Maddox v. Butchee

• Decision Date: 17 May 1943
• Docket Number: 36805.
• Citation: 203 La. 299,14 So.2d 4
• Court: Louisiana Supreme Court
• Parties: MADDOX et al. v. BUTCHEE et al.

14 So.2d 4

203 La. 299

MADDOX et al. v. BUTCHEE et al.

No. 36805.

Supreme Court of Louisiana

May 17, 1943

Emmet Alpha, of New Orleans, for plaintiffs-appellants.

Percy C. Smith, of Oakdale, for defendants-appellees.

PONDER Justice.

In this suit the plaintiffs, Wesley W. Maddox, David Tilley, for the use and benefit of his minor daughter, Johnnie Tilley, and J. C Nance, trustee, seek to annul a judgment ordering the sale of property belonging to the succession of Mrs. Bella Butchee Maddox to effect a partition by licitation and to enjoin the sheriff from selling the property. At the time the suit was filed, the lower court granted the plaintiffs a temporary restraining order and ordered a rule nisi to issue commanding the defendants to show cause why a preliminary injunction should not be granted. The temporary restraining order expired by limitation. The defendants interposed a plea of estoppel; a plea of prescription; exceptions of no right and no cause of action and answered the suit on its merits. On the date the rule nisi was to be heard, December 12, 1941 the trial was continued to a future date by consent of the parties. On motion of counsel for the plaintiffs, the case was set for trial on the merits for February 10, 1942, see transcript, page 20. The minutes of the trial court show that on February 10, 1942, the case was called for trial on the merits, pursuant to the previous fixing. The exceptions and pleas were referred to the merits. On trial of the merits, the lower court gave judgment, dismissing the plaintiffs' demands and dismissing the rule for injunction. The plaintiffs have appealed.

Dr. J. E. Hawkins and Bella Butchee were married sometime prior to the year 1900, no children being born of this marriage. Dr. Hawkins was the father of two children by a former marriage. Dr. Hawkins died in October, 1908. After his death, there was some litigation between his heirs and his surviving widow, Mrs. Bella Butchee Hawkins. This litigation was settled by a compromise agreement and an act of partition in kind, and the suit was dismissed. In the act of partition, Mrs. Bella Butchee Hawkins became the owner of several tracts of land located in the Parishes of Rapides, St. Landray, now Evangeline, and Calcasieu, now Allen Parish. After the death of Dr. Hawkins, his widow, Mrs. Bella Butchee Hawkins, married John S. Huff, who died in the year 1922, from which marriage no children were born. Sometime in the year 1928, Mrs. Bella Butchee Huff was united in marriage to Wesley W. Maddox, one of the plaintiffs in this suit, no children being born from this marriage. On October 15, 1931, Mrs. Maddox transferred three tracts of the land to her sister, Jerushia Butchee, a femme sole, by deed for a recited consideration of $600. Jerushia Butchee died a short time after the lands were deeded to her. On March 30, 1936, the other heirs of Jerushia Butchee deeded their interests in the three tracts of land to Mrs. Maddox for a recited consideration of $100. Mrs. Bella Butchee Maddox died on March 22, 1941, leaving no ascendants nor descendants. On September 18, 1941, her heirs, her brothers, sisters, nieces and nephews, the defendants herein, petitioned the court to be recognized as sole and only surviving heirs of the deceased Mrs. Maddox; to be sent into possession of the real estate belonging to her estate, being part of the real estate acquired by her on March 24, 1910 in the compromise agreement and act of partition with the heirs of Dr. Hawkins; and to be granted a partition of the property by licitation.

By judgment of the lower court, the heirs were sent into possession of the property as owners, and the property was ordered sold to effect a partition.

After the property was advertised to be sold at public sale to effect the partition, the plaintiffs instituted the present suit in which they seek to restrain the sale and have the judgment of partition annulled on the following grounds:

1. 'That the deceased left a last Will and Testament, reading as follows, to-wit:

"March 3, 1941'

"At my Death I donate and bequeath all the property I then own to may husband Wesley Maddox after his death it is to go to my great niece Johnnie Tilley'

'(signed) 'Bella B. Maddox".

2. 'That three (3) parcels of the land described in said Judgment of partition of Sept. 22nd, 1941, was acquired by Bella B. Maddox during the existence of the community, which existed between herself and her husband, Wesley W. Maddox.'

3. 'That the husband Wesley W. Maddox, is poor and his wife died rich, and that he therefore 'inherited' the marital fourth under C.C. art. 2382.'

4. 'That J. C. Nance, Trustee, one of the plaintiffs and appellants, was owner of one-half of all of the minerals in said six (6) items of real estate, ordered partitioned, having acquired the same of February 28th, 1940, and was not made a party to siad partition suit.'

The plaintiffs contend that the ruling of the trial court, refusing to admit the purported will in evidence, is erroneous. The lower court refused to consider the will because the plaintiffs failed to allege that the purported will had been admitted to probate and ordered executed, and on the further ground, that in fact it had not been probated and ordered executed.

Article 1644 of the RevisedCivil Code provides: 'No testament can have effect, unless it has been presented to the judge of the parish in which the succession is opened; the judge shall order the execution of the testament after its being opened and proved, in the cases prescribed by law.'

In the case of Succession of Dambly, 191 La. 500, 186 So. 7, 12, this court stated: 'It has been repeatedly held by this court that a will has no effect until probated and ordered to be executed by a competent court. See: Vidal's Heirs v. Duplantier, 7 La. 37, 45; Stewart's Curator v. Row, 10 La. 530; Marcos v. Barcas, 5 La.Ann. 265; Heirs of Landry v. Heirs of Duaron, 5 La.Ann. 612; Aubert v. Aubert, 6 La.Ann. 104; Lucas v. Brooks, 23 La.Ann. 117, 126; Sprowl v. Lockett, 109 La. 894, 33 So. 911; Succession of McDermott, 136 La. 80, 66 So. 546.'

The record shows that no effort was made to probate the purported will. The plaintiffs, Wesley W. Maddox and Johnnie Tilley, have no muniment of title except that claimed under the purported will. We do not believe, from the jurisprudence of this State, that they could be vested with any interest in the property until the will was probated and executed. However, be that as it may, these plaintiffs would be in no better position if the purported will was admitted in evidence and given effect, for the reason that it shows on its face in could have no legal standing because it contains a prohibited substitution.

Article 1520 of the Revised Civil Code provides:

'Substitutions and fidei commissa are and remain prohibited.

'Every disposition by which the donee, the heir, or legatee is charged to preserve for or to return a thing to a third person is null, even with regard to the donee, the instituted heir or the legatee.

'In consequence of this article the trebellianic portion of the civil law, that is to say, the portion of the property of the testator, which the instituted heir had a right to detain, when he was charged with a fidei commissa or fiduciary bequest is no longer a part of our law.'

We had occasion in the case of Succession of Heft, 163 La. 467, 112 So. 301, 302, to discuss prohibited substitutions forbidden by Article 1520 of the Revised Civil Code, and we stated: 'It is well settled that a testamentary disposition containing the stipulation that at the death of the legatee the property shall go to another legatee named in the will is not the same thing as the giving of the usufruct to the one and the ownership of the property to the other legatee. Marshall v. Pearce, 34 La.Ann. [557], 561; Succession of Ledbetter, 147 La. 771, 85 So. 908; Succession of Hunter, 159 La. 492, 105 So. 596. In order that a testament may convey the usufruct of property to one legatee and the ownership of it to another, the title to the property itself to the one legatee, as well as the usufruct to the other legatee, must be transmitted directly from the testator and invest the title in the one legatee and the usufruct in the other immediately at the death of the testator. Marshall v. Pearce, 34 La.Ann. [557], 561; Succession of Auld, 44 La.Ann. 591, 10 So. 877; Benson v. Cosine, 44 La.Ann. [913], 914, 11 So. 459; Succession of Stephens, 45 La.Ann. [962], 964, 13 So. 197; In re Billis' Will, 122 La. [539], 543, 47 So. 884, 129 Am.St. Rep. 355; Succession of Hall, 141 La. 860, 75 So. 802. A bequest of property in trust to one legatee to by by him transmitted to another is a fidei commissum. Dufour v. Deresheid, 110 La. 344, 34 So. 469; Succession of Reilly, 136 La. 347, 67 So. 27; Succession of Percival, 137 La. 203, 68 So. 409; Succession of Hall, 141 La. 860, 75 So. 802. A bequest of property to one legatee with the stipulation and on the condition that at his death and without any act of conveyance from him it shall belong to another legatee named in the will is a prohibited substitution. Marshall v. Pearce, 34 La.Ann. [557], 561; Succession of Ledbetter, 147 La. 771, 85 So. 908; Succession of Hunter, 159 La. 492, 105 So. 596. Fidei Commissa and prohibited substitutions--forbidden by article 1520 of the Civil Code--are essentially different from the giving of the usufruct to one legatee and the ownership to another, which is expressly permitted by article 1522 of the Civil Code.'

The doctrine has been cited with approval in the Succession of Feitel, 176 La. 543, 146 So. 145, and Succession of Blossom, 194 La. 635, 194 So. 572.

Counsel for the plaintiffs contends that the parcels of land Mrs....