Succession of Whitner

• Decision Date: 13 February 1928
• Docket Number: 28819
• Citation: 165 La. 769,116 So. 180
• Court: Louisiana Supreme Court
• Parties: Succession of WHITNER

116 So. 180

165 La. 769

Succession of WHITNER

No. 28819

Supreme Court of Louisiana

February 13, 1928

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; W. Carruth Jones, Judge.

Petition by Josephine Whitner Giles to probate the will of Margaret Whitner, deceased, opposed by Nelson Whitner and others. From a judgment rejecting petitioner's demand to have the will probated, petitioner appeals.

Amended and affirmed.

Sanders & Gottlieb and J. Oliver Bouanchaud, all of Baton Rouge, for appellant.

Taylor Porter, Loret & Brooks and Benton & Benton, all of Baton Rouge, for appellees.

O'NIELL C. J. OVERTON, J., recused.

OPINION

O'NIELL, C. J.

On the 12th of July, 1921, Margaret Whitner declared in a notarial act that she owed her daughter, Josephine Whitner Giles, $ 2,000, and gave her a promissory note for the amount, secured by mortgage on certain real estate in Baton Rouge, and, on the 8th of August, 1922, Margaret Whitner made a sale of the property to her daughter, Josephine; the consideration stated in the deed being $ 920 cash and the cancellation of the mortgage note for $ 2,000. In January, 1925, Josephine Giles sued to evict her brother, Richard Kelly, from a house on the premises, averring that she had allowed him to occupy it rent free. On the 3d of February, 1925, before Richard Kelly had answered the suit, Margaret Whitner died leaving in Josephine Giles' possession a will, dated the 1st of December, 1919, in which the testatrix bequeathed all of her property to Josephine Giles, as universal legatee, and appointed her executrix, without bond, and with seizin of the estate. The heirs of Margaret Whitner, besides Josephine Giles and Richard Kelly, were two sons, namely, Nelson and Joseph Whitner, and a grandson, George Young, the only child of Janie Whitner Young, deceased daughter of Margaret Whitner. After the death of Margaret Whitner, Richard Kelly answered the eviction suit, and set up a reconventional demand to annul the mortgage and sale to Josephine Giles, on the ground that no consideration, or at least an inadequate consideration, was given, and that the pretended sale was a donation in disguise, and he prayed that the deed should be declared null, and that he and the coheirs, whom we have named, should each be declared the owner of one-fifth of the property, and be sent into possession of it unconditionally and without the benefit of inventory. Kelly's two brothers and the nephew intervened in the suit and made the same demand which he had made.

Josephine Giles did not then produce the will of her mother, or offer it for probate, or amend her pleadings in the pending suit, so as to claim title under the will, in the event of her failing to maintain her title by deed.

The suit of Josephine Giles against Richard Kelly was tried on the issue tendered by his reconventional demand and the demands of the interveners, and resulted in a judgment in favor of Kelly and the interveners, annulling the act of mortgage and the sale made by Margaret Whitner to Josephine Giles, declaring each of the five parties to the suit to be the owner of a fifth interest in the property, ordering an inventory made for the purpose of effecting a partition, and reserving the right of Josephine Giles to sue for whatever claim she might have for the improvements made upon the property. She appealed to this court, and the judgment against her was affirmed by a decree rendered on the 29th of November, 1926. See Giles v. Kelly, 162 La. 512, 110 So. 738.

On the 4th of February, 1927, Josephine Giles produced the will of Margaret Whitner and filed it with her petition to have it probated. She prayed to have her brothers, Richard Kelly and Nelson and Joseph Whitner, and the nephew, George Young, notified of the time fixed for the probate of the will: and it was so ordered.

Richard Kelly and Nelson and Joseph Whitner and George Young opposed the probate of the will on the following grounds, viz.:

(1) That by Josephine Giles' failure to produce the will and have it probated, and to assert title under it as an alternative defense to the reconventional demand of the defendant, Richard Kelly, and to the demands of the interveners in the previous suit, she was forever estopped and forbidden to claim title under the will; and that the judgment rendered by the district court and affirmed by the Supreme Court in the previous suit, declaring each of the five heirs of the deceased Margaret Whitner to be the owner of a fifth interest in the property in contest in that suit, and sending the five heirs into possession of the property unconditionally, was res judicata.

(2) That, according to article 1695 of the Civil Code, the sale made by Margaret Whitner to Josephine Giles on the 8th of August, 1922, was a revocation of the will of Margaret Whitner, as far as the property sold was concerned, even though the sale was afterwards annulled and the property returned to the succession of Margaret Whitner.

(3) That, if the will should be admitted to probate, and be held not revoked to the extent of the property referred to, the legacy to Josephine Giles was not given in addition to or in excess of her fifth interest as an heir, and was therefore subject to collation.

The district judge sustained the opponents' plea of estoppel and res judicata, and rejected the demand of Josephine Giles to have the will probated. She has appealed from the decision.

It is conceded by her counsel that, if the will should be admitted to probate, the legacy to her of the entire estate would have to be reduced to the disposable portion, which, inasmuch as there are more than two forced heirs, is a third of the estate. Rev. Civ. Code, art. 1493. Counsel for appellant contend, however, that by giving the whole of the estate the testatrix expressed the intention to give the disposable portion over and above the fifth interest which the legatee was entitled to receive by inheritance, and that, according to article 1501 of the Civil Code, the legacy should be reduced, not to the disposable portion, one-third, but to one-third plus one-fifth, or eight-fifteenths, of the estate. Counsel for the appellees contend that, according to articles 1230 and 1231 of the Civil Code, inasmuch as the testatrix did not declare that the legacy to Josephine Giles was intended as an extra portion and as an advantage over the other forced heirs, the whole legacy is subject to collation and must be returned to the succession of the testatrix.

Having come to the conclusion that the judgment sustaining the plea of estoppel and res judicata is correct, we find it unnecessary to pass upon either the second or third plea urged by the appellees.

It is conceded that the property which was in contest in Giles v Kelly is the only property Margaret Whitner owned, within the knowledge of any of the parties to this suit. It was perhaps for that reason, and because of the provisions of article 1695 of the Civil Code, that the attorneys for Josephine Giles did not deem it advisable to produce the will, or to rely upon it, during the pendency of the former suit...