97-859 La.App. 3 Cir. 2/4/98, Succession of Hackney
| Decision Date | 04 February 1998 |
| Parties | 97-859 La.App. 3 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Gus Voltz, Jr., Alexandria, for Paul Raymond Hackney.
Gregory Scott Erwin, Alexandria, for Lamar Russell, III.
Before YELVERTON, WOODARD and AMY, JJ.
[97-859 La.App. 3 Cir. 1] WOODARD, Judge.
Paul Raymond Hackney, the testator's third husband, appeals the trial court's annulment of his wife's will and the naming of Lamar Russell, III, the testator's only child, as executor of the estate, in his place. For the reasons assigned below, we reverse.
Nora Hackney died on April 20, 1996. Her survivors include her son from her first marriage, Lamar Russell, III, (Russell), and her third husband, Paul Raymond Hackney (Hackney). She appointed Hackney as the testamentary executor in her October 29, 1991 statutory will. After the will was probated and Hackney was confirmed as the executor on August 2, 1996, Russell brought actions, on January 21, 1997, to contest it.
[97-859 La.App. 3 Cir. 2] By judgment dated April 2, 1997, the court declared the entire will null and named Russell, upon his compliance with the law, as executor in Hackney's place. Hackney brought this devolutive appeal after his motion for new trial was denied.
Hackney asserts that the trial court erred in:
1. Holding that there were two bequests in the second paragraph of the testatrix's will which canceled each other.
2. Holding that where the intent of the testator is not easily ascertained by reading one of several bequests, the entire will is null and void.
3. Refusing to accept testimony of the Notary who prepared the will, regarding testator's intent at the time of the signing of the will.
4. Removing the testamentary executor without following statutory procedure and without any evidence to support his removal.
This case involves a son's opposition to his mother's will, which if deemed valid, would benefit her surviving widower in community. In will contest cases, the factual findings of the trial court are afforded great weight and will not be disturbed on appeal in the absence of manifest error. In re Succession of Fellman, 96-1738 (La.App. 4 Cir. 8/6/97), 698 So.2d 477.
Hackney argues that the trial court committed error by ruling that the following paragraph of the decedent's will contained two mutually exclusive bequests which canceled each other out, thus making the will invalid:
Second: I give, devise and bequeath unto my husband, PAUL RAYMOND HACKNEY, the disposable portion of my interest in and to the Community of Acquets and Gains which existed between us, subject to the right of usufruct of my husband, PAUL RAYMOND HACKNEY, until such time as he shall remarry or until his death, which I grant and confirm unto him.
[97-859 La.App. 3 Cir. 3] Emphasis added.)
Russell finds guidance in the case of Succession of Williams, 132 La. 865, 61 So. 852, 852 (1913), where five of David F. Williams' children filed suit to set aside his will based on the following bequests:
I leave and bequeath to my wife, Briget Farley, all I may be possessed of at the time of my death, she to have the usufruct during her life time provided she does not get married again and behaves herself....
(Emphasis added.) In that case, the Louisiana Supreme Court ruled as follows:
True, he bequeathed to his wife "all his property," and in the same sentence he bequeathed the usufruct to her. As to half, he sought to give that which did not belong to him. In the second place, he bequeathed the usufruct to her, something that, as a matter of course, could not be done. These legacies cannot be recognized being contradictory and one destructive of the other.
(Emphasis added.) Id. at 854.
Our review of the Williams case reveals that it has been overruled by Jordan v. Filmore, 167 La. 725, 120 So. 275 (1929). Although Russell may argue, in retrospect, that it was overruled on other grounds, this case has never again been cited for the proposition that the two legacies in question are irreconcilable. Therefore, we review this assignment of error based on other principles.
According to La.Civ.Code art. 535, "Usufruct is a real right of limited duration on the property of another." The term usufruct comes from the word "usus," meaning the right to use, and "fructus," meaning right to the fruits. Giroir v. Dumesnil, 248 La. 1037, 184 So.2d 1 (1966). Russell points out that in conferring a usufruct, the testator intends to confer less than full ownership to the legatee. Succession of Goode, 425 So.2d 673 (La.1982).
In keeping with the rationale that "[a] disposition must be understood in the sense in which it can have effect, rather than that in which it can have none," La.Civ.Code art. 1713, we, therefore, consider how the testator's dispositions can be reconciled. According to Giroir, 248 La. 1037, 184 So.2d 1, full ownership consists of the "usus," the "fructus" and the "abusus," which are "united in the same person." Thus, full ownership includes usufruct, and the two terms do not necessarily contradict each other. In addition, we find that the testator's repetition of Hackney's name after the [97-859 La.App. 3 Cir. 4] phrase "subject to the usufruct of my husband" is significant, since she already stated earlier in the paragraph that "I give, devise and bequeath unto my husband, PAUL RAYMOND HACKNEY, the disposable portion of my interest." We conclude that she repeated his name to refer to something other than the disposable portion of her interest in the community. Moreover, we also find that because the phrase "subject to the usufruct of my husband" is offset by commas, that phrase refers to something other than the first disposition.
Furthermore, had the decedent's succession proceeded intestate, Hackney would have received, at the very least, the usufruct according to La.Civ.Code art. 890. If we were to accept Russell's argument that the testator intended to confer less than full ownership to Hackney, then the will itself would be a useless document since the surviving spouse inherits the usufruct in a deceased spouse's estate by operation of law, unless there is an adverse testamentary disposition. Morgan v. Leach, 96-0173 (La.App. 1 Cir. 9/27/96), 680 So.2d 1381. It would be illogical for the testator to have gone through the trouble of writing a will and appointing her husband as executor without intending to give him more than the law allowed.
It is well settled that the invalidity of a portion of a will does not invalidate the will in its entirety. Succession of Lissa, 195 La. 438, 196 So. 924 (1940). According to Succession of Fertel, 208 La. 614, 23 So.2d 234, 238 (1945), when a will is subject to two interpretations and its intent is "obscured by conflicting expressions," the law
Although we held that the bequests did not cancel each other out, we note that Hackney would still prevail in light of the third section of the will: "I give, devise and bequeath unto my son, LAMAR RUSSELL, III, all of my separate property, which consists of the following: ...." When a provision in a will standing alone is not clear, the "court must take into consideration the entire context of the will." Estate of Doucet, 94-61, 94-62 (La.App. 3 Cir. 10/5/94), 643 So.2d 882, 884. The court must also consider other clauses "to reach, if possible, an interpretation which harmonizes the whole." Succession of Meeks, 609 So.2d 1035, 1037 (La.App. 2 Cir.1992), writ [97-859 La.App. 3 Cir. 5] denied, 612 So.2d 86 (La.1993) (citations omitted). Therefore, we conclude that the testator intended to confer full ownership of the disposable portion of her interest in the community to Hackney and the balance of her interest in the community property to her son, Russell, subject to the usufruct in favor of her husband. Finally, Russell would get full ownership of her separate property.
We next consider whether it was error for the trial court to not consider the testimony of the notary who prepared the will, as extrinsic evidence, in order to ascertain the intent of the testator. Courts must interpret a will according to its plain language since "the intent of the testator is the paramount consideration in determining the provisions of a will." Succession of Schiro, 96-1567 (La.App. 4 Cir. 4/9/97), 691 So.2d 1374, 1377, writs denied, 97-1400 (La.9/5/97), 700 So.2d 518; 97-1423 (La.9/5/97), 700 So.2d 518. However, when ambiguity clouds the testator's intent, "the court may consider all circumstances existing at the time of the execution of the will, and not just the language of the will, which may aid in determining the intent of the testator." Id.
La.Civ.Code art.1715 provides that:
When, from the terms made use of by the testator, his intention can not be ascertained, recourse must be had to all circumstances which may aid in the discovery of his intention.
We agree with the trial court's "first impression" that the paragraph in question "creates an ambiguity" and that there was an "obvious ambiguity--phraseology, typographical, whatever it was when the will was drawn." Therefore, the court erred in retracting its earlier statement that "the ambiguity, once you read it, stares you right in the face" after taking a five-minute recess.
Thus, to resolve the ambiguity, we may look to "extrinsic evidence and circumstances throwing any light on testator's intentions." Estate of Doucet, 643 So.2d at 884.
[97-859 La.App. 3 Cir. 6] Notary's Testimony and Notes
When the notary's testimony was proffered, he testified that the testator wanted to leave...
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