961268 La.App. 1 Cir. 6/20/97, Succession of Moore
| Decision Date | 20 June 1997 |
| Citation | 696 So.2d 1040 |
| Parties | Cir |
| Court | Court of Appeal of Louisiana — District of US |
Edward Reynolds, Metairie, for Donna M. Everett Executrix/Appellant.
Dennis Hauge, Prairieville, for Appellee Alton Moore.
Before LOTTINGER, C.J., and FOIL and FOGG, JJ.
[961268 La.App. 1 Cir. 2] LOTTINGER, Chief Judge.
This is an appeal of the trial court's grant of reimbursement against the estate of Effie Moore.
In 1981, Effie Moore (Effie) moved in with her adopted son, A.D. Moore, and his wife, Joan Moore (the Moores). The Moores allege that prior to the move, Effie agreed that she would leave her estate to A.D. in exchange for his taking care of her for the remainder of her life. In a will executed on March 27, 1978, Effie bequeathed her entire estate to A.D. Moore. Effie died on January 1, 1993. In a valid statutory will executed on March 30, 1989, Effie revoked all prior wills and left her estate to the Effie M. Moore Great Grandchildren Trust.
On January 8, 1993, Donna Moore Everett, the decedent's granddaughter, filed a petition to probate the statutory will and to be confirmed as the testamentary executrix. Because no further action was taken by Everett, A.D. Moore filed a rule to show cause on July 28, 1993, why Everett should not be removed as executrix for failure to perform her duties. Following a hearing on the rule on August 30, 1993, the trial court ordered Everett to render a detailed accounting of all financially related activities, file a detailed descriptive list of all assets and liabilities of the succession and make a written acceptance or rejection of A.D.'s forced heirship claim.
Everett complied with the trial court's order on September 28, 1993, by submitting a financial accounting, a detailed descriptive list and a rejection of A.D.'s forced heirship claim. The detailed descriptive list included numerous assets and contained a statement that Effie Moore's liabilities were unknown due to A.D. Moore's refusal to transfer any records of decedent's liabilities. A.D. Moore filed a traversal of the detailed descriptive list on October 18, 1993, challenging the value assigned to Effie's home and claiming that full and complete records of Effie's liabilities were delivered to Everett's attorney in March of 1993. These liabilities allegedly included a debt owed to the Moores for funds spent on behalf of Effie during the time she resided in their home.
At trial on the merits, parol evidence was submitted to prove the oral agreement between A.D. Moore and Effie and to prove the amount of the debt owed. Prior to the testimony of Joan Moore, counsel for Everett objected arguing that Joan's testimony was inadmissible [961268 La.App. 1 Cir. 3] under La. R.S. 13:3722. The trial judge conditionally overruled the objection and allowed Joan Moore's testimony subject to a later determination as to whether or not it was admissible under § 3722. Joan Moore's testimony was then offered to corroborate the documentary evidence submitted by the Moores and to prove the amount of the debt.
In written reasons for judgment, the trial judge found that the prerequisites of La. R.S. 13:3721 were satisfied and that parol evidence was admissible to prove the claim against the succession. Based on the uncontroverted testimony of Joan Moore, whom the trial judge characterized as an extremely credible witness, the trial judge concluded that "the Moores [were] entitled to a judgment and a claim of reimbursement for all the expenses they incurred caring for Effie Moore." The trial court ordered judgment in favor of A.D. Moore in the amount of $102,894.00 and recognized A.D. Moore as the forced heir of Effie Moore.
The main issues raised in Everett's appeal are whether the trial court erred in finding that the prerequisites of La. R.S. 13:3721 were met and in finding that Joan Moore was a credible witness under La. R.S. 13:3722.
Under La. R.S. 13:3721, commonly known as the Dead Man's Statute, parol evidence can be admitted to prove a claim against the decedent only if a suit or other action is filed within one year of the decedent's death. The purpose of the Dead Man's Statute is to prevent stale and unfounded claims from being filed against the succession which could have been refuted by the decedent had he been alive. Succession of Otts, 400 So.2d 1175, 1177 (La.App. 1st Cir.1981).
If a claim is brought against the succession within one year of the decedent's death, then parol evidence is admissible and the provisions of La. R.S. 13:3722 are applicable. Id. at 1177-78. If the one year requirement is not met, no parol evidence is admissible to prove the claim against the succession. Id. at 1178.
La. R.S. 13:3721 provides:
Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
[961268 La.App. 1 Cir. 4] (1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
(2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
(3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
(4) The claimant has submitted to the succession representative a formal proof of claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.
The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder.
Under the facts of this case, we find that A.D. Moore satisfied the third category of La. R.S. 13:3721 by opposing a document which amounted to a tableau of distribution. Pursuant to the trial court's orders of August 30, 1993, Everett filed a document entitled "Detailed Descriptive List." This document contained a list of all succession assets as well as liabilities. According to the Code of Civil Procedure, a detailed descriptive list indexes all succession property while a tableau of distribution lists succession debts. La.Code Civ. P. arts. 3136 and 3303. A.D. Moore's traversal of the aforementioned "Detailed Descriptive List," which contained a list of assets and liabilities, satisfied the third category of La. R.S. 13:3721.
Because A.D. Moore took action within one year of Effie's death, parol evidence was...
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