In re Succession of Wagner
| Decision Date | 08 August 2008 |
| Docket Number | No. 2008 CA 0213.,No. 2008 CA 0212.,2008 CA 0212.,2008 CA 0213. |
| Citation | 993 So.2d 709 |
| Parties | SUCCESSION OF Louis F. WAGNER. Succession of Leila Mae Cornay Wagner. |
| Court | Court of Appeal of Louisiana — District of US |
T.J. Seale, III, Patrick K. Reso, Glen Galbraith, Hammond, LA, Charles Schutte, Jr., Baton Rouge, LA, for First Appellant/Appellee, Warren Wagner, Executor of the Succession of Louis F. Wagner.
Margaret H. Kern, Covington, LA, for Second Appellant/Appellee, Faye L. Wagner, Executrix of the Succession of Leila Mae Cornay Wagner.
Before WHIPPLE, GUIDRY, and HUGHES, JJ.
These consolidated appeals arise from the successions of a husband and wife who died approximately nine months apart. The first appellant asserts the trial court erred in annulling a donation of gold coins from the husband to his son and in finding certain funds were donated to the couple's daughter to construct a guest house on her property. The second appellant complains the trial court erred in denying a reimbursement claim for certain community stocks sold by the son and in ordering the wife's estate to pay interest to the husband's estate on community assets in her possession at the time of her death. For the following reasons, we affirm in part, vacate in part, and remand.
Louis and Leila Wagner (the Wagners) were married on April 23, 1937, and had two children, Warren and Faye Wagner. Following Louis Wagner's death on May 22, 2001, Warren filed a petition for probate of his father's last will and testament, which named him as universal legatee and executor of his father's estate. While that succession was still under administration, Leila Wagner died on March 3, 2002. Except for a $100,000.00 bequest to a grandson, Leila left her entire estate to Faye. Subsequently, Faye opened her mother's succession with a petition for probate and was appointed as executrix thereof. The two successions were later consolidated, although the consolidation order specifically provided they would continue to be administered separately. Several issues arose in the proceedings regarding the classification of certain properties as being either community or separate in nature and as to the validity of certain donations made by Louis and Leila to one or the other of their children.
Following a hearing on various petitions and motions, the trial court rendered judgment, dated July 12, 2004, declaring a 1999 donation of gold coins by Louis Wagner to Warren to be a nullity based on the court's findings that the coins were community in nature and Leila Wagner did not consent to the donation. Leila Wagner was recognized as the owner of and sent into possession of one-half of the coins. The trial court also denied Warren's claim that his father's succession owned an interest in a guest house constructed on Faye's property, where the Wagners resided for several years before their deaths. The court concluded the funds used to construct the house were donated to Faye by her parents, and further denied Warren's claim for reimbursement for one-half of the money. Warren appealed this judgment, but the appeal was dismissed by this court as being taken from a partial judgment not certified as final. See Succession of Louis F. Wagner, 05-0319, 05-0320 (La. App. 1st Cir.3/24/06), 925 So.2d 773 (unpublished). Further proceedings followed in the trial court, which ultimately rendered judgment on May 31, 2007, disposing of the remaining claims between the parties and homologating the proposed tableau of distribution, as amended by the court. Warren and Faye each filed a separate appeal, which were consolidated by this court.
Warren raised the following assignments of error in his appeal:
1. The trial court erred in holding Warren had not acquired ownership of the gold coins through three years good faith possession under just title.
2. The trial court erred in nullifying the donation of gold coins at the request of a succession representative when the right to assert the relative nullity of this donation was personal to Leila Wagner.
3. The trial court erred in concluding a check that was never delivered was a manual gift, as well as in admitting and considering hearsay evidence to establish donative intent as to the funds used to build the guest house on Faye's property.
4. Alternatively, if this court affirms the finding that the funds used to build the guest house were donated to Faye, the trial court erred in not also holding that the donation of the gold coins was valid as a usual and customary gift commensurate with the economic position of the spouses.
In her appeal, Faye raised the following assignments of error:
1. The trial court erred in ordering the Estate of Leila Wagner to pay interest to the estate of Louis Wagner on all community monies in the possession of Leila Wagner at the time of her death, as well as on a $100,000 certificate of deposit donated by Leila Wagner to Faye.
2. Alternatively, if interest was properly awarded, the trial court erred in awarding that interest from the date of Louis Wagner's death, rather than from the date of the judgment homologating the tableau of distribution partitioning the community assets.
3. The trial court was manifestly erroneous in denying the reimbursement claim of the Succession of Leila Wagner for one-half of the value of certain stocks transferred by Louis Wagner to Warren in November 1997, and subsequently sold by Warren.
Warren contends the trial court erred in determining his father's estate was not entitled to one-half ownership of a guest house located on Faye's property based on the court's conclusion that the funds used to build the house were donated to Faye by the Wagners. Specifically, he argues the checks that were given to Faye by his parents to provide funds for the construction were not intended as donations to her.
Louisiana Civil Code article 1539 provides that "[t]he manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality." A check may be the subject of a manual gift.1 See Terrell v. Terrell, 26,863, pp. 3-4 (La.App. 2d Cir.5/10/95), 655 So.2d 600, 603; Richard v. Richard, 94-1258, p. 4 (La.App. 3d Cir.4/12/95), 653 So.2d 854, 856, writ denied, 95-1206 (La.6/23/95), 656 So.2d 1031; Succession of Browne, 176 So.2d 217, 219 (La.App. 2d Cir.), application denied, 248 La. 365, 178 So.2d 656 (1965). However, the donee of a manual gift must show by strong and convincing proof that the donor had the intent to irrevocably divest himself of the thing and that delivery was made. Biondo v. Biondo, 99-0890, p. 18 (La.App. 1st Cir.7/31/00), 769 So.2d 94, 107. Warren contends Faye failed to prove donative intent in this case.
The pertinent facts are that in 1998 the Wagners sold their home in Metairie and moved into a guest house adjacent to Faye's residence, Louis Wagner lived there until shortly before his death and Leila Wagner lived there for the remainder of her life. It is undisputed that the guest house was located on property owned by Faye. According to Warren, both he and his parents believed Faye would subdivide the property so that the land the guest house was built on would be separate from her property, but this was never done.
It is also undisputed that Faye, who is a licensed contractor, built the guest house with funds provided by the Wagners. A $125,000.00 check the Wagners received from the sale of their former home in Metairie constituted the largest part of these funds. Additional funds were provided by three checks, amounting to $40,000, that the Wagners instructed Warren to write and deliver to Faye in October 1998. Warren admitted he was directed by his parents to deliver these checks to Faye, but maintains they were not gifts, but merely payments to the contractor building the guest house, who just happened to be Faye. Thus, the dispute centers on whether the funds in question were intended as donations to Faye or merely as payments to her as the contractor building the guest house.
At the hearing of this matter, Faye testified her parents gave her the money in question with the understanding that she would use it to build a guest house on her property where they could live. She explained she was very close to her parents, and they wanted to live near her so that she could care for them. She testified her parents never asked her to transfer title to the guest house to them. Warren also testified that he never heard his parents ask Faye to transfer title to them.
In support of her contention that her parents intended to donate the funds to her, Faye offered two documents, Exhibits 3 and 4, into evidence. One was a written statement dictated and signed by her father (Exhibit 3), and the other was a written statement signed by both Mr. and Mrs. Wagner (Exhibit 4). Both documents referred to the $125,000 check given to Faye, as well as to the guest house being built on her property. Warren objected to the introduction of these documents on the grounds they were hearsay and not authenticated. However, upon questioning, he identified Exhibit 3 as a document that was signed by his father and handwritten by Warren himself, at his father's direction, on September 15, 1998. Faye identified Exhibit 4 as a document she wrote out in her parents' presence on May 10, 1998, which they both signed. Based on this testimony, the trial court ruled the documents were properly authenticated and admitted them into evidence over Warren's objection.
In brief, Warren argues the trial court erred in overruling his hearsay objection and admitting the documents because they did not fall within any of the hearsay exceptions. We disagree. "`Hearsay' is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." La. C.E. art. 801 C....
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