Succession of Killingsworth

• Decision Date: 13 November 1972
• Docket Number: No. 8886,8886
• Citation: 270 So.2d 196
• Parties: Succession of Freddie Robertson KILLINGSWORTH. Mrs. Rome Schlater Johnston TUTTLE et al., Plaintiffs-Appellants, v. Edward Hill SCHLATER et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 196

270 So.2d 196

Succession of Freddie Robertson KILLINGSWORTH Mrs. Rome Schlater Johnston TUTTLE et al., Plaintiffs-Appellants, v. Edward Hill SCHLATER et al., Defendants-Appellants.

No. 8886.

Court of Appeal of Louisiana, First Circuit.

Nov. 13, 1972.

Rehearing Denied Dec. 26, 1972.

Writs Granted March 1, 1973.

Charles H. Dameron, Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for plaintiffs-appellants W . B. Middleton, Jr. and St. Paul Fire & Marine Ins.

R. J. Vandaworker, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-appellants Mrs. Leila May O. Cutshaw & W. P. Obier, Jr.

Victor A. Sachse and Paul M. Hebert, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for plaintiffs-appellants Mesdames Tuttle, Rowe, Bell, Miller & Norton.

John D. Kopfler, Hammond, for appellees John D. Kopfler, Edward Blount Kopfler and Clara MacK. Conley.

Byron R. Kantrow and Gerald L. Walter, Jr., Kantrow, Spaht, Weaver & Walter, Baton Rouge, for appellees Schlater, Appleton, Mitchell, Melton, etc.

Wm. A. Templet and W. B. Middleton, Jr., Plaquemine, for plaintiff-appellee Citizens.

Before LOTTINGER, SARTAIN and ELLIS, JJ.

SARTAIN, Judge.

These consolidated cases involve the validity vel non of a nuncupative will by public act and the resulting consequences if the same is declared a nullity.

The will in question was executed by Mrs. Freddie Robertson Killingsworth (decedent) on October 7, 1955, before W. P. Obier, and Iberville Parish Notary Public. Attesting witnesses were Lorraine Melancon (now Mrs. Passantino), Edna Lapeze, and R. G. Desobry.

Mrs. Killingsworth died on July 19, 1961. Mr. Obier departed this life on May 10, 1961.

Following Mrs. Killingsworth's death, the will was presented for probate and the Citizens Bank & Trust Company, Plaquemine, Louisiana, was appointed and confirmed as testamentary executor. Mr . W. B. Middleton, Jr., the surviving law partner of Mr. W. P. Obier, acted as attorney for the executor. Various acts of administration were performed, certain movable property was sold, and various debts paid. These acts are not complained of. However, the will contained a monetary bequest to Mr. Obier, the officiating notary. Some legatees were doubtful as to whether or not this particular bequest voided the entire will. Accordingly, the executor and certain legatees filed suit for declaratory judgment asking that the will be declared valid and only the bequest to the notary be stricken. Later the petition was amended and other plaintiffs were added. It alleged that certain heirs of decedent intended to urge the invalidity of the will on the additional grounds that the instrument was not personally typed by the notary. Declaratory relief was therefore sought on both points. In the amending petition for a declaratory judgment, while urging the validity of the will, plaintiffs alternatively ask that in the event it is declared void, that petitioners have been damaged by the professional error of Mr. Obier and 'are entitled to reparation from his heirs, or his heirs and surviving law partner, Mr. W. B. Middleton, Jr.' Joined as defendants to this alternative demand were the heirs of Mr. Obier, Mr. Middleton, and St. Paul Fire & Marine Insurance Co. (St. Paul), the professional liability insurer of the law firm of Obier and Middleton.

A second suit for declaratory judgment was filed by the remaining legatees seeking identical relief as those plaintiffs named in the first and amending petitions.

The trial judge granted judgment in favor of the plaintiffs and ordered the will executed according to its terms. The defendants, certain legal heirs appealed, and we reversed. See Succession of Killingsworth, La.App., 194 So.2d 331, writs refused, 250 La. 175, 194 So.2d 738 (1967).

Shortly thereafter, third party claims were filed by the heirs of Mr. Obier, Mr. Middleton and St. Paul against the legal heirs of Mrs . Killingsworth. While they reasserted the validity of the will, they sought judgment against the heirs of the decedent for any sums that might be cast against them in favor of the legatees. Said third party plaintiffs contend that 'it would be manifestly unjust and would amount to unjust enrichment to permit third party defendants to retain, unencumbered, inheritances which, except for the alleged error by Mr. Obier, they would never have received.'

On remand, the trial judge held that the will had not been typed by Mr. Obier and declared it to be invalid; that the former law firm of Obier and Middleton was responsible to the legatees named by the decedent for their failure to receive the intended bequests; that St . Paul had insurance covering the law firm, its members, and the heirs of Mr. Obier, and was, therefore, responsible under the terms and limits of its policy. The loss to eight of the legatees was fixed in specific amounts aggregating $45,606.05. Judgment was further rendered in their favor, decreeing defendant, W. B. Middleton and St. Paul liable, in solido, for one-half and the heirs of W. P. Obier and St. Paul liable, in solido, for the remaining one-half, together with legal interest at the rate of five percent per annum from date of judicial demand, until paid. The third party demands of the heirs of Obier, Middleton and St. Paul were rejected. The purported testamentary executor was reserved the right to claim custodial fees for itself and compensation for its attorney.

From the above judgment, the heirs of Obier, Middleton and St. Paul appealed suspensively. Certain legatees appealed suspensively, and other legatees appealed devolutiely. There were also two answers to the appeals of heirs of Obier, Middleton and St. Paul, the merits of which we shall discuss later.

The issues thus presented are:

(1) Is the will valid?

If invalid:

(2) What are the rights of the legatees?

(3) What is the liability of

(a) the heirs of W. P. Obier, the officiating notary,

(b) W. B. Middleton, Jr., the notary's surviving law partner, and

(c) St. Paul, the professional liability insurer of the law firm of Obier and Middleton?

(4) How and in what amounts are damages to be assessed?

(5) Are third party plaintiffs entitled to recover against the legal heirs of the decedent on the grounds of unjust enrichment?

We shall discuss these issues in the order mentioned.

VALIDITY OF THE WILL

First, it should be noted that some of the legatees are also legal heirs of the decedent. If the will is valid, they would receive bequests in excess of any sums they would be entitled to receive under an intestate distribution of the assets of the estate. Also, not all legal heirs were named in the will. Of course, the defendants urge its validity. Therefore, for the purpose of discussing the validity of the will, we shall refer to those parties urging its validity as proponents and those attacking its validity as opponents.

The nuncupative will be public act is in fact a notarial instrument which is self-proving. It is the most formal of all wills, imposing seven special requirements. C.C. Articles 1578, 1579, and 1580. 36 Tul.L.Rev. 1. The proponents first submit the well settled principle of law that its contents are presumed true until disproved. Renfrow v. McCain, 185 La. 135, 168 So 753 (1936), including the strong presumption that the formalities required are satisfied where the document itself evidences the same. Bernard v. Francez, 166 La. 487, 117 So. 565 (1928).

Their first defense against the attack on the will is that parol evidence is not admissible by parties to the instrument (witnesses) to contradict their previously announced solemn declarations. Bernard v. Francez, supra, Succession of Beattie, 163 La. 831, 112 So. 802 (1927), and Talton v. Todd, 233 La. 146, 96 So.2d 327 (1957) .

In Bernard, the will was sought to be voided on the testimony of two of the attesting witnesses. The court stated: (117 So. 565, 567)

'The testimony of the two witnesses is so confusing and their recollection is so hazy, indefinite, and uncertain that a court would not be justified in setting aside the will in question, even if there was no evidence to the contrary.

The rule of jurisprudence is that, to set aside a will of this character, the proof of noncompliance with the essentials as recited in the notarial act must be peculiarly strong to overcome the presumption in favor of the will, and the testimony of the witnesses themselves who have given their solemn attestation to the compliance of the required formalities is entitled to little weight.

This court said in Succession of Beattie, 163 La. 831, 112 So. (802,) 805:

"Testimony of subscribing witnesses which is adduced on the contest of the will and which, in effect, impeaches the solemn statements contained in the instrument which by their signatures they have attested as correct, is not in itself sufficient to overcome the presumption of validity arising from their presence and signatures and the official certificate of a public officer fortified by his oath.

"Their testimony must be corroborated by independent facts or reasonable inferences.'

'See, also, Major v. Esneault, 7 La.Ann. (51,) 52; Succession of Young, 11 La.Ann. 65; Starrs v. Mason, 32 La.Ann. (8,) 9; Succession of Cauvien, 46 La.Ann. 1412, (16 So. 309).

'Counsel criticize the doctrine announced in the Beattie Case as being without precedent, and they declare that such a principle is fraught with latent dangers of fraud on the rights of a testator to dispose of his property. But there would be room for greater fraud on the right of the testator to dispose of his property and on the rights of the legatees if the principle contended for by counsel should be recognized--that is, to permit subscribing witnesses to deny their own solemn act and to break down the solemn authentic act of a sworn officer.

'As said in the Beattie Case:

"Otherwise * * * testators would be at the mercy of defective memories and uncertain minds, to say nothing of venal callousness that for a...