Succession of Simms

• Decision Date: 08 November 1965
• Docket Number: 47713,47707,Nos. 47706,47712,s. 47706
• Citation: 250 La. 177,195 So.2d 114
• Parties: Succession of Lillie Weir SIMMS, widow of Edward F. Simms.
• Court: Louisiana Supreme Court

Page 114

195 So.2d 114

250 La. 177

Succession of Lillie Weir SIMMS, widow of Edward F. Simms.

Nos. 47706, 47707, 47712, 47713.

Supreme Court of Louisiana.

Nov. 8, 1965.

On Rehearing Nov. 7, 1966.

Second Rehearing Denied Feb. 20, 1967.

Eugene D. Saunders, Lawrence K. Benson, Guy C. Lyman, Jr., Milling, Saal, Saunders, Benson & Woodward, Leonard Oppenheim, H. Alva Brumfield, New Orleans, Sylvia Roberts, Baton Rouge, Decatur J. Holcombe, Houston, Tex., Chester A. Eggleston, New Orleans, for applicants.

Jack P. F. Gremillion, Atty. Gen., for amicus curiae.

Sidney Wright, Cobb & Wright, Morris Wright, Joseph V. Ferguson II, Wood Brown, Montgomery, Barnett, Brown & Read, John L. Toler, E. Harold Saer, Jr., Chaffe, McCall, Phillips, Burke, Toler & Hopkins, Sumter D. Marks, Jr., Louis B. Claverie, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for respondents.

HAMITER, Justice.

Mrs. Elizabeth Franzheim Reese instituted this action in which she attacks the last will and testament of her late grandmother, Mrs. Lillie Weir Simms. According to her petition, filed in the sucession proceedings of the testatrix, plaintiff attempts to (1) annul certain trust provisions contained in the will, (2) nullify the will's probate insofar as the trust provisions are concerned, and (3) cancel the district court's judgment which sent into possession the various persons named in such provisions.

All whose interests would be affected by the attack were made defendants, namely, the beneficiaries of the trusts, the trustees, the testamentary executors, and plaintiff's brother and sister.

The district court rendered judgment in favor of plaintiff, as prayed for. Various defendants then appealed to the Court of Appeal, Fourth Circuit, where the judgment was affirmed. 175 So.2d 113. (As pointed out in a footnote in the Court of Appeal opinion, 'The last testament of Mrs. Lilly Weir Simms provides that if any legatee or devisee contests it or by legal procedure interferes with the handling of the estate, then that legatee or devisee shall take nothing under her will or out of her estate. For this reason, Kenneth Franzheim, II, has appealed only in his capacity as executor and trustee, and not individually. For the same reason Mrs. Lilly Franzheim McCullar has appealed only in her capacity as provisional administratrix.')

The litigation is presently before us on writs of certiorari granted on the separate applications of some of the defendants. 175 So.2d 111--112.

The case was tried in the district court on a stipulation of facts and on certain pertinent exhibits. According to the record the testatrix (plaintiff's grandmother), whose domicile was in Texas, died on May 1, 1957. She was survived by only one child, Mrs. Bessie Simms Franzheim, who was the mother of this plaintiff and of Kenneth Franzheim, II and Lillie Franzheim McCullar, the latter two being among the defendants herein. In her will Mrs. Simms bequeathed to her daughter one-third of her Louisiana property. The remaining two- thirds she left in trust for the benefit of Kenneth Franzheim, II, Lillie Franzheim McCullar, and various great grand-children. Among the latter were plaintiff's three minor children who are also defendants in this action. These trust bequests are the ones assailed in this proceeding. (The controversial provisions of the testament are quoted in full in the opinion of the Court of Appeal. Because of the conclusion we have reached with regard to plaintiff's right to proceed in this action, as hereinafter discussed, we deem it unnecessary to detail them in this opinion.)

Mrs. Simms' succession was opened in Texas, her domicile. In the proceedings there the will was probated and the testamentary executors confirmed. These executors later commenced ancillary probate proceedings in the district court for Plaquemines Parish, Louisiana, and therein sought to have the testament made executory with respect to the Louisiana property affected thereby. On the joint petition of such executors and of Mrs. Franzheim, individually, a judgment was rendered on July 21, 1958, sending the legatees (including the trustees) under the will into possession of the Louisiana estate.

On December 15, 1959, Mrs. Bessie Simms Franzheim, who also was domiciled in Texas, died, she being survived by the three above named children, including this plaintiff. She left a will in which she bequeathed to her son (Kenneth Franzheim, II) and to one of the two daughters (Mrs. Lillie Franzheim McCullar) certain specified property located in Louisiana; and, after a number of particular bequests, she designated those two children as her residuary legatees. Her said son, and W. P. Hamblen and Alden K. Boddeker were named executors. The plaintiff was not mentioned in Mrs. Franzheim's will.

Thereafter, plaintiff filed a suit in Texas attacking the validity of her mother's will. Later, with respect to that testament, ancillary probate proceedings were commenced in Louisiana on the petition of Mrs. McCullar, a resident of this state; and therein she was appointed provisional administratrix of her mother's estate inasmuch as the testamentary executors could not act until their right to do so under the will had been established in the Texas litigation. (In this connection plaintiff, in her brief to this court, notes '* * * Mrs. Franzheim left a will, the validity of which was litigated in Texas, and during the pendency of these proceedings (the instant litigation) its validity was upheld in Texas. Thereafter, it was probated in ancillary proceedings in Plaquemines Parish, as will appear from the substitution of the Testamentary Executors named therein for the Provisional Administratrix in the Succession of Franzheim by order in the Court of Appeal dated December 23, 1964. * * *') Also see Reese v. Franzheim, Tex.Civ.App., 381 S.W.2d 329.

Pending the attack on her mother's will in the Texas courts, the plaintiff, on November 27, 1961, filed the instant action in her grandmother's ancillary succession proceeding, she seeking (as we have said) to set aside the trust bequests in the will of Mrs. Simms, the will's probate and the judgment sending the several legatees (including the trustees) into possession. In this action plaintiff contends that the assailed trust provisions constituted prohibited substitutions under the laws of Louisiana, and, consequently, they and the judgment purporting to perpetuate them were null and void and of no effect with respect to the Louisiana properties, the result being that her grandmother died intestate as to those bequests so that such properties were inherited by the testatrix' sole forced heir (plaintiff's mother) and should now properly form a part of her mother's succession.

Mrs. Simms' testamentary executors have filed in this court an exception of no right of action in which there is alleged a want of interest in the plaintiff, the exceptors pointing out that she is a stranger to the estate of her grandmother for the reason that she was not an heir of Mrs. Simms and that she acquired no seizin in the succession of her mother, Mrs. Franzheim. (We note that this exception was not filed on behalf of all of the defendant litigants. But we consider this of no importance inasmuch as the failure of right or interest in a plaintiff to institute suit may be noticed by this court of its own motion. Code of Civil Procedure Article 927.)

In the pertient portions of the brief of plaintiff, where she asserts the basis of her right to proceed in the instant litigation, she contends: '* * * It is not contended by Mrs. Reese that she is the heir of her grandmother. She is the heir of her mother and as such, asserts the same right which her mother had to establish the absolute nullity of the disputed dispositions of Mrs. Simms' will. This is manifest from Articles 944 and 945 of the Civil Code. The heir being considered as having succeeded to the deceased from the instant of his death, the * * * effect of this right is to authorize the heir to institute all the actions, even possessory ones, which the deceased had a right to institute and to prosecute those already commenced, for the heir in everything represents the deceased and has a full right in his place as well for his rights as his obligations. * * * ' In support of this contention plaintiff relies primarily on Hoggatt v. Gibbs, 12 La.Ann. 770 and Gahn v. Brown et al., 160 La. 790, 107 So. 576, and on Articles 940--945 and 1607 of the Louisiana Revised Civil Code.

At the outset we hold that the cited decisions are not authority for such contention. In the Hoggatt case the right or interest of the plaintiff does not appear to have been questioned and is not mentioned in the opinion; nor did the court in any manner consider an issue respecting his seizin. Likewise, in the Gahn case, the right of the plaintiff to proceed was not mentioned. Moreover, he was The forced heir of his deceased grandfather, the latter having died After the plaintiff's mother. Consequently, plaintiff had every right, As a forced heir of his grandfather, to sue to reduce a donation which impinged on his legitime.

Under Article 941 of the Louisiana Revised Civil Code the right of seizin given to the heir by Article 940 is by operation of law alone. Under Article 942 he is 'considered' seized of the possession of the succession. Article 945 authorizes such heir with seizin to institute all the actions which the decedent had a right to institute. And Article 1607 provides that forced heirs are seized of right at the death of the testator. However, Article 1659 authorizes the testator to 'give his testamentary executor the seizin of the whole of his succession * * *.' Therefore, in cases where the testator leaves forced heirs and has given seizin to his testamentary executor there obviously is (under the codal articles) a conflict between such heirs and the executor insofar as the benefits arising out of the right of seizin are...