Succession of Taglialavore

Decision Date05 June 1986
Docket NumberNo. CA-4654,CA-4654
Citation490 So.2d 538
PartiesSUCCESSION OF Georgina Blestel TAGLIALAVORE.
CourtCourt of Appeal of Louisiana — District of US

Henry Tutt Dart, New Orleans, for Alphonse L. Taglialavore, Jr., appellant.

Tillery & Tillery, Allen J. Tillery, Chalmette, for Gene J. Taglialavore and Jill J. Taglialavore, appellees.

Before REDMANN, C.J., and WILLIAMS and ARMSTRONG, JJ.

ARMSTRONG, Judge.

Appellant, Alphonse Taglialavore, is appealing judgments of the trial court dismissing his Opposition to Petition for Authority to Sell Immovable Property and dismissing his rules and oppositions to certain actions taken by the co-executors, the appellees herein. He is further appealing the trial court's Judgment of Homologation of Application to Sell Property at a Private Sale. Each of the aforementioned judgments was rendered in connection with the succession of Georgina Blestel Taglialavore, the mother of the parties herein.

The record reflects that the decedent died on March 27, 1982 leaving a will which named Gene and Jill Taglialavore as testamentary co-executors. On April 20, 1982, they were confirmed as co-executors and letters testamentary were issued to them.

The first issue concerns Gene's alleged offer to buy the heirs' undivided one-half interest in a piece of commercial property which he leases and occupies for his meat business. Appellant argues that 1) the record does not support the claim that Gene offered to buy the property 2) the appellees did not prove the necessity of the sale, 3) the property is worth more than the $60,000 Gene allegedly offered to pay and 4) the petition for authority to sell the property did not comply with the formal requisites of the law. The first two of these assertions are factual determinations based upon witness credibility. Such determinations are within the province of the trier of fact and, unless clearly erroneous, will not be disturbed on appeal. Tebbe v. Avegno, 435 So.2d 513 (La.App. 4th Cir.1983).

It is clear that sale of succession property may be made for any purpose, including partition of succession property. C.C.P. art. 3261; Succession of Lewis, 440 So.2d 899 (La.App. 2nd Cir.1983); Succession of Voland, 296 So.2d 406 (La.App. 4th Cir.1974). A succession representative has a legal and fiduciary obligation to secure the best price reasonably available as consideration for the conveyance of the succession property. C.C.P. art. 3191; Succession of Lawson, 408 So.2d 992 (La.App. 2nd Cir.1981). Actual value of a piece of property is the value at which the property could reasonably be expected to sell at the time of the proposed sale. Middle Tennessee Council, Inc. v. Ford, 274 So.2d 173 (La.1973). However, value is a question of fact which is best left to the discretion of the trial judge, particularly when opinions of experts are involved. This is a matter in which the trial judge is in a particularly advantageous position to determine since it is, in effect, a question of credibility. Succession of Lewis, supra, at 905. Moreover, the approval of an application to sell succession property at a private sale rests within the sound discretion of the trial court, provided of course, that there are good reasons for the sale and the sale is in the best interest of the succession. Succession of Shepherd, 454 So.2d 1265 (La.App. 2nd Cir.1984).

As for appellant's first three contentions, Gene did say he wanted the undivided property for $60,000. The appellees testified that they wanted to wrap-up the succession by dispersing or selling all of the property. Two appraisers testified as to the approximate value of the property and agreed that the $60,000.00 offered for the one-half interest was a fair price considering that the probability of an outside sale of such encumbered property was remote. We note that the appellant's objections were not to a proposed sale of the property itself, but were rather objections to the sale of the property to his brother and to the proposed selling price.

We find that adequate justification for the sale of the property was presented, and that the appellant failed to prove that the sale would not be in the best interest of the succession.

With regard to appellant's fourth contention that the Petition for Authority To Sell Immovable Property filed by the co-executors on September 18, 1984, did not comply with LSA-C.C.P. art. 3281, we disagree.

LSA-C.C.P. art. 3281 reads in part as follows:

A. A succession representative who desires to sell succession property at private sale shall file a petition setting forth a description of the property, the price and conditions of and the reasons for the proposed sale. If an agreement to sell has been executed in accordance with Paragraph B of this Article, a copy of such agreement shall be annexed to the petition.

B. A succession representative may execute, without prior court authority, an agreement to sell succession property at private sale, subject to the suspensive condition that the court approve the proposed sale.

A review of the disputed petition reveals that the property to be sold is described in great detail. The petition likewise states that:

... Gene J. Taglialavore has made an offer to purchase the undivided one-half ( 1/2) interest in and to the above described property owned by this succession for the price of SIXTY THOUSAND and no/100 ($60,000.00) Dollars, Cash. That the co-executors of this Succession believe that this is a fair and equitable price and that it is the best interest of this succession to sell its interest in the above described property to Gene J. Taglialavore for the price herein set forth."

The petition also makes clear that the succession owns only a partial interest in the property as a whole and that Gene J. Taglialavore, who already owns a one-tenth ( 1/10) interest in the property, occupies the property as a lessee and operates a business at the location. Testimony at the trial on the rule revealed that a formal written agreement to sell was never executed due to the continued objections of Alphonse L. Taglialavore and therefore could not be attached to the petition. Thus we find that the contents of the petition adequately comply with the requirements set forth in LSA-C.C.P. art. 3281.

Therefore the trial court's judgments dismissing of appellant's opposition to the petition for authority to sell immovable property and dismissing appellant's opposition to the homologation of the application to sell the property at a private sale are affirmed.

Appellant next argues that the descriptive list of assets was incomplete as it failed to include certain items of movable property: a diamond engagement ring, a diamond watch, a silver flatware service for twelve, an electric organ and a piano. At trial, the co-executors testified that each piece of disputed property was not part of the succession as decedent had prior to her death given the property to some of her children. Appellant argues that when there is a doubt as to ownership of the property, it should be included in the succession. This is a matter for the trier of fact.

The trial court found that these items did not constitute part of the decedent's personal or household effects and since no evidence was presented that the donated property might be claimed by the succession, we find no error in the dismissal of the appellant's Rule To Traverse Descriptive List of Assets. Succession of Danese, 459 So.2d 725 (La.App. 4th Cir.1984); Succession of Amos, 422 So.2d 605 (La.App. 3rd Cir.1982).

Appellant attacks the tableau of distribution on three grounds, to-wit: attorney's fees were not limited to 5% of the gross estate, one of the debts of the succession was actually a personal debt of one of the co-executors and the co-executors lacked proper authority to pay debts of the succession. With respect to the attorney's fees there appears to be a stipulation that before any fee would be paid to the present attorney for the succession, the amount would be submitted to the court for approval. Thus, this issue is moot.

As for the debt allegedly personal to Jill Taglialavore, the record contains a letter from the Social Security Administration seeking reimbursement from the succession for overpayments made to Jill from her father's social security account. Appellee apparently (there is nothing in the record about this) was working and receiving social security benefits in order to pay her way through school. Appellant argues that the payments, $4,121.30, are Jill's personal debt and not the debt of the succession. We agree.

The Social Security System is a form of social insurance whereby persons gainfully employed, and those who employ them, are taxed to permit the payment of benefits to the retired and disabled, and to their dependents. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). The payment of social security benefits are authorized by federal statute and flow from federal policy which is unrelated to state or local laws on marriage or inheritance. Davis v. Richardson, 342 F.Supp. 588 (D.Conn.1972). Old Age, Survivors, and Disability Insurance (OASDI) student benefits are paid to the children of an insured worker when the worker retires, becomes disabled, or dies. The benefits are paid directly to the student recipient as a beneficiary and are intended to help defray the expenses of those students attending educational institutions on a full-time basis. Miller v. Richardson, 320 F.Supp. 313 (S.D.W.Va.1970).

Although the OASDI benefits of Jill's father may have accrued as a result of social security taxes paid upon community resources, payments by the Social Security Administration paid directly to Jill Taglialavore as beneficiary of her father's Old Age, Survivors, and Disability Insurance represented neither a debt nor an asset of her mother's succession, nor did the overpayment of such funds represent a debt of the former community of her parents. We find that the...

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