In re Succession of Soileau

• Court: Court of Appeal of Louisiana
• Writing for the Court: Genovese
• Citation: In re Succession of Soileau, 918 So.2d 563 (La. App. 2005)
• Decision Date: 30 December 2005
• Docket Number: No. 05-655.,05-655.
• Parties: SUCCESSION OF Attward Joseph SOILEAU.

918 So.2d 563

SUCCESSION OF Attward Joseph SOILEAU.

No. 05-655.

Court of Appeal of Louisiana, Third Circuit.

December 30, 2005.

Robert S. Leake, Baton Rouge, Counsel for Appellant: Sandra Kay Soileau Leake.

Robert G. Nida, Alexandria, Counsel for Appellant: Sandra Kay Soileau Leake.

W. Alan Pesnell, Shreveport, Counsel for Appellee: Sadie Veillon.

Ralph W. Kennedy, Alexandria, Counsel for Appellee: Sadie Veillon.

Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.

GENOVESE, Judge.

This matter involves a dispute over the interpretation of a will. The decedent's only child, Sandra Kay Soileau Leake ("Leake"), is appealing the grant of summary judgment in favor of the decedent's first cousin, Sadie Veillon ("Veillon"). The trial court named Veillon as the succession representative and also found her to be the sole legatee of the decedent, Attward Joseph Soileau ("Soileau"). For the following reasons, the judgment of the trial court is reversed and the case is remanded to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Soileau executed the will in question on May 15, 1990, and died on July 13, 2003. The testament provides, in pertinent part:

I, Attward J. Soileau, a citizen and resident of Rapides Parish, Louisiana, make this my last and testament, revoking all others.

I desire that all of my just debts be paid.

After all of my just debts have been paid, I will, give and bequeath the disposable portion of all of the property of which I die possessed, whether movable or immovable, choate or inchoate, corporeal or incorporeal, both separate and community, to my first cousin, Sadie L. Veillon.

It is my wish that the ownership of all of the remainder of the property of which I die possessed, whether movable or immovable, choate or inchoate, corporeal or incorporeal, both separate and community, pass to my child, namely Sandra K. Soileau Leake, in accordance with the intestate laws of the State of Louisiana.

I hereby expressly provide that in no event will my former wife, Lucille D. Soileau, have any usufruct, provided under the laws of the State of Louisiana, over any of the property.

I appoint George Veillon, as the executor of my estate with full seizin and to serve without bond.

I appoint Ralph W. Kennedy, Attorney at Law, Alexandria, Rapides Parish, Louisiana, as attorney for the executor.

In witness whereof, I have signed this my last will and testament in the presence of the witnesses and Notary Public hereinafter named and undersigned.

/s/ Attward J. Soileau
                ATTWARD J. SOILEAU (Testator)
                

SIGNED AND DECLARED by Attward J. Soileau, testator above named, in our presence to be his last will and testament, and in the presence of the testator and each other we have hereunto subscribed our names on this Fifteenth day of May, One Thousand Nine Hundred Ninety.

/s/ Attward J. Soileau
                ATTWARD J. SOILEAU (Testator)
                /s/ Martha P. Kennedy
                MARTHA P. KENNEDY (Witness)
                /s/ Janey L. Safford
                JANEY L. SAFFORD (Witness)
                /s/ Ralph W. Kennedy
                RALPH W. KENNEDY (Notary Public)
                

On August 6, 2003, Leake filed a request for notice with the Rapides Parish Clerk of Court's office asking to be notified of the opening of her father's succession. On September 23, 2003, Veillon petitioned the court to appoint a notary to inventory Soileau's safe deposit box. The court appointed Ralph W. Kennedy to perform said inventory.

On December 17, 2003, Leake petitioned the court for appointment as the provisional administratrix of her father's succession. In his will, Soileau had designated George Veillon as his executor, but George Veillon predeceased Soileau. Sandra Veillon opposed the appointment of Leake as the succession representative.

On April 20, 2004, Veillon filed a motion for summary judgment alleging that she was entitled to a judgment as a matter of law declaring: (1) that Leake is not qualified for the position of succession representative of the Soileau estate; (2) that Veillon should be appointed dative executrix of the succession; and (3) that Veillon is the only legatee under Soileau's will.

Leake filed a motion in limine on September 17, 2004, requesting the exclusion of certain verbal testimony and the striking from evidence of an affidavit submitted by Veillon in support of her motion for summary judgment. Leake also filed a cross-motion for summary judgment on October 8, 2004, asserting that she was entitled to a judgment declaring "that the provision in the testament, submitted by Veillon for probate, purportedly making a disposition to Veillon, is both superceded and revoked by the subsequent and last written disposition to Leake."

Prior to the hearing on the motion for summary judgment, the trial court heard arguments on Leake's motion in limine. By this motion, Leake attempted to prevent the introduction of live testimony from Appellee Sadie Veillon, Jerome Veillon, Martha Louise Kennedy and Ralph Kennedy. Further, Leake also wanted stricken from the summary judgment evidence the affidavit of Ralph Kennedy, which was submitted by Veillon attached to and in support of her motion for summary judgment, on the basis that Mr. Kennedy's affidavit did not contain personal knowledge as to Soileau's testamentary intent. After taking the matter under advisement, the trial court rendered judgment on October 27, 2004, immediately prior to the contradictory hearing on the cross-motions for summary judgment, granting Leake's motion in limine. The trial court declared it would "prohibit the use of witnesses and/or affidavits from those witnesses" in the summary judgment proceeding.

Immediately thereafter, the parties proceeded to present their arguments on the issue of the application of the civil code rules and the jurisprudential interpretations of the dispositions in Soileau's will to Veillon and Leake. Veillon argued that the testament limits Leake to the forced portion; therefore, because Leake is not a forced heir by the law in effect on the date of Soileau's death (July 13, 2003), the disposable portion bequeathed to Veillon is the entire estate. Relying on La.Civ.Code art. 1615, Leake argued that Soileau revoked his testament to Veillon in the very next paragraph when he wrote a "contradictory provision" which disposed of the remainder of his property bequeathed to Leake "in accordance with the intestate laws of the State of Louisiana." Leake asserted that this provision, the one written last, entitles her to receive the entirety of Soileau's estate.

The trial court issued its written reasons for judgment on December 1, 2004 as follows: (1) denying Leake's application to be appointed the provisional administrator of the succession; (2) granting Veillon's motion for summary judgment and decreeing her to be the sole legatee under Soileau's will declaring "that she is entitled to the disposable portion of the Succession, which the Court finds to be 100%;" (3) denying Leake's cross-motion for summary judgment; and (4) appointing Veillon as dative executrix of this succession proceeding with no security required. The trial court reasoned that Leake is neither an heir nor a legatee of the estate, that Soileau left the disposable portion of his estate to Veillon, and that Leake receives nothing under Soileau's will since "the disposable portion, where a decedent leaves no forced heirs, is 100%." The trial court, however, specifically stated in its reasons that "the affidavit of Mr. Kennedy (the attorney that originally prepared the will) expressly shows that the intent of the testator was to leave his daughter nothing." Leake appeals the grant of summary judgment in favor of Veillon.

LAW AND ANALYSIS

ASSIGNMENTS OF ERROR

On appeal, Leake asserts the following assignments of error:

(1) The trial court commited reversible error by granting Leake's motion in limine excluding all evidence but then without notice to Leake and giving her a hearing at which to present her evidence ignored its ruling and considered evidence only from Veillon that informed the court's decision.

(2) The trial court committed reversible error by relying in part on incompetent and extrinsic evidence in interpreting a will that both parties agreed was clear.

(3) The trial court committed reversible error by not considering the entirety of the language of the will in interpreting it.

(4) The trial court committed reversible error by not applying specific controlling codal articles directing how the court must resolve contradictory and incompatible provisions in the will.

DISCUSSION

Though Leake alleges four (4) specifications of error for review, the crux of her appeal is the trial court's ruling on the cross-motions for summary judgment. The trial court granted Veillon's motion for summary judgment and denied Leake's motion for summary judgment.

On October 27, 2004, the trial court granted the motion in limine excluding testimony and affidavits and also heard the arguments on the cross-motions for summary judgment and took evidence on the parties applications for succession representative. On December 1, 2004, the trial court issued written reasons for judgment granting Veillon's motion for summary judgment, declaring her to be the sole legatee under Soileau's will, and then appointed her as the succession representative.

Appellate courts review summary judgments de novo using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131; Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783. The appellate court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(B).

We will address the trial court's grant of summary judgment in...