94-1198 La.App. 3 Cir. 11/2/95, Succession of Songne

• Decision Date: 02 November 1995
• Citation: 664 So.2d 556
• Parties: 94-1198 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 556

664 So.2d 556

94-1198 La.App. 3 Cir. 11/2/95

SUCCESSION OF Burleigh Jude SONGNE, Sr.

No. 94-1198.

Court of Appeal of Louisiana Third Circuit.

Nov. 2, 1995.

Writ Denied Feb. 2, 1996.

Gary Evans Theall, Abbeville, for Burleigh Songne et al.

Patrick Robert Bossetta, New Orleans, for Brenda Trahan Songne Executrix.

Barbara Bossetta Brandt, Lafayette, for Brenda Songne as Legatee.

Before THIBODEAUX, WOODARD and KNIGHT ^*, JJ.

[94-1198 La.App. 3 Cir. 1] WOODARD, Judge.

Appellants, Charmaine Songne, Burleigh Songne, Jr., and Michelle Ann Songne, appeal the denial of their rules to annul decedent's will and to remove appellee, Brenda Trahan Songne, from her position as executrix.

FACTS

Burleigh Jude Songne, Sr., died on February 15, 1994, survived by his third wife, Brenda Trahan Songne, and three children by prior marriages, Charmaine Songne, Burleigh Songne, Jr., (a/k/a B.J.), and Michelle Ann Songne. Songne died testate, having executed a statutory will in which he left the forced portion of his estate to the three children and the disposable portion to Brenda. In his will, Songne also named Brenda as executrix. The will was probated and Brenda was confirmed as executrix on March 25, 1994. Although the will declared that Brenda was to serve without bond, she nevertheless posted a $150,000 bond in order to mollify the children.

On May 25, 1994, B.J. and Michelle moved to issue a rule ordering Brenda and Peter Landry, the attorney for the succession, to show cause why they should not be removed and disqualified, respectively, and why a dative testamentary executor should not be appointed. B.J. and Michelle asserted that Brenda had a conflict of [94-1198 La.App. 3 Cir. 2] interest with the other heirs and that she had put her interest ahead of theirs. All three Songne children then moved for a rule to annul Songne's will because it bore two different dates.

The trial court denied and recalled both rules on August 29, 1994. The children filed for supervisory writs from this court, which we denied on December 21, 1994, stating that the trial court's determination that the will is valid is a final, appealable judgment and that the trial court did not abuse its discretion in failing to remove Brenda. The children then applied for writs from the Louisiana Supreme Court, which were granted. On March 17, 1995, the supreme court remanded the matter to this court to be treated as an appeal.

The issues on appeal are whether the will is valid, whether the clause authorizing the executrix to allocate assets to satisfy the force portions is valid, and whether Brenda should be removed as executrix of Songne's succession.

LAW

I. VALIDITY OF THE WILL

A statutory will is invalid if it is not dated. Succession of Holloway, 531 So.2d 431 (La.1988). Extrinsic evidence is inadmissible to prove the date of a will from which a specific and identifiable date is absent. Id. However, extrinsic evidence may be introduced to resolve ambiguity regarding the date if in fact the will is dated. Id.

In the case sub judice, Songne's will is dated: it is dated November 6, 1991 on the first page and November 6, 1992 on the second page. Thus, the problem is not that the will is not dated, but that it is dated twice. The Louisiana Supreme Court has held that "if the will bears two different dates, it is not stricken with invalidity." Succession of Boyd, 306 So.2d 687, 692 (La.1975). Rather, extrinsic evidence may be introduced to prove which is the correct date. Succession of Cunningham, 142 La. 701, 77 So. 506 (La.1918).

Appellants argue that this holding should apply only to olographic wills, and not to statutory wills, because the former are written by hand and usually without legal assistance, whereas the latter are usually confected by attorneys. However, the supreme court has explicitly rejected such a distinction, stating that the reasoning of cases dealing with ambiguously dated olographic wills applies in the context of statutory wills. Holloway, 531 So.2d 431. This reasoning comports with the policy [94-1198 La.App. 3 Cir. 3] of this state to construe the statutory will provision liberally to maintain the validity of the will whenever possible. Succession of Guezuraga, 512 So.2d 366 (La.1987). Consequently, extrinsic evidence is admissible in the case sub judice to prove which of the dates contained in Songne's will is correct.

Preston Summers, the attorney who confected the will, and Kimberly Webb and Darlene Schexnyder, Mr. Summers's assistants, testified that Songne executed his will in their presence on November 6, 1992. Summers, Webb, and Schexnyder testified further that the first page of the will was dated incorrectly solely as a result of a clerical error: when Songne signed an amended version of a prior will on November 6, 1992, Summers altered the old will (dated in 1991) on his word processor, accidentally neglecting to change the year in the affirmation clause on the first page. The printed portion of the clause ends with the words "... this __ day of __, 1991," and the correct day and month were entered by hand. Appellants have produced no evidence casting doubt on this testimony. Therefore, we hold that Brenda proved that the will was executed on November 6, 1992, and consequently Songne's will is valid.

II. VALIDITY OF CLAUSE AUTHORIZING EXECUTRIX TO ALLOCATE ASSETS TO SATISFY FORCED PORTIONS

The will authorizes Brenda to assign specific assets to satisfy the children's forced portions. A testator may delegate to his executor the authority to select assets to satisfy the quantum or value of the legacy that he bequeaths to each of his legatees, if the testator has designated the quantum or value to which the legatee is entitled according to a formula or by a specific sum. La.Civ.Code art. 1573. Appellants argue that article 1573 does not validate the asset allocation clause because it was enacted solely to allow Louisiana residents certain advantages regarding federal estate taxes, and no estate taxes will be assessed against Songne's estate. However, we find this argument without merit or authority, as article 1573 does not on its face limit its application to federal estate taxes.

Appellants further argue that article 1573 may not be invoked because Songne failed to provide specific values for the legacies to which each of his three forced heirs is entitled or a formula by which the values may be determined, which is a prerequisite for a valid delegation of authority to allocate assets under article 1573. We disagree. Songne specially left the appellants their forced portion of his estate, [94-1198 La.App. 3 Cir. 4] thereby invoking the legal formula for the determination of the quantum to which they are entitled: namely, one-third to each of one-half of the value of Songne's estate at the time of his death. La.Civ.Code art. 1493. Thus, their individual legacies can be calculated with mathematical precision as of the moment of Songne's death, which is the proper time for determining the value of the forced portion. La.Civ.Code art. 1505.

Appellants also argue that permitting the executrix, herself a legatee, to select the assets that will comprise their legacies violates their constitutional right to the forced portion of Songne's estate. However, article 1573 governs this issue, and appellants have not challenged the constitutionality of that statute. Consequently, this assignment of error lacks merit.

III. REMOVAL OF EXECUTRIX

Finally, appellants argue that the asset allocation provision creates a conflict between her interests and the appellants' interests. They concede that a potential conflict of interest does not constitute sufficient grounds to remove an executrix, Succession of Dunham, 408 So.2d 888 (La.1981), until the executrix mismanages the estate or violates her fiduciary duties to other heirs or legatees, which they claim Brenda has done in the case sub judice.

A succession representative is a fiduciary of the succession and has the duty of collecting, preserving, and managing the property of the succession in accordance with law. La.Code Civ.P. art. 3191. She must act, at all times, as a prudent administrator, and she is personally...