In re Succession of Cook, 2005 CA 0089 (La. App. 10/6/2006)
| Decision Date | 06 October 2006 |
| Docket Number | 2005 CA 0089. |
| Parties | IN RE: SUCCESSION OF ALBERT E. COOK, SR. |
| Court | Court of Appeal of Louisiana — District of US |
ON APPEAL FROM THE 32ND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF TERREBONNE, STATE OF LOUISIANA PROBATE NO. 9769, DIVISION "B", HONORABLE JOHN R. WALKER, JUDGE PRESIDING.
ROBERT J. PREJEANT, Houma, LA, Counsel for Appellants Joycelyn Brady Cook, Anita Cook Hazelwood, Kathy Lynn Cook, Ellen D. Cook, and Albert E. Cook, Jr.
JAMES M. FUNDERBURK, Houma, LA, Counsel for Appellees Estate of Albert E. Cook, Sr., and Terri Percle Cook.
Before: PARRO, McDONALD, and HUGHES, JJ.
This is an appeal from a final judgment and a judgment of possession in a succession proceeding by the adult children of the decedent, who contend trial court rulings made in favor of the decedent's putative surviving spouse were erroneous. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
At the time of his death on May 2, 1985, Albert E. Cook, Sr. (Mr. Cook) was living as husband and wife with Terri Percle Cook (Terri), with whom he had joined in a marriage ceremony on December 7, 1983. Terri was previously married to Richard Liner, from whom she had been divorced by judgment of the Thirty-Second Judicial District Court, rendered in open court on December 2, 1983, but not signed until December 12, 1983.
Mr. Cook was formerly married to Joycelyn Brady Cook (Mrs. Cook), from whom he had been divorced by judgment of the Thirty-Second Judicial District Court signed on September 23, 1983, and with whom he had four children who were living at the time of his death: Albert E. Cook, Jr. (Albert), Ellen Dawn Cook (Ellen), Anita Louise Cook Hazelwood (Anita), and Kathy Lynn Cook (Kathy). Mr. Cook had one other child with Mrs. Cook, Charlotte Cook, who predeceased him at age two; he had no other children.
On July 30, 1985, Terri filed a petition in the trial court seeking probate of the last will and testament of Mr. Cook and asking that she be appointed executrix of Mr. Cook's estate.
In his statutory will, executed March 19, 1985, Mr. Cook made the following special bequests to Terri: (1) an undivided 60% right, title, and interest in his residence (Lot 10, Block 21, Addendum 10, Summerfield Place, located on Aspen Drive, and referenced in the will by its full legal description); (2) a lifetime usufruct on the remaining 40% of the aforementioned residence; (3) all furniture, appliances, furnishings, drapes, and appurtenances located within this residence; and (4) all right, title, and interest in and to the accounting business known as General Business Services (GBS), including accounts receivable, good will, cash in the business checking account, office furniture and fixtures, typewriters, desks, chairs, adding machines, calculators, and related appurtenances, said fixtures and equipment being described more fully therein. Mr. Cook made the following additional specific bequests in his will: to Anita, an Oldsmobile vehicle; to Ellen, a Cadillac vehicle; and to all four children, all remaining property to share and share alike. Mr. Cook further appointed Terri as executrix of the succession with full seizin and without necessity of bond or other security.
Following the initial filing of the July 1985 petition and December 1985 return of the notary appointed to enter Mr. Cook's safety deposit box, the four children of Mr. Cook filed a May 1986 motion to require the executrix to file an accounting within thirty days; an order to this effect was signed by the court. Terri responded by filing a June 1986 opposition. No disposition appears in the record with respect to these filings.
In December 1988 Terri filed the following: a "Petition for Authority to Execute Dation En Paiement" to Premier Bank of South Louisiana with respect to Lots 12 and 13 of Wildwood Heights Subdivision and Lot 9 of Hollywood Fields Subdivision, a "Detailed Descriptive List of Succession Property," and a "Sworn List of Succession Debts."1 Notice of the intended dation was issued; however, no further action was taken to advance the conclusion of the affairs of the succession until 1999.2
On August 17, 1999 Mrs. Cook filed a motion alleging that she was a creditor of the estate of Mr. Cook by virtue of her status as co-owner with Mr. Cook of certain items of real estate. Mrs. Cook alleged that this property was left by Mr. Cook to their children and was not inherited by Terri. Mrs. Cook further sought an accounting from Terri, and asked the court to render a partial judgment of possession placing the Cook children in possession of the property at issue "subject to any claims of Joycelyn Brady Cook arising as a result of the termination of the matrimonial regime between Joycelyn Brady Cook and the decedent."
On September 22, 1999 Terri filed an accounting listing the assets and liabilities of Mr. Cook's estate. A judgment was signed by the trial court on December 7, 1999 homologating the accounting.
On September 1, 2000 Terri filed a "Petition for Possession of Particular Legacy" asking the trial court to place her in possession of the legacies made in her favor and representing to the court that she had paid all inheritance tax due on legacies to her.3 A "Judgment of Possession of Particular Legacy" was signed by the trial court on September 1, 2000, recognizing Terri as the surviving spouse of the decedent and placing her in possession of the bequests made in her favor by Mr. Cook in his will.
Thereafter on October 12, 2000 Terri filed a "Rule to Compel Heirs and Legatees to Pay Pro Rata Share of Louisiana Inheritance Taxes and Debts and Charges of the Estate and the Administration of the Estate."4 The Cook children responded by filing an answer denying the allegations of the executrix, and further asserting that the judgment previously rendered homologating the final accounting should be vacated, since they claimed they were not served and that there was no publication of notice prior to its rendition. The Cook children further asserted a right to traverse the accounting given by the executrix and enumerated alleged deficiencies. A supplemental and amended petition was filed by the heirs on May 30, 2001, which joined their mother, Mrs. Cook, as a petitioner. In this pleading the heirs reiterated their objections to the accounting of the executrix, and further asserted Mrs. Cook's claim that items of property listed as belonging to the estate were acquired with her separate funds and were her separate property.
Terri denied these allegations in pleadings filed between June and September of 2001, amended the detailed descriptive list of assets and debts by asserting over $97,000.00 in additional claims in her individual capacity, for maintenance of property of the estate, and asserted exceptions of prescription, no cause of action, and no right of action to certain claims of the Cook heirs and Mrs. Cook. In October of 2001 the Cook heirs filed a petition seeking the annulment of the judgment that had been rendered in September of 2000 placing Terri in possession of the particular legacies in her favor.
Thereafter the trial court rendered an interlocutory judgment, signed on July 29, 2002, in which it made the following rulings: Mrs. Cook and the decedent became separate in property in 1966 but continued to jointly own property;5 Mrs. Cook was owed $70,000.00 by decedent's estate; certain items of property (Hollywood Fields, Wildwood Estates, The Palms Apartments, and movables located in Mrs. Cook's Myrtle Grove home) should not be included as assets of the succession; valuations for the assets and debts of the estate were fixed; the proceeds from the sale of Leath Realty, Inc. stock donated by the decedent prior to his death to his children were held not to be succession assets but were to be included for tax purposes and to calculate the legitime; the exceptions and additional claims asserted by the executrix were denied; and it was held that the executrix was entitled to a fee of 2½% of the gross value of the estate. Further, the executrix was ordered to file an amended accounting, and the parties were given an opportunity for further traversal.6
Another interlocutory judgment was signed by the trial court on September 17, 2003, maintaining his prior rulings and ordering the inclusion of loans from Ellen and Terri in the principal amounts of $5,000.00 as debts of the estate, with each note bearing interest at the rate of 12% through September 9, 2003; debts of the decedent to other heirs were found not to be entitled to interest. Further, the trial court held that Terri was not entitled to reimbursement of medical bills in the amount of $6,824.43 for which insurance benefits had been received, and attorney's fees for the succession were fixed in the amount of $33,812.17. The trial court also vacated its September 1, 2000 partial judgment of possession. A second amended accounting, including these rulings, was filed September 18, 2003.
Following a final trial of the matter, heard October 27, 2003, judgment was signed by the trial court on March 26, 2004, ruling: that the usufruct granted to Terri "does not burden the legitime" and recalling any prior interlocutory rulings to the contrary; that none of the legatees had tacitly accepted the succession and/or any acceptance was with benefit of inventory; that "none of the parties is required to sell any of their interests in any succession property;" that the total value of assets of the succession was $288,585.00 and that the total debts of the succession were $184,199.42 (less $6,824.43 received in hospitalization insurance proceeds, for a net amount of $177,374.99) for purposes of ascertaining whether there was an impingement on the legitime ( that the executrix had paid and was entitled to credit for payment of $49,361.20 in succession debts); that in lieu of...
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