Jordan v. Filmore

• Decision Date: 02 January 1929
• Docket Number: 27990
• Citation: 120 So. 275,167 La. 725
• Court: Louisiana Supreme Court
• Parties: JORDAN v. FILMORE. Succession of MILES

120 So. 275

167 La. 725

JORDAN v. FILMORE.

Succession of MILES

No. 27990

Supreme Court of Louisiana

January 2, 1929

Rehearing Denied January 28, 1929

Appeal from Fourth Judicial District Court, Parish of Morehouse Percy Sandel, Judge.

Suit by Mrs. Hazel Minter Jordan against Mrs. Margaret Shelby Filmore, in which Mrs. Pearl Miles Reilly, known as Charlotte Shelby, intervened and filed will of Mrs. Julia B. Miles deceased, with petition that will be admitted to probate and that she be permitted to qualify as testamentary executrix which suit and opposition of plaintiff to the probate of the will were consolidated and tried together. From the decree, Mrs. Reilly and Mrs. Filmore appeal.

Amended and affirmed.

Hudson, Potts, Bernstein & Sholars, of Monroe, for appellants.

Madison & Madison, of Bastrop, for appellee.

O'NIELL C. J. LAND, BRUNOT, JJ., and THOMPSON, J., dissent.

OPINION

O'NIELL, C. J.

Mrs. Julia B. Miles died in Los Angeles, Cal., on the 5th of December, 1925, leaving an estate in Louisiana, consisting of a plantation in Morehouse parish, worth $ 50,000, cash on deposit in a bank there, amounting to $ 2,300, a credit for $ 125, and property in Sabine parish, the value of which is not shown by the record. There are two heirs to the succession, namely, Mrs. Pearl Miles Reilly, known professionally as Charlotte Shelby, who is the daughter of the deceased, and Mrs. Hazel Minter Jordan, who is the granddaughter, being the only child of a predeceased daughter, of Mrs. Miles. The two heirs are therefore forced heirs of Mrs. Miles, and would have inherited her estate equally if she had died intestate.

On the 13th of November, 1925, Mrs. Miles attempted to donate the plantation in Morehouse parish to Mrs. Margaret Shelby Filmore, a daughter of Mrs. Reilly, by an instrument in the form of a sale for $ 10. Mrs. Jordan brought suit against Mrs. Filmore to annul the donation on the ground that it was not valid in form, the instrument being not an authentic act, and there being no acceptance by authentic act. Mrs. Shelby intervened in the suit, and claimed the whole estate of her mother, under the latter's will, which is as follows:

"Los Angeles, Cal.

"Saturday, 21st Feb. 1925.

"This my last will and testament. This is to certify that my beloved daughter Pearl Miles Reilly, known as Charlotte Shelby, is to have and to hold and fall heir to all my belongings whatsoever, real estate, moneys, personal property, wherever located, and I further name and appoint her my Executrix.

"[Signed] Julia B. Miles.

"Witness: Chauncy T. Eaton."

Mrs. Shelby filed the will in court with a petition asking that it be admitted to probate and that she be permitted to qualify as testamentary executrix. Mrs. Jordan opposed the probate of the will and questioned its validity on several grounds. She disputed also Mrs. Shelby's right and qualification to be confirmed as executrix, and claimed that she, Mrs. Jordan, should be appointed administratrix. In her petition, praying for annulment of the will and opposing its probate, Mrs. Jordan prayed that she and Mrs. Reilly should be recognized as the forced heirs of Mrs. Miles, and that her estate should be divided equally between them. Mrs. Jordan's suit against Mrs. Filmore and Mrs. Jordan's opposition to the probate of the will of Mrs. Miles were, by mutual consent, consolidated and tried together; and, after hearing the evidence, the court rendered judgment, annulling the donation which Mrs. Miles had made to Mrs. Filmore, of the plantation in Morehouse parish, and at the same time the court gave judgment declaring the will of Mrs. Miles valid, but reduced the legacy of Mrs. Reilly to a half of the estate, on the theory that, as there were two forced heirs, the disposable portion was only a half of the estate, and, as the testatrix did not declare in her will that she intended the legacy of the whole estate to be an extra portion, Mrs. Reilly could take only a half of the estate -- either as heir or as legatee. The court, therefore, in its judgment, decreed that Mrs. Jordan was entitled to a half of the estate; and, in the decree, the court reserved to each of the heirs, Mrs. Reilly and Mrs. Jordan, the right to demand collation from each other, for any donation that might have been made to either of them by Mrs. Miles during her lifetime, and to assert or resist any claim for an indebtedness due from or to the estate.

The effect of the judgment, declaring Mrs. Jordan to be entitled to half of the estate, was the same as if the court had declared the will null -- except that Mrs. Reilly was allowed to perform the duties of executrix. She and Mrs. Filmore appealed from the decision. As Mrs. Jordan did not appeal, or file an answer to the appeal taken by Mrs. Reilly and Mrs. Filmore, the judgment is final in so far as it decrees the will to be valid. It is conceded by the appellants, Mrs. Reilly and Mrs. Filmore, that the judgment is correct in so far as it decrees the nullity of the donation to Mrs. Filmore of the plantation in Morehouse parish, and in fact that the judgment is correct in every respect except in so far as it reduces the legacy of Mrs. Reilly of the whole estate to only a half of the estate. It is conceded also by the appellants that Mrs. Jordan is entitled to a fourth of the estate as a forced heir, and, therefore, that the legacy of the whole estate to Mrs. Reilly should be reduced to three-fourths. The only question to be decided is whether Mrs. Jordan is entitled to only a fourth of the estate, as a forced heir, or is entitled to a half of the estate on the theory that the testatrix did not declare in unequivocal terms in her will that her intention was to leave the estate to Mrs. Reilly "as an advantage or extra portion." The issue in the case is stated in the brief filed on behalf of Mrs. Jordan, thus:

"The question in this case is not, as stated by counsel for appellant, whether, under the circumstances, your honors can conclude that the donor intended her daughter [Mrs. Reilly] to be privileged over her granddaughter [Mrs. Jordan], but is, whether or not, under the wording of the will which was executed by the testatrix and duly proved, the testatrix expressed in terms of unequivocal meaning, or in express terms, an intention to give her daughter, Pearl Miles Reilly, all of the disposable portion of her estate as an extra portion; and we believe that your honors will search the will in vain for any language showing any such intention or inference; and, as stated before, the apparent intention of the testatrix was to disregard the law of Louisiana in reference to inheritance and give all of her property to one forced heir to the entire exclusion of the other heir."

The attorneys for Mrs. Jordan cite and rely upon the following articles of the Civil Code, under the title "Of Collations," viz.:

"Art. 1228. (1306) * * * Children or grandchildren, coming to the succession of their fathers, mothers or other ascendants, must collate what they have received from them by donation inter vivos, directly or indirectly, and they cannot claim the legacies made to them by such ascendants unless the donations and legacies have been made to them expressly as an advantage over their coheirs, and besides their portion.

"This rule takes place whether the children or their descendants succeed to their ascendants as legal or as testamentary heirs, and whether they have accepted the succession unconditionally, or with the benefit of inventory."

"Art. 1229. (1307) * * * The obligation of collating is founded on the equality which must be naturally observedbetween children and other lawful descendants, who divide among them the succession of their father, mother and other ascendants; and also on the presumption that what was given or bequeathed to children by their ascendants was so disposed of in advance of what they might one day expect from their succession."

"Art. 1230. (1308) * * * Collation must take place, whether the donor has formally ordered it, or has remained silent on the subject; for collation is always presumed, where it has not been expressly forbidden."

"Art. 1231. (1309) * * * But things given or bequeathed to children or other descendants by their ascendants, shall not be collated, if the donor has formally expressed his will that what he thus gave was an advantage or extra part, unless the value of the object given exceed the disposable portion, in which case the excess is subject to collation."

"Art. 1233. (1311) * * * The declaration that the gift or legacy is intended as an advantage or extra portion, may be made in other equivalent terms, provided they indicate, in an unequivocal manner, that such was the will of the donor."

The attorneys for Mrs. Jordan rely also upon article 1493 of the Civil Code, which limits the disposable portion of an estate to two-thirds if the donor or testator leaves one child, one-half if he leaves two children, and one-third if he leaves three or more children; and they rely particularly upon article 1501, under the title "Of the Disposable Portion and the Legitime," viz:

"Art 1501. (1488) * * * The disposable quantum may be given, in whole or in part, by an act inter vivos or mortis causa, to one or more of the disposer's children or successible descendants, to the prejudice of his other children or successible descendants, without its being liable to be brought into the succession by the donee or legatee, provided it be expressly declared by the donor that this disposition is intended to be over and above the legitimate portion.

"This declaration may be made, either by the act containing the disposition, or subsequently by an instrument executed before a notary public, in presence of two...