Succession of Fuller
| Decision Date | 27 September 1989 |
| Docket Number | 20816-CA,Nos. 20762-C,s. 20762-C |
| Citation | 549 So.2d 878 |
| Parties | SUCCESSION OF Helen Smith FULLER. Elizabeth Smith COLLINS, Administratrix of the Succession of Jo Anne Fuller, Plaintiff/Appellant, v. Wade R. BAGGETTE, Administrator, Defendant/Appellee. 549 So.2d 878 |
| Court | Court of Appeal of Louisiana — District of US |
Cary & Cary by Curtis W. Cary, Shreveport, Terri H. Debnam, Monroe, for plaintiff/appellant.
Theus, Grisham, Davis & Leigh by Paul D. Spillers, Monroe, for appellee.
Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
In these consolidated appeals, plaintiff, Elizabeth Smith Collins, in her capacity as administratrix of the Succession of Jo Anne Fuller, appealed from the judgments of the trial court sustaining the exceptions of no right of action filed by the defendant, Wade R. Baggette, in his capacity as the administrator of the Succession of Helen Smith Fuller, in the separate actions by plaintiff to obtain possession of the assets of the Succession of Helen Smith Fuller.
For the reasons stated below, the judgments of the trial court are reversed and the matter is remanded for further action consistent with the views expressed herein.
This matter has been before this court on a previous occasion. See Succession of Fuller, 480 So.2d 754 (La.App. 2d Cir.1985), writ granted, reversed and vacated, 482 So.2d 619 (La.1986).
Factual Context
Helen Smith Fuller died intestate on May 11, 1976, survived by her daughter and only heir Jo Anne Fuller. Jo Anne Fuller managed the various properties in the estate but never opened her mother's succession or formally accepted it.
On January 10, 1984, Jo Anne Fuller died intestate leaving as her only heirs one maternal aunt, Elizabeth Smith Collins and two paternal aunts, Clara Fuller Tobin and Annie May Fuller Anderson. It appears from the record that Clara Tobin died in 1985, leaving George Edward Wiggers, Eloise Fuller Wiggers, Nancy Wiggers Baggette and Wade R. Baggette as her universal legatees.
Plaintiff, the aunt of Jo Anne Fuller and sister of Helen Smith Fuller, was appointed administratrix of the Succession of Jo Anne Fuller. Defendant, Wade Baggette, was appointed administrator of the Succession of Helen Smith Fuller, which appointment was affirmed in Succession of Fuller, supra. This court held in that case that there was no prohibition to the existence of separate administrations in the two successions.
On April 22, 1986, plaintiff, in her capacity as the administratrix of the Succession of Jo Anne Fuller, (hereinafter referred to as "Jo Anne's succession") filed a Petition for Possession in the Succession of Helen Smith Fuller (hereinafter referred to as "Helen's succession"). Plaintiff asserted that all of the assets of Helen's succession would, upon a judgment of possession, become the assets of Jo Anne's succession as Jo Anne was Helen's only heir. Plaintiff alleged that Helen's succession was relatively free from debt and that no tableau of debts and/or final distribution had been filed therein by the administrator. As the administratrix of Jo Anne's succession, plaintiff accepted unconditionally the assets and liabilities of Helen's succession. Plaintiff further alleged that the assets of Helen's succession were needed to pay debts owed by Jo Anne's succession and that there was no need for further administration of Helen's succession. Plaintiff prayed to be placed in possession of the assets of Helen's succession and upon the filing of a final account accepted by the court, that defendant be discharged as administrator.
In response, defendant filed a peremptory exception of no right of action alleging that plaintiff in her capacity as administratrix of Jo Anne's succession had no right of action to petition for possession or to be placed in possession of property belonging to Helen's succession. Defendant asserted that this court in Succession of Fuller, supra, had held that Jo Anne's succession was not an heir of Helen's succession but rather Clara Tobin, Annie Anderson and plaintiff individually were the heirs of Helen. Defendant argued that, therefore, upon Jo Anne's and Clara Tobin's death, the heirs of Helen's succession were Annie Anderson, George Wiggers, Eloise Wiggers, Nancy Baggette, Wade Baggette and plaintiff in her individual capacity. Defendant noted that La.C.C.P. Articles 3001 and 3004 require that all the heirs of an intestate must accept the succession unconditionally as a pre-condition to a sending into possession. Thus, as plaintiff in her capacity as administratrix of Jo Anne's succession was not the sole heir of Helen's succession, she could not petition for or be placed in possession. Defendant contended that all of Helen's heirs must unconditionally accept Helen's succession before there could be a sending into possession and only these heirs and legatees had a right of action to petition for or be placed in possession.
Defendant further argued that under La.C.C. Articles 944 and 945, Jo Anne's succession had no seizin or any right to take possession of the assets belonging to Helen's succession because seizin to Helen's succession passed to Jo Anne's heirs upon her death. Therefore, plaintiff as Jo Anne's administratrix had no real or actual interest to be asserted against Helen's succession for inheritance rights.
After a hearing on July 5, 1988, the trial court sustained the defendant's exception finding that plaintiff had no right of action to petition for or be placed in possession in her representative capacity. The court gave plaintiff 15 days within which to amend her petition. The plaintiff did not amend and this first appeal followed.
On August 5, 1988, plaintiff filed, in her capacity as Jo Anne's administratrix, a Petition to Collect Succession Property. Plaintiff again asserted that all the assets of Helen's succession were assets of Jo Anne's succession. Plaintiff contended that as the duly authorized administratrix of Jo Anne's succession, she had the legal obligation to collect the assets of that succession and thus the corollary right to maintain the action under La.C.C.P. Article 3191. The allegations of this petition were substantially the same as those contained in the first petition and plaintiff again prayed for possession of Helen's succession assets.
In response to the second petition, defendant filed a declinatory exception of lis pendens and peremptory exceptions of res judicata and no right of action. Defendant essentially argued that plaintiff demanded the same thing in both petitions and that re-litigation of the matter was barred by the effect of lis pendens and/or res judicata. Defendant asserted that plaintiff in her representative capacity had no right of action to collect property belonging to Helen's succession during its administration for the same reasons set forth in his original exception.
After a hearing on the exceptions, the trial court maintained its previous ruling and sustained the defendant's exception of no right of action finding that the position or status of the parties had not significantly changed by the rewording of the petition. From this judgment, plaintiff instituted a second appeal. On the motion of the plaintiff, this court consolidated the two appeals.
Issue on Appeal
The primary issue on appeal is whether plaintiff, in her capacity as the administratrix of Jo Anne's succession, has a right of action to obtain possession of the assets of Helen's succession which is under administration.
Legal Principles
La.C.C.P. Article 681 provides that:
(e)xcept as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.
La.C.C.P. Article 927 provides, in pertinent part, as follows:
The objections which may be raised through the peremptory exception include ... the following:
(5) No right of action, or no interest in the plaintiff to institute the suit.
An exception of no right of action raises the question of whether a remedy afforded by law can be invoked by the plaintiff and determines if the plaintiff has a right or legal interest in the subject matter of the suit. The question becomes whether this particular plaintiff belongs to the class of persons to whom the law grants a remedy for the particular harm alleged. The sole purpose of the exception is to challenge the plaintiff's interest in the subject matter of the suit or his legal capacity to proceed with the suit. See Babineaux v. Pernie- Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972); Harris v. Steele, 506 So.2d 542 (La.App. 1st Cir.1987), writ denied, 511 So.2d 1155 (La.1987); Emond v. Tyler Building and Construction Company, Inc., 438 So.2d 681 (La.App. 2d Cir.1983), and Marquis v. Cantu, 371 So.2d 1292 (La.App. 3d Cir.1979).
With respect to the general functions, powers and duties of a succession representative, La.C.C.P. Article 3191 provides, in pertinent part, as follows:
A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.
The succession representative has the duty to repair, maintain and protect the succession property. La.C.C.P. Article 3221. La.C.C.P. Article 3211 provides that a succession representative is deemed to have possession of all property of the succession and shall enforce all obligations in its favor.
In the performance of his duties, the succession representative may exercise all procedural rights available to a litigant. La.C.C.P. Article 3196.
La.C.C.P. Article 685 provides as follows:
Except as otherwise provided by law, the succession representative appointed by a court of this state is the proper plaintiff to sue to enforce a right of the deceased or...
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