Alexander v. Alexander

• Decision Date: 27 March 1978
• Docket Number: No. 13521,13521
• Citation: 357 So.2d 1260
• Parties: Susan Michelle ALEXANDER, Plaintiff-Appellee, v. Hobert (Hobart) ALEXANDER, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1260

357 So.2d 1260

Susan Michelle ALEXANDER, Plaintiff-Appellee, v. Hobert (Hobart) ALEXANDER, Defendant-Appellant.

No. 13521.

Court of Appeal of Louisiana,Second Circuit.

March 27, 1978.

En Banc. Rehearing Denied May 10, 1978.^*

Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendant-appellant.

Shaw & Shaw, Homer, by James R. Hatch, Jonesboro, for plaintiff-appellee.

Before BOLIN, PRICE and HALL, JJ.

HALL, Judge.

Plaintiff's father died in late 1971, leaving a will by which he bequeathed all of his property to his brother, defendant herein, and by which he expressed his intent to disinherit plaintiff who was his only child. Plaintiff, defendant and decedent were all domiciled in California. The will was probated in California over the opposition of plaintiff. The will, including the disinherison of plaintiff, was valid under California law.

The decedent's sole or principal asset was an undivided interest in land located in Claiborne Parish, Louisiana. In 1973 defendant filed ex parte ancillary probate proceedings in Louisiana. Judgment was rendered ordering the will admitted to probate and executed, and recognizing defendant as universal legatee and as having inherited decedent's undivided interest in the land.

Plaintiff filed this suit in early 1976 for reduction of an excessive donation mortis causa infringing on her legitime as a forced heir under Louisiana law, for recognition of her ownership interest in the land, and for an accounting of timber sold and oil and gas lease monies received by defendant. After trial on stipulated facts and documentary evidence, judgment was rendered recognizing plaintiff as owner of a one-third interest in decedent's Louisiana estate, including the undivided interest in the land, together with all monies, royalties, revenues, produce and other benefits from the date of death of decedent, and ordering that defendant render an accounting of timber and forestry products, oil and gas royalties and lease monies, and other rents, products or revenues of the land since the date of decedent's death. Defendant appealed.

On appeal defendant contends:

(1) The will and disinherison is valid under California law which is applicable because all of the parties were domiciled in California and the will was executed in that state;

(2) The California probate judgment is entitled to full faith and credit in Louisiana and is res judicata as to plaintiff's rights in decedent's estate; and

(3) Alternatively, defendant is required to account for oil and gas lease monies only from the date of plaintiff's demand under LSA-C.C. Art. 1515.

I.

The law of the situs (Louisiana) governs the disposition by testament of real (immovable) property. Succession of Goss, 304 So.2d 704 (La.App.3d Cir. 1974), writ refused 309 So.2d 339 (La.1975), U.S. cert. denied, Goss v. Zuckswert, 423 U.S. 869, 96 S.Ct. 133, 46 L.Ed.2d 99 (1975). Under Louisiana law, a person with one legitimate child (forced heir) must leave one-third of his property to the child. LSA-C.C. Art. 1493. The child may be deprived of his legitime by the testator by disinherison only for just cause expressed in the testament. LSA-C.C. Arts. 1617-1624. The testament in this case did not express good cause for disinherison. The child may not, therefore, be deprived of her legitime and is entitled to have the excessive donation reduced. LSA-C.C. Arts. 1502, 1504. The judgment recognizing her as entitled to one-third of the testator's immovable property in Louisiana is correct.

Appellant argues that the child's "status" as heir or nonheir or disinherited heir is to be determined by California law under the general conflicts of law rule that "status" is to be determined by the law of the domicile. Succession of Goss, supra. The controlling status here is that of legitimate child, which status admittedly existed under either California or Louisiana law. Under Louisiana law, a legitimate child is a forced heir. The rules governing forced heirship are effects of status, governed by the law of the place. Sun Oil Company v. Guidry, 99 So.2d 424 (La.App.1st Cir. 1957). Disinherison is not a status, but a method of disposition or nondisposition, governed by the law of the situs of immovable property.

Louisiana law is applicable and supports appellee's claim.

II.

Appellant contends the appearance in the California court of appellee's guardian opposing probate of the California will on the grounds of undue influence and incompetency, and the subsequent probate of the will by the California court is res judicata and bars appellee's claim to reduce the excessive donation. The California judgment is not res judicata as that proceeding involved an entirely different object and cause of action than is asserted in the instant proceeding. The plea of res judicata is without merit.

III.

The judgment ordered defendant to account for the proceeds from timber sales and mineral leases from the date of the testator's death. Appellant contends that oil and gas lease monies are "fruits" and that under LSA-C.C. Art. 1515 the donee must only restore fruits received after the date of demand, rather than from the date of the decedent's death, since the demand for reduction was made more than one year after the donor's decease.

LSA-C.C. Art. 1515 provides:

"The donee restores the fruits of what exceeds the disposable portion only from the day of the donor's decease, if the demand of the reduction was made within the year; otherwise from the day of the demand."

Appellant concedes that the proceeds of the sale of timber are not "fruits" and that he must account for such proceeds. Succession of Rugg, 339 So.2d 519 (La.App.2d Cir. 1976), writ refused 341 So.2d 897 (1977).

Appellant argues, however, that the proceeds received from oil and gas leases are fruits, citing Milling v. Collector of Revenue, 220 La. 773, 57 So.2d 679 (1952); and McElwee v. McElwee, 255 So.2d 883 (La.App.2d Cir. 1971), for which he need account only from the date of plaintiff's demand.

Appellee argues that oil, gas and minerals, like timber, are not fruits, but are incorporeal immovables, the proceeds of which must be accounted for from the date of decedent's death, citing King v. Buffington, 240 La. 955, 126 So.2d 326 (1961); Gueno v. Medlenka, 238 La. 1081, 117 So.2d 817 (1960); Jackson v. Shaw, 151 La. 795, 92 So. 339 (1922); Elder v. Ellerbe, 135 La. 990, 66 So. 337 (1914); and Article 18 of the Mineral Code, LSA-R.S. 31:18.

Milling held that bonuses and royalties from oil and gas leases affecting the husband's separate property are like rent derived from ordinary leases and are "profits" or "fruits" which fall into the community of acquets and gains under LSA-C.C. Art. 2402. McElwee, relying on Milling, held that royalties from leases affecting the wife's separate property are fruits which fall into the community under LSA-C.C. Art. 2386.

Elder and Jackson held that proceeds from oil and gas leases are not fruits gathered from the land to which a good faith possessor is entitled prior to demand by the true owner under LSA-C.C. Art. 3453, since fruits contemplated under those articles mean things produced and reproduced and not things which dissipate the principal.

Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La.1975) recognized that a controversy exists over whether a good faith possessor is entitled to oil and gas lease royalties:

"There is some controversy as to whether mineral royalties are to be treated as fruits entitling a good faith possessor to retain them against the true owner. See Martel v. Hunt, 195 La. 701, 197 So. 402 (1940); Comment, The Measure of Damages for Unauthorized Production of Oil and Gas: The Role of Good and Bad Faith, 15 Tul.L.Rev. 291 (1941); Mason v. United States, 260 U.S. 545, 43 S.Ct. 200, 67 L.Ed. 396 (1923); Yiannopoulos, § 137, particularly notes 233 and 239, at 412 et seq."

The court awarded royalties accrued prior to demand to the good faith possessors under the extreme circumstances of that case in the interest of justice, but expressly declared it was not ruling on the issue and was not establishing either a general rule or an exception to a general rule.

Gueno and King held that a usufructuary is entitled to oil and gas lease proceeds from wells producing at the date of creation of the usufruct but not from wells drilled thereafter. These decisions were based primarily on the specific provision of LSA-C.C. Art. 552 which provides that a usufructuary is entitled to proceeds of mines and quarries actually worked before the commencement of the usufruct but has no right to mines and quarries not opened. However, discussion of the nature of oil and gas lease...