Ambrose Succession v. Ambrose

• Decision Date: 28 June 1989
• Docket Number: No. 20482-CA,20482-CA
• Parties: James M. AMBROSE SUCCESSION, et al., Plaintiffs-Appellants, v. Dorothy AMBROSE, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 37

548 So.2d 37

James M. AMBROSE SUCCESSION, et al., Plaintiffs-Appellants, v. Dorothy AMBROSE, Defendant-Appellee.

No. 20482-CA.

Court of Appeal of Louisiana Second Circuit.

June 28, 1989.

Snellings, Carso & Kennedy by Robert S. Kennedy, Jr., Monroe, for plaintiffs-appellants, Loyce Ambrose Forsythe and Karen Ambrose Richoux.

Levy, James & Shealy by Robert W. Levy, Ruston, for defendant-appellee, Dorothy Dugdale Ambrose.

Before SEXTON, NORRIS and HIGHTOWER, JJ.

SEXTON, Judge.

This is an appeal by two daughters against decedent's spouse seeking to invalidate their disinherison by their father. We affirm.

FACTS

Decedent, James Ambrose, who died on February 16, 1987, left a statutory will dated November 15, 1985, in which he sought to disinherit his daughters, Karen Ambrose Hagan Richoux and Loyce Ambrose Forsythe. The disinherison was based on three of the grounds listed in Louisiana Civil Code Article 1621, namely, (1) when a child has been guilty of cruelty to a parent, (2) when a child uses coercion or violence to hinder a parent from making a will, and (3) when a child fails to communicate with a parent for a period of two years after the child reaches majority, without just cause. Mr. Ambrose asserted in the will that his daughter Loyce came by his home and demanded that he make a will authorizing her to manage his separate property. When he refused to do so, she threatened to make his last years miserable. She cursed the decedent and his wife and insulted the decedent, according to his allegations. When asked to apologize, she refused. The parties have not been in contact since 1984.

The testator also asserted that his daughter Karen (also known as Jan) refused to let him see her children and on one occasion became violent and threw her parents out of her home. She has not had contact with the decedent since October 5, 1984. When Mr. Ambrose was hospitalized for lung cancer in 1984, she refused to be present or help her father.

The trial court determined that the facts asserted by the testator were sufficient to raise a rebuttable presumption under LSA-C.C. Art. 1621 that the facts set out in the act of disinherison supported the causes. The court found that the heirs did not carry their burden of rebutting the presumption as "their entire defense consisted of denials, and the preponderance of the evidence supported rather than refuted the causes for disinherison listed in the will."

The daughters appeal the judgment disinheriting them alleging that the trial court was clearly wrong in (1) finding that the specific allegations contained in the decedent's will were sufficient as a matter of law to justify the disinherison, and (2) finding that the trial court erred in failing to admit evidence of forgery by the decedent's widow in connection with the simulated sale of estate property as impeachment evidence in order to prove that the disinherison was part of a larger scheme to prevent the daughters from obtaining their inheritances.

The current total scheme of disinherison is to be accomplished by one of the forms prescribed for testaments. LSA-C.C. Art. 1618. The disinherison is to be by name, expressly done and for a just cause. LSA-C.C. Art. 1618. The current causes for disinherison are only those twelve specifically listed. LSA-C.C. Arts. 1620-1621. There is a rebuttable presumption that the facts set out in the act of disinherison are correct. LSA-C.C. Art. 1621. The forced heir has the burden of proving that the cause stipulated for disinherison did not exist or that he was reconciled with the testator after the alleged act at issue. LSA-C.C. Art. 1624.

In the instant case, there is no contest over the form of the disinherison, and it is clear that the causes listed in the instant testament fall within those in LSA-C.C. Art. 1621, which reads in pertinent part:

Art. 1621. Children, causes for disinherison by parents

The just causes for which parents may disinherit their children are twelve in number. There shall be a rebuttable presumption as to the facts set out in the act of disinherison to support these causes. These causes are, to wit:

....

2. If the child has been guilty, towards a parent, of cruelty, of a crime or grievous injury.

....

8. If the child used any act of violence or coercion to hinder a parent from making a will.

....

12. If the child has known how to contact the parent, but has failed without just cause to communicate with the parent for a period of two years after attaining the age of majority, except when the child is on active duty in any of the military forces of the United States.

The will sets forth the following facts with regard to Loyce.

Loyce Ambrose Forsythe, in 1982, came by my home and demanded that I make a will leaving her in charge to manage my separate property. I refused to do so, and she threatened to make my last years on this earth quite miserable. She has cursed me and my wife in person and over the phone, despite our repeated requests that she not do so. The last time being June, 1982, after I returned from the hospital. She called me on the phone and insulted me and cursed me until I began to cry. On September 4, 1984, I was very ill in Lincoln General Hospital, suffering from lung cancer. I called my daughter Loyce and asked her to apologize for things that had taken place in the past and to come to see me while I was in the hospital. Her response was that she would die and go to hell before she would apologize to me or her mother. I have not seen or heard from her since this incident. Loyce Ambrose Forsythe has been guilty of all of this cruelty on numerous occasions in spite of my efforts to be kind to her. It is my desire that she be disinherited from my estate and deprived of her forced legitime.

The will alleged the following facts with regard to Karen:

On numerous occasions over the previous years, Karen Ambrose Hagan has refused to allow me or her mother to see her children, Darrin and Stephanie. On November 25, 1983, ¹ we went to her home in LaPlace, Louisiana, to take the children their Christmas presents. She became violent and we were practically thrown out of her home. She has cursed me a number of times, both in person and over the telephone. She has not called us or had any contact with us since October 5, 1984. During September of 1984 when I was hospitalized for surgery for lung cancer, she refused to be present and offered no help in caring for me after the surgery. Karen Ambrose Hagan has been guilty of all of this cruelty on numerous occasions in spite of my efforts to be kind to her. It is my desire that she be disinherited from my estate and deprived of her forced legitime.

We agree with the trial court that the facts alleged by Mr. Ambrose with regard to Loyce Ambrose Forsythe were sufficient to qualify as an act of coercion which hindered him from making his will. We also agree that the alleged behavior of Karen Ambrose Hagan Richoux rises to the level of cruelty encompassed by LSA-C.C. Art. 1621(2). The statements that on one visit the daughter Karen "became violent" and practically threw her parents out of her home, that she cursed her parent over the telephone, and that she refused to assist her parent either during or after serious surgery are sufficient assertions of cruel treatment under the code article. See Matter of Succession of Chaney, 413 So.2d 936 (La.App. 1st Cir.1982), writ denied, 420 So.2d 449 (La.1982).

As we have determined that the facts alleged by Mr. Ambrose to support disinherison of both of his daughters are sufficient to fall within the pertinent provisions of LSA-C.C. Art. 1621, we now turn to the question of whether or not the daughters rebutted by a preponderance of the evidence the presumption that the causes asserted for their disinherison did not exist. LSA-C.C. Art. 1624. These questions are factual, and we find the determinations of the trial court are supported by the record and are not manifestly erroneous.

The evidence as it concerns Loyce reveals that she approached her father in 1982 and demanded that her father alter his will. At that time she threatened to make her father's life miserable if he failed to do so. This statement was overheard by Loyce's mother as well as a relative, Mrs. Barbara Smith, who unknown to Loyce, was in her parents' van. Loyce presented very little evidence to discredit the truth of the testimony of these two witnesses. By her self-serving testimony, she denied making these statements but offered no other evidence sufficient to indicate that the conversation did not in fact take place. The trial court specifically accepted the contrary evidence and we find no error. Since one of the causes for disinherison is found to exist, there is no need to evaluate the other asserted causes. Matter of Succession of Chaney, supra. The trial court finding with regard to Loyce is therefore affirmed.

The alleged facts with regard to Karen present a more difficult issue. The court determined that Karen was guilty of cruelty toward her father based upon the fact that she cursed her father on a number of occasions, she treated her father so badly when he visited her home that he felt unwelcome, she prevented her children from extended visits with her father, she refused to give her father her unlisted phone number, and she failed to visit her father when he was ill.

The allegations set forth by her father were somewhat different. He claimed that on numerous occasions she refused to allow him to see her children. ² The will stated that he went to her home in LaPlace and she became violent and practically threw him out of her home, that she cursed her parents a number of times, and that she had not called or had contact with her parents since 1984. ³ Also, she refused to be present and...