Succession of Riggio
| Decision Date | 26 January 1981 |
| Docket Number | No. 13954,13954 |
| Citation | 395 So.2d 361 |
| Parties | Succession of Felix Anthony RIGGIO. |
| Court | Court of Appeal of Louisiana — District of US |
Iddo Pittman, Jr., Hammond, counsel for plaintiffs.
Timothy R. Higgins, Amite, counsel for defendants.
Before LOTTINGER, EDWARDS and PONDER, JJ.
Felix Anthony Riggio died on May 29, 1978. On April 6, 1979, one of Riggio's ten children, Anna Riggio Cannizzaro, alleging that Riggio had died intestate, petitioned to be appointed administratrix of the estate. Mrs. Cannizzaro complied with all the legal requisites and was confirmed as administratrix on that same day.
On June 13, 1979, the administratrix, together with eight of decedent's other nine children, filed a "petition for declaratory judgment and in the alternative for collation(.)" Peter Riggio, the tenth child, was named as defendant. It was alleged that in 1961, decedent, Felix Riggio, sold one and a quarter acres of land to one Edward H. Hayden and that the proceeds were given to Peter Riggio. It was further alleged that defendant had, in 1970, formally renounced all inheritance rights in the succession of his mother, Mary Christina Riggio, who had died in 1962. Petitioners prayed for a declaratory judgment that defendant had no further interest in the assets of his father's succession, his full share having already been received as a donation inter vivos. In the alternative, petitioners sought to make defendant collate the monies donated to him by decedent.
Defendant answered with a general denial. Then, as plaintiff in reconvention, defendant alleged that he possessed the last will and testament of decedent, dated March 31, 1976, and prayed for both the removal of Anna Cannizzaro as administratrix and probate of the purported will.
All issues were joined when the administratrix answered, claiming that the purported will was invalid both because decedent lacked testamentary capacity and because certain provisions of the will were ambiguous.
Following trial, judgment was signed decreeing that:
4) collation was not before the court, and
5) a proper petition for probate of the will must be filed.
Anna Cannizzaro and her eight fellow plaintiffs appeal. We reverse in part.
Regardless of either the existence or validity of decedent's purported last will and testament, the original appointment of Mrs. Cannizzaro was not premature. Over a year passed between the demise of Felix Riggio and the application of his daughter to be administratrix. No petition for notice of application for appointment had been filed. LSA-C.C.P. Art. 3091. Nobody else had applied to be administrator. Nor was there any opposition to plaintiff's appointment. The original appointment of Mrs. Cannizzaro was, therefore, quite proper.
Peter Riggio's introduction of decedent's alleged last will raises the issue of whether Mrs. Cannizzaro should be maintained as administratrix since the purported will names Peter Riggio as succession representative. 1
An administrator may be removed for various reasons and offenses. LSA-C.C.P. Art. 3182. Succession of Voland, 296 So.2d 406 (La.App. 4th Cir. 1974), writ refused 300 So.2d 184 (La.1974). One basis for removal is that the succession representative "is or has become disqualified(.)" Mrs. Cannizzaro has, in no way, caused herself to be disqualified.
Nevertheless, the discovery of a will is cause to reopen a succession after a succession representative has been discharged or after acceptance by the heirs or rendition of a judgment of possession, provided the will is presented by petition within five years of the succession's judicial opening. LSA-C.C.P. Arts. 3393, 2893. Succession of McLendon, 383 So.2d 55 (La.App. 2nd Cir. 1980). Similarly, while no article in the Code of Civil Procedure specifically deals with the situation presented here, the timely discovery and probate of a valid will naming an executor is cause to replace an administrator, duly appointed under the mistaken belief that the decedent died intestate.
Although defendant took no part in, nor did he oppose, the administration of Anna Cannizzaro, 2 he is nevertheless entitled, after the appropriate proceedings, to have her replaced as succession representative. 3
Holding that since the purported last will of decedent had not been properly probated and that another hearing was required, the trial court ordered that a petition for probate be filed. 4 The trial judge also ruled on the challenged will's validity insofar as he found that plaintiffs had not proven a lack of testamentary capacity in the decedent.
Testamentary capacity is always presumed until the contrary is affirmatively established by satisfactory and convincing evidence. Succession of Bush, 292 So.2d 915 (La.App. 1st Cir. 1974), writ denied 294 So.2d 837 (La.1974); Succession of Schmidt, 219 La. 675, 53 So.2d 834 (1951). Capacity is tested as of the time the will was made. LSA-C.C. Art. 1472; Stewart v. Branch, 250 So.2d 474 (La.App. 1st Cir. 1971), writ denied 259 La. 905, 253 So.2d 224 (1971), and the burden of proving lack of capacity rests on the party alleging it. Woods v. Society for Propagation of Faith, 251 So.2d 438 (La.App. 1st Cir. 1971), writ denied 259 La. 897, 253 So.2d 221 (1971). The degree of proof required to overcome the presumption of testamentary capacity is similar to that required to overcome the presumption of innocence in favor of a person being tried for a crime. Succession of Collins v. Hebert, 377 So.2d 516 (La.App. 3rd Cir. 1979), writ denied 379 So.2d 15 (La.1980); Succession of Brown, 251 So.2d 465 (La.App. 1st Cir. 1971).
A careful review of the entire record convinces us that plaintiffs failed to prove that on March 31, 1976, the date on which decedent made his last will, Felix Riggio did not possess testamentary capacity.
On March 31, 1976, the same day as the challenged will was made, Dr. J. DeLoach Thames, decedent's treating physician, certified that Mr. Riggio was "now totally unable to care for himself and is physically and mentally incapable of giving a deposition or testifying....." The certificate was honored and decedent's scheduled deposition in a matter closely related to the present one, Succession of Riggio, Docket No. 12,514 (La.App. 1st Cir. 1980), was cancelled.
Dr. Thames testified to the accuracy of his March 31, 1976, opinion and stated that while decedent was sometimes able to recognize him (Dr. Thames) after being informed of his (Dr. Thames') identity, decedent was not capable of making a last will and testament on the date in question.
Mrs. Cannizzaro's testimony supported that of Dr. Thames.
Despite the testimony of Dr. Thames and Mrs. Cannizzaro, and despite the failure of defendant to testify, it is evident that plaintiffs have not carried their burden of proof.
In Succession of Riggio, supra, decedent was relieved of the burden of being deposed. Nevertheless, on March 22, 1978, the same attorney who had earlier prevented the taking of Mr. Riggio's deposition, chose to take his deposition. That deposition, taken two years after decedent had been certified unable to be deposed and only sixty-nine days prior to his death, is most revealing. Felix Riggio, while obviously frail and beset by numerous ailments, many connected with his advanced age of eighty-nine years, was lucid beyond a doubt. He recalled and recounted, in detail, financial matters associated with his son, Peter, which had occurred over many years. 5 Mr. Riggio, though elderly and infirm, was obviously in possession of his faculties.
We have no doubt that not only have plaintiffs failed to prove that their father lacked...
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