Montgomery v. Administrators of Tulane Educ. Fund

• Decision Date: 13 October 2010
• Docket Number: No. 2009-CA-1670.,2009-CA-1670.
• Citation: 51 So.3d 60,264 Ed. Law Rep. 461
• Parties: Susan Henderson MONTGOMERY v. ADMINISTRATORS OF the TULANE EDUCATIONAL FUND.
• Court: Court of Appeal of Louisiana — District of US

51 So.3d 60

264 Ed. Law Rep. 461

Susan Henderson MONTGOMERY

v.ADMINISTRATORS OF the TULANE EDUCATIONAL FUND.

No. 2009-CA-1670.

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 13, 2010.

James A. Burton, Daniel J. Caruso, John F. Shreves, Simon Peragine Smith & Redfearn, LLP, New Orleans, LA, for Plaintiff/Appellant.

Edward H. Bergin, Genevieve M. Hartel, Jones Walker Waechter Poitevent Carrere & Denegre, L.L.P., Phillip A. Wittmann, Stone Pigman Walther Wittmann L.L.C., New Orleans, LA, Dennis H. Tracey III, Pro Hac Vice, R. Brian Black, Pro Hac Vice, Hogan Lovells US LLP, New York, NY, for Defendant/Appellee.

(Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).

ROLAND L. BELSOME, Judge.

**1 Although Josephine Newcomb signed her last will and testament over a century ago, it is the content of that document that creates the issue before this Court. When cases, such as this one, generate great passion amongst the interested parties, that emotion can sometimes veil the real issue. Here we are only presented with one sobering question: was the trial court correct in its finding that Mrs. Newcomb's will created an unconditional bequest to the Administrators of the Tulane Educational Fund? That answer must be yes.

The H. Sophie Newcomb Memorial College was created as a memorial to Mrs. Newcomb's deceased daughter. In 1886, Mrs. Newcomb donated $100,000 to Tulane University for the sole purpose of the Board establishing Newcomb College for the higher education of females. During this time period, there were no females enrolled in Tulane's undergraduate programs. Mrs. Newcomb continued to donate monies to Tulane for Newcomb College until her death on April 7, 1901.

At the time of her death, Mrs. Newcomb had an olographic will dated May 12, 1898, in which she named Tulane as her universal legatee. As the universal **2 legatee Tulane inherited approximately $2,668,409.00. Following Mrs. Newcomb's death, Tulane continued to operate Newcomb as a separate women's college. Newcomb College evolved over the century following Mrs. Newcomb's death. Many of these changes involved the merging of classes, faculty, and curriculums with Tulane's undergraduate programs. Although it remained a separate college within its University, Newcomb was not separately accredited and did not have independent degree granting authority.

Following the aftermath of Hurricane Katrina, Tulane, like many other institutions, was forced to alter its course of operation in an effort to maintain its existence. Those efforts resulted in Tulane's development and implementation of the "Renewal Plan". A major component of the Plan was the merger of Newcomb College and other separate colleges into one undergraduate college, Newcomb-Tulane College.

It was that organizational change that was challenged in Howard v. Administrators of the Tulane Educational Fund, 06-1276 (La.App. 4 Cir. 10/22/07), 970 So.2d 21, rev'd in part, vacated in part, 07-2224 (La.7/1/08), 986 So.2d 47. The Howard plaintiffs sought a permanent injunction ordering Tulane to resume the operations of Newcomb College in the manner in which it was in existence prior to Hurricane Katrina. Id. The merits of the Howard case were identical to the instant case. In Howard, the district court judge determined that Mrs. Newcomb unconditionally bequeathed her estate to Tulane. Id. Upon review by this Court, that ruling was affirmed with one judge dissenting. Id. A writ was **3 applied for and granted by the Supreme Court. Id. The Supreme Court did not address the merits of the Howard case, but instead, vacated this Court's judgment on a finding that the Howard plaintiffs had not properly established their successorship to Mrs. Newcomb. Id.

Subsequent to the Supreme Court's ruling in Howard, Susan Henderson Montgomery filed a Petition for Declaratory Judgment and to Enforce Condition and/or Charge. Like the Howard plaintiffs, Ms. Montgomery seeks to have Newcomb College return to the operating status of July, 2005. The basis for Ms. Montgomery'spetition was that Mrs. Newcomb's inter vivos and mortis causa donations to Tulane were subject to a condition and/or charge that required Tulane to maintain and operate Newcomb College as a separate degree granting institution.

On May 27, 2009, Ms. Montgomery filed a motion for summary judgment. Tulane responded with a cross-motion for summary judgment arguing that the Newcomb will did not impose any condition and/or charge on the legacy. The trial court heard arguments and rendered judgment on August 28, 2009. The judgment denied Ms. Montgomery's motion for summary judgment while granting Tulane's cross-motion for summary judgment. This appeal followed.

The correctness of the trial court's determination to grant the cross-motion for summary judgment is subject to de novo review.

**4 In support of its ruling, the trial court's reasons for judgment found that the language preceding Mrs. Newcomb's bequests in her will contained precatory language. The passage reads:

I have implicit confidence that the "Administrators of the Tulane Educational Fund" will continue to use and apply the benefactions, and property, I have bestowed and may give, for the present and future development of this Department of the University Known as the H. Sophie Newcomb Memorial College which engrosses my thoughts and purposes, and is endeared to me by such hallowed associations.

Upon its finding that the language was precatory, opposed to dispositive, the trial court ruled that Tulane's obligation to maintain Newcomb College arose out of a sense of duty and gratitude, not a condition and/or charge created by the language of the will. "Precatory words are mere wishes and suggestions, which are not binding in law." Succession of Baker, 432 So.2d 817 La. 5/23/83) (citing Succession of Barry, 250 La. 435, 196 So.2d 265 (1967) and Succession of Maguire, 228 La. 1096, 85 So.2d 4 (1955)); also see Black's Law Dictionary 1214 (8th ed.2004). We agree with the trial court's interpretation of the language in the paragraph, and specifically find that the phrase "I have implicit confidence" is used to advise not direct.

Additionally, a reading of the actual bequest also supports the trial court's ruling. The bequest to Tulane in Mrs. Newcomb's final executed Last Will and Testament dated May 12, 1898 reads:

Third: With the exception of the Special legacies and bequests herein above stated and made, I hereby give and bequeath to the "Administrators of the Tulane Educational Fund" of New Orleans, the whole of the property real, personal, and mixed, of which I am now possessed or which I may leave at the time of my death, and to that end and purpose I do hereby name and **5 constitute the said "Administrators of the Tulane Educational Fund" to be my universal legatee.

Addressing this exact issue in Hutchinson v. Tulane University of Louisiana, 171 La. 653, 131 So. 838 (1930), the Supreme Court identified the vested rights given in an unconditional bequest as separate and distinct from suggestive and advisory language written in subsequent paragraphs of the will.

In Hutchinson, the plaintiffs filed suit to recover the legacy to Tulane University on the grounds that the legacy had lapsed because Tulane University had not fulfilled that conditions imposed by Hutchinson in his will. Id. Much like the case before this Court, the testator, Alexander Hutchinson, had named Tulane University as his universal legatee providing that the legacy befor the sole and exclusive benefit of its Medical Department. Id. In subsequent paragraphs, Hutchinson discussed how he "contemplated", "recommended" and would "request" the legacy be used by the Medical Department. Id. The Supreme Court found that the bequest made in the first paragraph was an unconditional gift that vested title in the university and that the succeeding paragraphs did not create conditions but rather provided "advisory directions regarding the use of the property." Id.

The identical circumstances exist in the instant case; the will bequeaths upon Tulane an unconditional gift. Tulane has vested title in the property; and phrases made declaring Mrs. Newcomb's mere wishes or desires for the use of the money do not create a condition on the actual bequest. There is clearly no condition within the will nor or there any ambiguities to allow extrinsic evidence to enter the **6 lawful parameter of our review. This Court cannot take it upon itself to rewrite Mrs. Newcomb's will in order to achieve a desired result.

The Plaintiff urges this Court to consider the intent and charges placed upon Mrs. Newcomb's inter vivos donations to Tulane when interpreting her mortis causa donation. However, the clarity of the will limits our review to the four corners of the document and we are prohibited from delving further. The extraneous information presented by Ms. Montgomery in support of her position cannot be considered when the unambiguous nature of the will has been acknowledged. Matter of Succession of Williams, 608 So.2d 973, 975 (La.1992); La. C.C. art. 1611(A). More specifically, La. C.C. art. 1611(A) states in pertinent part: "[t]he intent of the testator controls the interpretation of his testament. If the language of the testament is clear, its letter is not to be disregarded under the pretext of pursuing its spirit." Id.

"When the words of the testament are plain and unambiguous, the testator's intent should be ascertained from the language used in the testament, giving the words used their usual significance." Derouen v. Derouen, 03-0623, p. 3 (La.App. 3 Cir. 1/28/04), 865 So.2d 940, 942 (citing Succession of Vatter, 192 La. 657, 188 So. 732 (1939)). As the record indicates, Mrs. Newcomb conferred with her attorney and spent some time finalizing her will, including redacting more specific and restrictive language to ensure that Tulane would be the beneficiary of her...