Spiller v. Herpel

• Decision Date: 20 March 1978
• Docket Number: No. 11637,11637
• Citation: 357 So.2d 572
• Parties: T. D. SPILLER, Jr. v. Peggy Mattingly HERPEL, Individually and as Testamentary Executrix of the Succession of Ama Spiller Mattingly.
• Court: Court of Appeal of Louisiana — District of US

Page 572

357 So.2d 572

T. D. SPILLER, Jr. v. Peggy Mattingly HERPEL, Individually and as Testamentary Executrix of the Succession of Ama Spiller Mattingly.

No. 11637.

Court of Appeal of Louisiana, First Circuit.

March 20, 1978.

Writ Refused May 12, 1978.

Davis A. Gueymard and James H. Hynes, Baton Rouge, for plaintiff and appellant.

Donald L. Peltier, Peltier & Peltier, Thibodaux, for defendant and appellee.

Before LANDRY, SARTAIN and ELLIS, JJ.

ELLIS, Judge.

On November 18, 1963, Mrs. Ama Spiller Mattingly executed a statutory will containing the following bequest:

"I give and bequeath to my nephew, T. D. Spiller, Jr., the sum of Ten Thousand ($10,000.00) Dollars and also all of my interest in the land and residence located at 403 Ridgefield Road, Thibodaux, Louisiana, . . . ."

On March 22, 1968, Mrs. Mattingly was interdicted by judgment of the 17th Judicial District Court, and William W. Herpel, husband of her only daughter, Peggy Mattingly Herpel, was qualified as her curator.

Prior to her interdiction and for some time thereafter, Mrs. Mattingly resided in her home, which was the property bequeathed to Mr. Spiller. After it became necessary to place Mrs. Mattingly in a nursing home, the property on Ridgefield Road stood vacant for most of the time, although it was rented for several months.

Because the property was deteriorating, Mr. and Mrs. Herpel, who were unaware of the bequest to Mr. Spiller, decided to sell it. Court authorization was properly obtained to sell the house for $32,500.00 cash, and the sale was passed on November 2, 1971. It is undisputed that the sale of the property was not necessary for the support and maintenance of Mrs. Mattingly, whose income was more than sufficient for her needs. The funds received were deposited to Mrs. Mattingly's account, and were subsequently loaned to Mattingly Tractor & Implement Co., Inc., a family corporation, in which Mrs. Mattingly owned more than a 60 per cent interest. Mr. Herpel was the general manager of the corporation. As of Mrs. Mattingly's death these funds had not been repaid, and stood as credits in her name on the books of the corporation.

Mrs. Mattingly died on April 9, 1975, and her will of November 18, 1963, was admitted to probate. Under the terms thereof, Mrs. Herpel was named as executrix of the estate. Thereafter, plaintiff herein made demand on Mrs. Herpel, as executrix for the delivery of the legacy of the immovable property bequeathed to him. The executrix did not accede to the demand, on the ground that the bequest had lapsed or been revoked because of the sale of the property by the curator.

Plaintiff then filed the suit against Mrs. Herpel, demanding the delivery of the legacy, or the value thereof. Alternatively, plaintiff has alleged a cause of action for unjust enrichment, under Articles 21, 1965, 2292 and 2294 of the Civil Code. After trial on the merits, judgment was rendered dismissing plaintiff's suit, and he has appealed to this court.

The trial judge correctly decided the issues presented to him in a scholarly written opinion, which we now adopt as our own:

"It has been stipulated by the parties that the $10,000.00 particular legacy originally claimed in this litigation has been delivered in accordance with law and the only matter remaining to be resolved by this Court is the disposition of the particular legacy involving the premises located on Ridgefield Road in Thibodaux, Louisiana.

"It should be noted at the outset in this opinion that the plaintiff in his brief acknowledges the following: (1) 'At the outset it must be understood that there is no way the executrix can be compelled to deliver the particular legacy of the residence for the very simple reason that she does not have it to deliver.' (2) 'Obviously, the validity of the sale to Mr. Gros has not and cannot be attacked in this proceeding. Mr. Gros is not a party to this proceeding and the validity of the judgment authorizing the sale would not, in any event, be subject to collateral attack.' (3) 'The reason why plaintiff has not brought a direct action to set aside the sale is also apparent. It is because such an effort would be totally futile in that there is no evidence in this proceeding nor is there any indication in the record of the interdiction to suggest that the formalities of law had not been complied with,' and (4) 'Our examination of the record in the interdiction proceeding leads us to conclude that all formalities of law were, in fact, complied with. For these reasons we readily agree and respectfully submit that the property itself is totally beyond the reach of plaintiff.'

"The basic Louisiana law dealing with the validity of the bequest of the premises in this case may be found in Section 6 of Chapter 6 of Title II of the Louisiana Revised Civil Code which said section is entitled 'Of the Revocation of Testaments and of Their Caducity' which contains Articles 1690 through 1711. The caducity or inheritable quality of a donation mortis causa can be destroyed or rendered ineffective in two ways. The first is by revocation by the testator and the second is by lapse of the legacy. Revocation by the act of the testator can be express or tacit, or general or particular. R. C. C. Article 1691. The testator by his own act can revoke a testament by (1) another testament (R. C. C. Article 1692) or (2) by the alienation of the thing bequeathed by donation or sale (R. C. C. Article 1695). An inheritance lapses by (1) the prior death of an instituted heir or the legatee (R. C. C. Article 1697), (2) where the thing bequeathed had totally perished during the lifetime of the testator (R. C. C. Article 1700), (3) when the instituted heir or the legatee rejects it or is incapable of receiving it (R. C. C. Article 1703), (4) by the subsequent birth of a legitimate child to the testator or by the subsequent adoption or legitimation of a child by the testator, unless the testator has made testamentary provisions to the contrary or has made testamentary provisions for such child (R. C. C. Article 1705), or (5) the testamentary disposition is revoked on the grounds established by law (R. C. C. Article 1710). As pointed out by the very thorough and professional briefs of the attorneys for the parties to this litigation there is no Louisiana jurisprudence directly in point to guide the Court in this case. Accordingly, we must resort to collateral authority and analogy to reach a conclusion.

"The commentators on the French Civil Code and the leading authority on Succession Law in the State of Louisiana are of the opinion that a revocation of a testamentary bequest can only be made by the act of the testator himself personally, either express or tacit, and cannot be made by a third person or someone acting on his behalf. See Aubry and Rau, Civil Law Translations, Volume 3, Section 725; Planiol, Civil Law Treatise, Volume 3, Part 2, No. 2843; 22 Demolombe, Cours de Code Napoleon, des donations entre vifs et des testaments (1876) No. 238; and Oppenheim, Successions and Donations, 10 Louisiana Civil Law Treatise, Section 141 at page 264 (1973). Since the sale of the premises in question was accomplished by the curator of the testatrix, and since the testatrix did not personally give her consent or approval to the sale at the time of its consummation, it must be the holding of this Court in accordance with the above cited authorities that this action did not constitute a revocation as contemplated by the pertinent articles of the Louisiana Civil Code.

"The next issue to determine is whether or not the bequest of the testatrix lapsed pursuant to law. Article 1700 of the Civil Code provides that 'The legacy falls if the thing bequeathed has totally perished during the lifetime of the testator.' Here again we find no Louisiana jurisprudence to guide us on the issue of whether or not the sale of an interdict's property by her curator is equivalent to a loss of the thing bequeathed under the provisions of Article 1700. As is admitted in the brief of the plaintiff, the residence is gone forever and there is no legal means to recover it. It would appear that the leading authority in Louisiana and the majority of the French commentators support the view that the alienation of the thing bequeathed by the curator of an interdict observing all legal formalities and in due course of his administration caused the legacy to lapse, so that the legatee can claim neither the value thereof nor the price still due. In Oppenheim, Successions and Donations, 10 Louisiana Civil Law Treatise, Section 141 at page 264 appears the following wherein the author quotes with approval from 3 Planiol, Civil Law Treatise, No. 2837 (LA. State Law Inst. Transl. 1959) as follows:

'In discussing tacit revocation by alienation of bequeathed property, as provided in Article 1083 of the Code Napoleon, Planiol states:

'Tacit revocation also results from alienation of the object of the bequest (Art. 1038). Every alienation implies revocation, even if it is not final, for instance if it is made with the right of repurchase (remere). Although the testator-seller may use his option and own the object at the time of his death, the bequest still remains revoked. The effect is the same as if the property had returned into the testator's possession because of annulment of the alienation. Art. 1038 provides for this case expressly, so as to decide the controversies which existed in the old law. All this means that the simple intention to alienate brings about the revocation. Thereafter the ultimate fate of the alienation means little.

'It follows that: (a) if the alienation is made with a suspensive condition, the bequest is revoked only when the condition materializes; (b) no revocation results if the alienation was not voluntary (for instance, expropriation for public purpose; or sale by the tutor of a testator who has become an interdict). But the legatee still does not gain anything, since...