Succession of Mangle

• Citation: 452 So.2d 197
• Decision Date: 16 May 1984
• Docket Number: No. 83-606,83-606
• Parties: SUCCESSION OF Mateal Rhodes MANGLE. Patricia Mangle SANDERS, Executrix, Plaintiff-Appellee, v. Louise RHODES, Defendant-Appellant.
• Court: Court of Appeal of Louisiana (US)

Page 197

452 So.2d 197

SUCCESSION OF Mateal Rhodes MANGLE.

Patricia Mangle SANDERS, Executrix, Plaintiff-Appellee, v. Louise RHODES, Defendant-Appellant.

No. 83-606.

Court of Appeal of Louisiana,

Third Circuit.

May 16, 1984.

C.O. Brown, Alexandria, for defendant-appellant.

Thomas W. Robinson, Jr., Alexandria, for plaintiff-appellee.

Before DOMENGEAUX, GUIDRY, and DOUCET, JJ.

DOMENGEAUX, Judge.

Mateal Rhodes Mangle died testate on June 14, 1978. The statutory will appointed Henry Rhodes, Jr. as testamentary executor, and dispensed with the necessity of his posting bond. (During the pendency of the district court proceedings, Henry Rhodes, Jr. died and his widow, Louise Rhodes, was substituted as party-defendant.) Henry Rhodes, Jr. and Katie J. Moore, the deceased's nephew and niece, were named as legatees to decedent's property. However, Mateal Rhodes Mangle was predeceased by an adopted son, Aubry Henderson Mangle, who was the sole heir of decedent. He was survived by his two daughters, Audrey C. Mangle and Patricia Mangle Sanders (granddaughters of decedent herein). In this succession proceeding, Audrey and Patricia represent their father, sole heir of the decedent. La.C.C. Arts. 881, 882, and 883. In ex parte proceedings, the testament was admitted to probate. Patricia Mangle Sanders and Audrey C. Mangle filed a petition alleging that the will did not comply with the statutory requirements and therefore asked for it to be recalled due to want of form. Petitioners also alleged, in the alternative, that the mortis causa donation exceeded the disposable portion of decedent's estate and therefore impinged upon their legitime. ¹ Petitioners sought a reduction of the donation. La.C.C. Arts. 1502 and 1504. Petitioners further requested the removal of Henry Rhodes, Jr. as testamentary executor and the qualification of Patricia Mangle Sanders as dative testamentary executrix.

On July 18, 1979, the trial court ordered the removal of Henry Rhodes, Jr. as testamentary executor and further ordered the complete accounting and return of all assets of the succession, as well as all the records, receipts, bank statements and other documents. The trial judge then ordered the appointment of Patricia Mangle Sanders as dative testamentary executrix. The trial court further ordered the removal of the succession attorney, C.O. Brown.

On August 18, 1981, the executrix, Patricia Mangle Sanders, filed a petition making an application to sell real estate in the administration of the succession at a private sale. A hearing was held on a rule to show cause and the trial court determined that the application for private sale by the executrix to sell decedent's immovable property was proper and ordered a homologation. On January 20, 1982, the trial court dismissed the opposition to the petition for private sale which had been filed by Katie J. Moore, one of the legatees. The legatees (Katie J. Moore and the heirs of Henry Rhodes, Jr.) also filed an exception of lis pendens, alleging that the judgment ordering the homologation of the private sale had been suspensively appealed in forma pauperis. The trial judge withdrew that order and ordered the suspensive appeal dismissed, based upon La.C.C.P. Article 5185 which provides in pertinent part:

"When an order of court permits a party to litigate without the payment of costs, until this order is rescinded * * * * he is not entitled to a suspensive appeal, or to an order or judgment required by law to be conditioned on his furnishing security other than for costs, unless he furnishes the necessary security therefor." ²

The executrix, Patricia Mangle Sanders, then filed a petition for homologation of application to sell decedent's immovable property at a private sale. Audrey C. Mangle (one of the forced heirs and the executrix's sister) had offered to purchase the property for $5,000.00 cash. The application was approved and the private sale was ordered. However, the executrix was unable to comply with the court-authorized sale because the attorney for the legatees recorded the notice of lis pendens which effectively constituted an encumbrance on the property and prevented the conveyance of the immovable property with a clear title.

On May 19, 1983, pursuant to a hearing on a rule to show cause, the trial judge ordered the cancellation of the lis pendens notice recorded in the Conveyance and Mortgage books of Rapides Parish. The trial judge further assessed all costs of the proceedings against the defendants, Katie J. Moore and Louise Rhodes (widow of Henry Rhodes, Jr. and substituted party-defendant).

Louise Rhodes was permitted to devolutively appeal in forma pauperis. ³

ISSUES

Appellant alleges (1) that the trial judge erred in removing Henry Rhodes, Jr. as executor; (2) that the trial judge erred in removing the original succession attorney; (3) that the trial judge erred in authorizing the private sale of decedent's immovable property; and (4) that the trial judge erred in appointing the executrix without requiring bond.

REMOVAL OF EXECUTOR

A succession representative is a fiduciary relationship. La.C.C.P. Article 3191. An executor owes a duty to legatees, creditors, and heirs. Succession of Rosenthal, 369 So.2d 166 (La.App. 4th Cir.1979), writ denied, 371 So.2d 1345 (La.1979); Succession of Anderson, 323 So.2d 827 (La.App. 4th Cir.1975). Fiduciaries may not place their own interests before the succession interest. Succession of Demarest, 418 So.2d 1368 (La.App. 4th Cir.1982), writ denied, 422 So.2d 158 (La.1982).

Certain allegations of mismanagement and breach of fiduciary duty surfaced at the hearing pursuant to a rule filed to remove the testamentary executor. The two forced heirs, Patricia Mangle Sanders and Audrey C. Mangle, claimed that Henry Rhodes, Jr. was disposing of decedent's property without court approval. During this period of time the heirs protested the executor's actions. The trial judge found that the heirs presented evidence of improprieties and possible conflict of interest, i.e., the executor was also named in the will as legatee under universal title. La.C.C. Art. 1612. "While a mere conflict of interest in itself does not warrant removal, when this conflict becomes such that it is actively tainting the administration of the succession, removal of the executor becomes necessary." Succession of Demarest, supra.

In Succession of Houssiere, 247 La. 764, 174 So.2d 521 (1965), the Supreme Court enunciated the character and standard of the fiduciary capacity:

"We do not subscribe to the view ... that cases of removal for alleged mismangement by fiduciaries should be decided on the ascertainment of legislative policy. Rather, we think the issue should be adjudged on whether the act or acts complained of constitute a mismanagement of the estate."

174 So.2d at 524.

Further, it should be noted that an executor owes a duty to the forced heirs. We conclude that when an executor knows or has strong reasons to believe that there are persons with claims as forced heirs whose legitime is impinged by bequests in the will, he has a duty to make a diligent effort to learn the identity of and inform such persons of the death of the decedent and their possible claims. Succession of Hearn, 412 So.2d 692 (La.App. 2nd Cir.1982), writ denied, 415 So.2d 215 (La.1982). See West v. Gajdzik, 425 So.2d 263 (La.App. 3rd Cir.1982), writ denied, 428 So.2d 475 (La.1983).

In the instant case, the record is clear that Henry Rhodes, Jr. knew that there existed two persons who were descendants of decedent's adopted only child and forced heir. The record reveals that Henry Rhodes, Jr. acknowledged the existence of Patricia Mangle Sanders and Audrey C. Mangle in the affidavit filed to probate Mateal Rhodes Mangle's statutory will. Despite this acknowledgment, Henry Rhodes, Jr. made no attempt to contact the forced heirs concerning their entitlement to the forced portion or notify them of their grandmother's estate. By conducting himself as he did, the executor breached the duty he owed to the forced heirs.

We have determined by applying the stated law to the facts presented here that the fiduciary standard was not met. We agree with the trial judge's conclusion that the executor breached his fiduciary duty and must be removed. La.C.C.Art. 3182. ⁴

REMOVAL OF SUCCESSION ATTORNEY

C.O. Brown was named as succession attorney in the decedent's last will and testament. It is definitive that under our existing jurisprudence, a testatrix has the right to designate in her last will and testament an attorney to represent her succession; that designation is valid and binding upon the executor, legatees, and heirs. Succession of Boyenga, 424 So.2d 414 (La.App. 2nd Cir.1982), writ granted, 430 So.2d 81 (La.1983), citing Rivet v. Battistella, 167 La. 766, 120 So. 289 (1929). The right of the attorney named in the will to represent the succession and to be paid therefor must be recognized. Succession of Martin, 56 So.2d 176 (La.App.Orl.1952). The executor is powerless to deprive the attorney of his right to act as legal advisor to the succession without just cause. Succession of Falgout, 279 So.2d 679 (La.1973); Succession of Rembert, 199 La. 743, 7 So.2d 40 (1942); Succession of Boyenga, supra.

The court in Boyenga traced the jurisprudential application and clarified this principle:

"... we believe the views herein originally expressed clearly indicate our recognition and affirmation of the firmly settled principle that an attorney named by a testator to represent the testator's executor or heirs enjoys an 'irrevocable status' in that as an agent of the testator so designated in the testator's will he may not be discharged from the mandate thusly conferred. We further believe that our initial remarks made it abundantly clear that such an appointment involved the duty, privilege and obligation to represent the executor and heirs of the testator until the testator's estate is settled and the...