Succession of Filhiol

• Decision Date: 13 May 1907
• Docket Number: 16,376
• Citation: Succession of Filhiol, 44 So. 843, 119 La. 998 (La. 1907)
• Court: Louisiana Supreme Court
• Parties: Succession of FILHIOL. In re SCHMIDT

44 So. 843

119 La. 998

Succession of FILHIOL. In re SCHMIDT

No. 16,376

Supreme Court of Louisiana

May 13, 1907

Rehearing Denied November 18, 1907.

Appeal from Sixth Judicial District Court, Parish of Ouachita Luther Egbert Hall, Judge.

In the matter of the succession of R. M. Filhiol. Application of Inez Schmidt to probate will. H. H. Filhiol filed an opposition. Judgment ordering the probate of the will, except as to certain provision therein, and appointing Inez Schmidt as executrix. From the judgment, Inez Schmidt and H. H Filhiol appeal. Affirmed.

Andrew Augustus Gunby and Edgar Mayer Cahn (Howe, Fenner, Spencer &amp Cocke, of counsel), for appellant Schmidt.

Stubbs & Russell and Barnard B. Howard, for appellee.

NICHOLLS, J. BREAUX, C.J., concurs in the decree. PROVOST J and MONROE, JJ., dissent.

OPINION

NICHOLLS, J.

Roland M. Filhiol died in the parish of Ouachita, place of his domicile, on the 18th of May, 1906, leaving a large estate, consisting of both movables and immovables, the greater part of which was in the parish named, though he owned a dwelling house and grounds at No. 1715 Second street, in the city of New Orleans. He left an olographic will, dated Logtown, Ouachita parish, La., January 16, 1905. By this will he bequeathed to his nieces, daughters of a brother, $ 5,000 and a plantation designated by name; to the daughter of a friend, a plantation; to his brother, Hardy Filhiol, another plantation and $ 5,000; and to Laura Culpepper, $ 5,000. The remainder of his property he bequeathed to Miss Inez Schmidt, of New Orleans, whom he appointed testamentary executrix.

On May 23, 1906, Inez Schmidt filed an application in the district court asking for the probating of the will and the taking of an inventory of the property belonging to the succession. She prayed that H. H. Filhiol, brother of the deceased, be cited to attend the probating of the will, and that she be confirmed as testamentary executrix according to its provisions.

On the day fixed for the hearing, Hardy H. Filhiol filed an opposition to the will, in the particulars, on the grounds, and for the reasons therein set forth. In this opposition he averred that he was the sole presumptive heir and nearest legitimate kin of the deceased; that he was his brother; that he died without leaving any ascendants, or lawful descendants, or other brother or sister, or representative of any brother or sister, other than opponent; that as sole heir he opposed the probate and execution of the will.

He averred that the disposition and bequest in favor of Inez Schmidt was illegal, null, and void, for the reasons that the said Inez Schmidt and the testator had been living together long before and at his death in open concubinage, said Inez Schmidt being the kept woman or concubine of said Roland Filhiol for many years previous to and at the time of making and signing the will; that the testator purchased a house and lot in the city of New Orleans on the 3d of March, 1898, wherein he maintained and supported the proponent as his concubine; that during the aforesaid illicit relations between them two illegitimate children were born to the testator and proponent; that they traveled publicly together as man and wife, and that proponent bore his name in the neighborhood where she lived; that the said bequest in favor of the said Inez Schmidt was contrary to public policy, and is and was in violation of article 1481 of the Civil Code of Louisiana; that he opposed the appointment of Inez Schmidt as executrix of the will on the ground that, being incapacitated as residuary legatee for the reasons stated, she could not be named as executrix. In view of the premises, opponent prayed that the prayer for the probate and execution of the will be denied as to the bequest and disposition in favor of the proponent, Inez Schmidt; that the said bequest and disposition be declared to be illegal, null, and void, and of no effect, and that the prayer of said Inez Schmidt to be confirmed as executrix and for letters testamentary be denied; that he be recognized as the sole and only heir of Roland Filhiol; and that as such he be put in possession of the estate, and also appointed dative testamentary executor, in order to execute the provisions of will now herein opposed. He prayed for all such further orders in the premises as might be necessary and proper, and for full, general relief, and costs.

On the same day, Inez Schmidt filed an exception of no cause of action. This was overruled. She then filed an answer, insisting upon and reiterating the exception, and denying that H. H. Filhiol had any right, power, or authority to institute an action of nullity of part of the will in the form attempted in the present proceedings, which was purely summary in character, being an application to have the court examine the will and pass upon the form of same. She averred that opponent was one of the legatees under the provisions of the will; that he was estopped from having the part of the will probated and executed in his favor while attempting to annul and repudiate other provisions in said will, without removing and abandoning any and all rights under the will. She averred that Roland M. Filhiol lived and had his domicile in the parish of Ouachita, where he carried on an extensive planting and commercial business throughout his whole life, and where he died at his home. She specially denied that she and R. M. Filhiol lived together in open concubinage or otherwise, and that said charge against her and said Filhiol was unjust, untrue, and unfounded in fact; that she had been appointed by R. M. Filhiol the sole executrix of his last will and testament, which appointment she accepted, and opponent had set up no reason for denying and depriving respondent of her legal rights to said appointment; that the application of opponent for appointment as dative testamentary executor was totally unwarranted by law, being a large debtor of the deceased. She prayed that the prayer and demands of opponent be refused and rejected; that the will be probated and ordered executed; that letters testamentary be issued to her; and that the will in all its parts and provisions be respected and maintained. The exception of Inez Schmidt must have been overruled, for the case went to trial without objection, and evidence heard on both sides.

During the trial opponent filed an application as sole heir of his brother, claiming that under article 1671 of the Civil Code he was entitled to take possession of the property of the estate by tendering to pay all the movable legacies and by complying with the provisions of article 1012 of the Civil Code. He offered to deposit upon the orders of the court all sums necessary to pay the movable legacies and to give bond and security under the said article 1012. On the 19th of September, 1906, the district court rendered judgment probating the document presented by proponent, Inez Schmidt, as the last will and testament of R. M. Filhiol, deceased. The judgment ordered that the said will be deposited with the clerk of the district court for the parish of Ouachita, that it be filed and recorded by him in the probate record of said parish, and that said will be rendered executory and be executed according to its terms and provisions, except as to the donation in favor of Inez Schmidt in the said will, which provisions were in said judgment reduced to 10 per cent. of the whole amount of the estate, which donation as thus reduced was ordered to be paid out of the movables of said estate. The judgment appointed and confirmed Inez Schmidt as executrix of the last will and testament of R. M. Filhiol, and ordered that letters testamentary issue to her accordingly, and that she be placed in possession as such upon her taking the oath required by law.

Inez Schmidt appealed from this judgment, and H. H. Filhiol, objecting to some portions of the judgment, appealed also.

The judgment rendered by the district judge in this case is an exceedingly able one and very carefully prepared. We have minutely examined the record, and have reached the same conclusions as he did as to the bequest made in favor of Inez Schmidt.

The case reaches us under evidence such as to make it certain beyond dispute what the actual relations between R. M Filhiol and Inez Schmidt were, and this without the necessity of having recourse to inquisitorial methods and questionable testimony obtained through unreliable witnesses. Those relations were admitted by proponent herself in her testimony. She admitted that they continued unbroken from the time they commenced until Filhiol's death. This admission carries with it as a consequence the existence of the same relations, not only at his establishment at No. 1715 Second street, New Orleans, but at Filhiol's habitual residence in Ouachita, also on the Pullman car going to Cincinnati, at the hotel, and at the private boarding house in Garfield street, in that city. We understand counsel of Inez Schmidt to concede the existence of the relations themselves, but to deny that, under the circumstances which the evidence disclosed they were carried on, those relations were relations of "concubinage" at all, and specially to deny that they were those of "open concubinage." They maintain that R. M. Filhiol's home was not in New Orleans; that he did not "live at that place" with her; that the relations between them were at places far away from his home; that Filhiol stood quoad his acts and declarations touching those relations as those of a "third person," not binding on her unless she was present when they were made; that Filhiol was a bachelor, and his conduct was not to be scrutinized and condemned and dealt with as harshly as would be that of a married man; that...