Succession of Norton

• Decision Date: 10 October 1977
• Docket Number: Nos. 59626,59693,s. 59626
• Parties: Succession of Annie M. NORTON.
• Court: Louisiana Supreme Court

Page 107

351 So.2d 107

Succession of Annie M. NORTON.

Nos. 59626, 59693.

Supreme Court of Louisiana.

Oct. 10, 1977.

Sidney E. Cook, Cook, Clark, Egan, Yancey & King, Shreveport, for defendant-applicant.

John R. Pleasant, Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for plaintiff-respondent.

CALOGERO, Justice.

In connection with this succession proceeding, relators sought to depose an attorney and member of the law firm which had over the years represented the testatrix, Annie Norton, her husband Richard W. Norton, Sr. and her son Richard W. Norton, Jr. Relators also sought to subpoena the law firm's records which related to the Nortons' financial affairs and estate planning. The trial court sustained the motion to quash the subpoena duces tecum and denied relators the right to depose the attorney. After applications for supervisory writs in the Court of Appeal were denied, we granted writs sought by relators. 345 So.2d 55 (1977).

Richard W. Norton, Sr. died in 1940. He was survived by his widow, Annie Norton, and their sole child, Richard W. Norton, Jr. In 1950 Annie Norton confected and executed the will which is at issue in these succession proceedings. Pertinent to the legal issues here involved, Mrs. Norton made no bequests of any substance¹ in favor of her son, Richard, Jr., nor her son's children, Richard W. Norton, III and Maxwell L. Norton (for they were born after execution of the will). She made bequests, mostly lifetime monthly annuities, to numerous persons, principally to collateral relations, referred to in these proceedings as Rosalie Norton Roberts et al. The great bulk of her substantial estate was left to the R. W. Norton Art Foundation. Mrs. Norton designated Commercial National Bank in Shreveport testamentary executor and trustee for the art foundation. She also named as attorney to handle all legal matters in connection with her estate F. Leonard Hargrove (and alternately James A. Van Hook) of the law firm Hargrove, Guyton, Ramey and Barlow. A significant provision of the will directed the testamentary executor to pay all estate, inheritance, legacy, succession or transfer taxes.²

Richard W. Norton, Jr. died in 1974. His mother, Annie Norton, died in 1975.

Mr. Hargrove and his law firm had over the years represented Richard Norton, Sr., Annie Norton, Richard Norton, Jr., the R. W. Norton Art Foundation and, at least for a brief time, Richard Norton, Jr.'s two children, Richard W. Norton, III and Maxwell Norton.

Mr. Hargrove and his wife were named in Annie Norton's will as legatees to annuities comparable to similar annuities to the collaterals. He and his wife renounced this bequest, however, and thereafter he and his law firm chose to represent neither the testamentary executor, the Norton grandchildren nor any party in this litigation.

After Annie Norton's olographic will was admitted to probate, suit was instituted by her two grandchildren who asserted their rights as forced heirs to the legitime, or one-third of their grandmother's estate.

They contend that the legitime had been denied their father, that they should receive same from their grandmother's estate by representation of their father (La.Civ.C. art. 1493, 895) and that receipt thereof should be free and clear of estate and other taxes and expenses due by the succession of their grandmother (the latter apparently by virtue of the provisions of the will quoted in footnote two above).

A detailed descriptive list of property comprising the estate of the deceased was filed in the succession proceedings showing an estate net value of $6,787,407.17. Cost to the estate of the individual bequests to the collaterals is estimated to be approximately $500,000.

In response to the grandchildren's petition to reduce dispositions made in the last will and testament, that pleading by which the grandchildren seek to assert their right to the legitime, the executor (and collaterals) filed an answer in which they contend that the legitime reserved to petitioners by representation of their father, Richard, Jr. had been satisfied by the donations inter vivos made to their father during his lifetime. The executor alternatively alleged that should petitioners be entitled to any additional sums in satisfaction of their legitime interests, that all state and federal estate, inheritance or other taxes attributable to that legitime interest should be borne and paid solely by the grandchildren.

The executor and collaterals contend that confection of the last will and testament of Annie Norton was but one step in an overall estate plan fashioned for devolution of the substantial estate amassed by Richard Norton, Sr. and Annie Norton, implemented with the assistance of F. Leonard Hargrove, the senior partner (now deceased) of Hargrove, Guyton, Ramey and Barlow and that adequate provision was made to satisfy the legitime of Richard Norton, Jr. It is further contended that provision to that effect had been made, so that the clear dispositive provisions of Annie Norton's will could and would be effective.³

Consistent with this position, desirous of proving that Richard, Jr. had enjoyed his legitime by inter vivos donations, and having no access to files and/or counsel of testatrix' attorney (inasmuch as F. Leonard Hargrove, and his law firm, although designated attorney for the succession, had chosen not to represent the executor) the executor with the collaterals joining them, filed and had served the subpoena duces tecum directed to the Hargrove firm, thru Cecil E. Ramey, Jr., and noticed the taking of Mr. Ramey's deposition.

The subpoena duces tecum in fifteen explicit paragraphs called for production from files of the Hargrove firm of all correspondence, memoranda, notes, records, reports (including estate plans) to and/or from Richard Norton, Sr., Annie Norton, Richard Norton, Jr., members of the law firm and/or any certified public accountant firm, concerning the estates, trusts and/or wills of Richard, Sr., Annie and Richard, Jr., and all inter vivos or testamentary dispositions of Richard, Sr., Annie and/or Richard, Jr. The subpoena duces tecum also called for any personal memoranda, records, notes or correspondence relating to the physical or mental condition of Annie M. Norton subsequent to November 29, 1950, the date her will was executed. The substance of the noticed oral deposition of Mr. Ramey was evident from the nature of the subpoena duces tecum.

In response to the subpoena duces tecum and notice of deposition, the grandchildren filed a motion to suppress the subpoena and for a protective order.

The grandchildren urged in support of their pleadings that discovery under Article 1422 of the Code of Civil Procedure is only available "regarding any matter not privileged which is relevant to the subject matter involved in the pending matter;" that the data requested was irrelevant to the claim filed by the grandchildren; that Annie Norton's physical and/or mental condition subsequent to the date of her will was wholly irrelevant; that the data would not and could not change the provisions of the will of Annie Norton nor the Louisiana law fixing rights of forced heirs; that mover's attorneys had already been furnished copies of all donations inter vivos made by the decedent, Annie Norton, from 1935 to the date of her death; that data relative to the estate of Richard Norton, Sr. and Richard Norton, Jr. were irrelevant; that as to the succession of Richard Norton, Jr., the Commercial National Bank of Shreveport was executor and trustee of a trust established by Richard Norton, Jr. and therefore had all information regarding that estate; that all documents requested represented privileged communications between attorney and client under Louisiana Civil Code Article 2283 and were not subject to subpoena by third parties; that movers were claiming this privilege as forced heirs of Annie Norton and as children and heirs of their father, Richard Norton, Jr., and also on behalf of their deceased grandfather, Richard Norton, Sr.

After presentation of arguments, the trial judge quashed the subpoena duces tecum and overruled the notice of intent to depose Mr. Ramey. It is this ruling of the trial court which we review herein.

Although the record herein does not reveal the trial court's reasons for the ruling, the pleadings and arguments of respondents suggest that the trial court determined that:

1) Annie Norton's physical and/or mental condition after execution of her will in 1940 was irrelevant;

2) the Hargrove law firm's documents and the attorney deposition relating to the estates, trusts, wills and estate planning of Richard Norton, Sr., Annie Norton and Richard Norton, Jr. (other than that relating to inter vivos donations of Annie Norton, as to which respondent contends he has already given information contained in tax returns) were irrelevant to the legal matters at issue in the litigation; and,

3) the documents and testimony sought represent privileged attorney/client communications not subject to discovery.

It is of course true that whether Richard, Jr.'s legitime had been satisfied...