the legal and lawful heir of the decedent, and as such, he was entitled to be recognized as decedent's lawful and forced heir. Lawrence also alleged that he was entitled to his legal and lawful portion of the decedent's estate. The trial court, on September 3, 1991, pursuant to a joint stipulation, granted judgment recognizing appellee as the son of decedent and ordered appellant to file into the record an amended Affidavit of Death, Heirship and Domicile.

On March 18, 1992, Lawrence filed a motion for summary judgment, seeking to be recognized as decedent's forced heir. He alleged that there were no genuine issues of material fact and that, pursuant to the provisions of LSA-R.S. 9:2501, he was entitled to judgment as a matter of law. After a hearing, the trial court granted the motion for summary judgment, stating in his oral reasons for judgment that the decedent's will was made prior to the amendment of LSA-C.C. art. 1493 and that, in order to disinherit, the intent of the testator would have to be expressly stated. He further stated that he did not believe that an intent to disinherit had been expressly stated in the decedent's will. This suspensive appeal followed.

Appellant has set forth the following assignments of error for our review:

1. The trial court is in error in holding that LSA-C.C. Art. 1493, as amended by Acts of 1990, No. 147 requires an express intention to disinherit.

2. The trial court is in error in finding no genuine issue of fact existed and by the granting of a Motion for Summary Judgment.

ASSIGNMENT OF ERROR NUMBER ONE

On appeal, Ms. Crain contends that LSA-C.C. art. 1493 is the threshold article for consideration, and under this article, Lawrence is not a forced heir. She argues that, because LSA-C.C. art. 1493 is dispositive of the issue of forced heirship in this case, decedent was not obliged to expressly disinherit Lawrence.

LSA-C.C. art. 1493, as amended by Act 147 of the 1990 Regular Session of the Legislature, sets out the new forced heirship law in Louisiana. The act became effective as of July 1, 1990, and provides:

Forced heirs are descendants of the first degree who have not attained the age of twenty-three years, or of any age who, because of mental incapacity or physical infirmity, are incapable of taking care of their persons or administering their estates.

For purposes of forced heirship, representation of a descendant of the first degree who predeceased the donor is permitted if that descendant would not have attained the age of twenty-three years at the donor's death.

LSA-R.S. 9:2501, also as amended by Act 147 of the 1990 Regular Session of the Legislature, serves as a transitional statute for interpreting testaments that were executed prior to July 1, 1990, when the testator dies after June 30, 1990. This statute states:

A. The provisions of Act No. 147 of the 1990 Regular Session shall become effective on July 1, 1990 and shall apply to the successions of all persons who die after June 30, 1990.

B. If the person dies testate, and the testament is executed before July 1, 1990, then the testator's intent shall be ascertained according to the following rules:

(1) That the testament shall be governed by the law in effect at the time of the testator's death in the following instances:

(a) When the testament manifests an intent to disinherit a forced heir or to restrict a forced heir to the legitime in effect at the time of the testator's death;

(b) When the testament leaves to the forced heir an amount less than the legitime in effect at the time the testament is executed; or

(c) When the testament omits a forced heir and the language of the testament indicates an intent to restrict the forced heir to an amount less than the legitime in effect at the time the testament is executed.

(2) That in all other instances the testament shall be governed by the law in effect on June 30, 1990.

(3) That the term forced heir, as used above, shall mean a forced heir at the time the testament is executed. (Emphasis added).

Under LSA-R.S. 9:2501B(1), the new forced heirship law applies if a testament possesses the characteristics of subparagraphs (a), (b), or (c). This is not the case before us. Subparagraphs (a) and (b) are clearly inapplicable to decedent's testament, in that it does not manifest an intent to disinherit Lawrence or to restrict his legitime; and it does not leave him an amount less than his legitime. Because Lawrence's name is omitted from the testament, it would appear that subparagraph (c) would be applicable under this provision. However, subparagraph (c) uses "and" in the conjunctive and requires, in addition to the omission of a forced heir, language in the testament that indicates an intent to restrict the forced heir to an amount less than the legitime in effect at the time the testament is executed. The second part of (c) is not present in this case making the entire subparagraph inapplicable. Since none of the characteristics of subparagraphs (a), (b), or (c) of LSA-R.S. 9:2501B(1) are present in decedent's testament, the rules for interpretation of testaments direct us to the law in effect on June 30, 1990, in accordance with LSA-R.S. 9:2501B(2).

The law in effect on June 30, 1990, was that all descendants of the first degree, regardless of age, were considered forced heirs, and, if one descendant survived the decedent, then he or she was entitled to receive one-fourth of the decedent's estate as his or her legitime. However, forced heirs could be deprived of their legitime, or legal portion, under certain circumstances if the testator followed the guidelines for disinherison pursuant to LSA-C.C. arts. 1617 et seq. Specifically, LSA-C.C. art. 1619 states that the disinherison must be made by name and expressly, and for a just cause, otherwise, it is null. The just causes must be expressly recognized by law, as enumerated in LSA-C.C. art. 1621. ¹

The language of decedent's testament, stating that he had no children whatsoever, does not negate the fact that Lawrence was the son and forced heir of the decedent, nor does it imply an intent to disinherit. Furthermore, the absence of a forced heir's name in a testamentary disposition is not viewed as the disinherison of a forced heir. See Succession of Manuel, 551 So.2d 853, 855 (La.App. 3rd Cir.1989), writ denied, 556 So.2d 1263 (La.1990). Courts have strictly construed the provisions regarding disinherison and have only allowed for such where decedent has formally, expressly and for just cause disinherited an heir by name. See Succession of Vidrine, 562 So.2d 52 (La.App. 3rd Cir.1990); Ambrose Succession v. Ambrose, 548 So.2d 37 (La.App. 2nd Cir.1989).

We, therefore, find that the trial judge was correct in his assessment that the decedent's testament was governed by the law in effect on June 30, 1990, and that, under that law, Lawrence was a forced heir. Furthermore, he...