Succession of Bush, 9745

• Decision Date: 18 March 1974
• Docket Number: No. 9745,9745
• Citation: 292 So.2d 915
• Parties: Succession of George BUSH. Mrs. Audrey H. BOURGEOIS, Plaintiff-Appellant. v. Mrs. Laura Quave HANO, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 915

292 So.2d 915

Succession of George BUSH Mrs. Audrey H. BOURGEOIS, Plaintiff-Appellant. v. Mrs. Laura Quave HANO, Defendant-Appellee.

No. 9745.

Court of Appeal of Louisiana, First Circuit.

March 18, 1974.

Rehearing Denied April 22, 1974.

Writ Refused May 31, 1974.

Iddo Pittman, Jr., Hammond, for plaintiff-appellant.

Howard R. Fussell, Covington, for defendant-appellee.

Before BLANCHE, TUCKER and VERON, JJ.^*

BLANCHE, Judge.

A petition was filed by Mrs. Audrey H. Bourgeois, niece of decedent George Bush, wherein she presented for probate an olographic will dated and signed by decedent on December 28, 1964, and prayed that she be confirmed as testamentary executrix thereunder. The testator, George Bush, died of a self-inflicted gunshot wound, at the age of eighty-seven years, on July 7, 1972. A petition was also filed by Mrs. Laura Quave Hano, the estranged wife of decednet' nephew with whom he was living at the time of his death, requesting probate of a statutory will drawn in accordance with the provisions of LSA-R.S. 9:2442, dated and signed by testator on July 13, 1971, and asking that she be confirmed as testamentary executrix under the later will. In the 1964 will the testator bequeathed a forty-acre tract of land to Mrs. Bourgeois and a ten-acre tract of land plus $1,000 to Mrs. Hano. In the 1971 will the testator reversed the bequests and bequeathed the ten-acre tract to Mrs. Bourgeois and the forty-acre tract to Mrs. Hano. Mrs. Bourgeois attacked the statutory will on the basis of lack of testamentary capacity. Following a pre-trial conference at which Mrs. Hano set forth the grounds of her opposition to Mrs. Bourgeois' attack upon the 1971 will and named the persons she intended to call as witnesses in support of the 1971 will, Mrs. Bourgeois filed a supplemental and amending answer to Mrs. Hano's petition for probate of the 1971 will, alleging for the first time that the 1971 will was not valid because it was not executed according to the pertinent Louisiana statutes, and in particular that it was not read to nor declared by the testator to be his last will and testament. Neither party seeking to probate the respective wills of the testator questioned the validity of the olographic will of 1964. Mrs. Hano claimed merely that it had been superseded by the statutory will of 1971. She prayed in the alternative that if this latter will be found invalid that the 1964 will be recognized as valid and that she be recognized as a legatee under it. Counsel for both parties stipulated to this effect.

Upon trial the vast bulk of the testimony of most of the witnesses was directed toward the testamentary capacity of the decedent George Bush, and the trial judge ruled in favor of the validity of the 1971 statutory will. The opponent to this will, Mrs. Audrey H. Bourgeois, has appealed, addressing herself on appeal principally to the question of the proper execution of the 1971 will; however, she alleges the following grounds of error:

'I.

'THE TRIAL COURT WAS IN ERROR IN FINDING THAT THE DECEDENT, GEORGE BUSH, HAD TESTAMENTARY CAPACITY ON JULY 13, 1971 THE DATE ON WHICH HE EXECUTED THIS STATUTORY WILL.

'II.

'THE TRIAL COURT WAS IN ERROR IN HOLDING THAT THE STATUTORY WILL HAD BEEN PROPERLY PROVED AND WAS EXECUTED IN ACCORDANCE WITH THE STATUTORY PROVISIONS.'

In Louisiana testamentary capacity is always presumed until the contrary is affirmatively established by satisfactory and convincing evidence. Succession of Schmidt, 219 La. 675, 53 So.2d 834 (1951). Testamentary cpacity is tested as of the time that the will was made, LSA-C.C. Art. 1472; Stewart v. Branch, 250 So.2d 474 (La.App.1st Cir. 1971), and the burden of proving lack of testamentary capacity at the time that the will was executed rests upon the party alleging it. Woods v. Society for Propagation of Faith, 251 So.2d 438 (La.App.1st Cir. 1971), writ refused, 259 La. 897, 253 So.2d 221. The degree of proof required to overcome the presumption of testamentary capacity has been held by the jurisprudence of this state to be similar to that required to rebut and overcome the presumption of innocence in favor of a person being tried for a crime. Succession of Brown, 251 So.2d 465 (La.App.1st Cir. 1971).

Decedent had been in a progressively deteriorating condition for some years prior to his suicide and prior to his testation in 1971. He suffered from leukemia, arteriosclerois, infections of various kinds, thrombophlebitis, and other ailments associated with old age. He had had a leg amputated and was receiving welfare assistance at the time of his death. Despite his physical disabilities the evidence preponderates that decedent George Bush was possessed of testamentary capacity at the time that he made his statutory will in 1971.

As an expert medical witness the opponent to the 1971 will presented Dr. Maurice J. Duplantis, a longtime general medical practitioner in the Covington-Madisonville area who had been the testator's treating physician from time to time. He testified particularly to a three-day episode in November, 1970, in which the testator had been under his care at the St. Tammany Parish Hospital and described his condition as follows:

'He became rather confused, refused to take any medicine, got rather hostile with everybody and it was requested of the family that they remove him from the hospital because he wasn't in any serious condition of his life and he was disrupting the entire hospital at that time.' (Record, p. 66)

Dr. Duplantis testified also that in his opinion the testator's mental condition was such that he could not have the mental capacity to make a will. Between this three-day period of extreme emotional distress accompanied by physical illness and the time that his will was confected eight months later Dr. Duplantis did not see the testator again. In fact, he did not see him again until after his death more than a year and one-half later. Dr. Duplantis also admitted that he had seen the testator at times when he was not confused.

Both of the physicians who had occasion to treat the testator in the last months of his life, Dr. Merlin H. Allen and Dr. P. J. Demarie, Jr., who treated him on February 4, 1971, and approximately March 26, 1972. respectively, testified...