Succession of Zatarain

• Decision Date: 29 January 1962
• Docket Number: No. 5522,5522
• Citation: Succession of Zatarain, 138 So.2d 163 (La. App. 1962)
• Parties: Succession of Marie Aline ZATARAIN.
• Court: Court of Appeal of Louisiana

Page 163

138 So.2d 163

Succession of Marie Aline ZATARAIN.

No. 5522.

Court of Appeal of Louisiana, First Circuit.

Jan. 29, 1962.

Rehearing Denied March 7, 1962.

Certiorari Denied April 19, 1962.

Arthur V. Flotte, New Orleans, Kennon, White & Odom by Robert F. Kennon, Baton Rouge, for appellant.

Watson, Blanche, Wilson, Posner & Thibaut, by Jules B. Lizarrago, Baton Rouge, Richard L. Voelker, Jr., New Orleans, for appellee.

Before LOTTINGER, LANDRY and REID, JJ.

LANDRY, Judge.

The sole issue presented on this appeal is whether an attorney at law, named in a testament as attorney for testator's executrix, has the right, after the death of testator, to appoint or designate another attorney as sub-agent to represent the executrix upon his death.

The facts involved in this lawsuit are not in dispute between the parties--the single issue herein being limited, as previously stated, to a question of law, namely, whether or not an attorney designated by a testator to handle the testator's succession may in turn name or appoint a representative or sub-agent to continue the work in the event the attorney appointed by the testator dies before the succession proceedings are concluded.

Decedent, Marie Aline Zatarain, widow by first marriage of Alfredo Blanco and of Albert Lawrence Loustalot by second marriage, departed this life in St. Tammany Parish, Louisiana, on December 14, 1960, leaving a last will and testament naming appellee herein, Anna Davey, executrix of her estate and Ernest J. Robin, Attorney, counsel for her said executrix.

Following the death of said testatrix, Mr. Robin, assisted by appellant herein, instituted proceedings to probate said decedent's last will and testament with the view of ultimately complying with the numerous bequests and other provisions contained therein. After the succession was opened, the executrix qualified, inventories taken, authority obtained for the executrix to proceed with the administration of the estate and letters of notification issued to a large number of the particular and residuary legatees named in the will, Ernest J. Robin (the attorney designated by decedent to handle her estate) died, his death occurring on February 6, 1961. In all of the aforesaid proceedings Attorney Robin was assisted by appellant, Arthur V. Flotte, Attorney-At-Law, who decedent Robin associated in these succession proceedings commencing with the filing of the initial petition and who assisted Mr. Robin in consummating all of the various stages of this matter undertaken prior to Robin's death.

Four days subsequent to Robin's demise, appellee herein, Anna Davey, the duly recognized and qualified testamentary executrix of decedent Marie Aline Zatarain, filed an ex parte order or rule (without notice to appellant Flotte) to change the attorney for decedent's estate. Opposition to said rule or order was tendered by Flotte to which appellee responded with exceptions of no right and no cause of action. The trial court sustained appellee's said exceptions, dismissed appellant's opposition to the rule or order and appointed an attorney of Mrs. Davey's choice to represent decedent's estate in all further proceedings. From the order of the trial court dismissing his said opposition, Mr. Flotte has taken this appeal.

It is the position of appellant that whereas the usual or ordinary engaging of the services of an attorney-at-law is a mandate terminable at will and without cause by the principal or client, a different rule obtains in cases wherein an attorney is appointed by a testator to handle the testator's estate for the reason that in the latter type case the attorney so appointed acquires a real interest in the succession of the testator thereby characterizing such mandate as one coupled with an interest and consequently, rendering same irrevocable. In support of this contention learned counsel for appellant cite the following authorities: Schiro v. Macaluso, 13 La.App. 88, 126 So. 244; Rivet v. Battistella et al., 167 La. 766, 120 So. 289; Succession of Rembert (In re Johnson), 199 La. 743, 7 So.2d 40; Succession of Pope, 230 La. 1049, 89 So.2d 894; Succession of Toombs, 167 La. 21, 118 So. 488; Mechen on Agency, 2nd Edition, Vol. 1, Sec. 655, p. 465; 2 Am.Jur., Agency, Sec. 59.

Predicated upon the foregoing premise appellant invokes the principle that in a mandate coupled with an interest the agent possesses implied authority to appoint a representative or sub-agent to perform the work for which the agent was engaged by the principal and the death of the agent does not, per se, terminate the sub-agency. Learned counsel also argues that only the principal can question the right of his agent to delegate the authority conferred by the principal and that appellee, being merely the executrix of the principal (testator), has no right to question the power of the agent to delegate the authority reposed in the agent by the now deceased principal.

The law of this state is settled to the effect that ordinarily and as a general rule a contract for the services of a member of the legal profession is not a hiring of labor, but a mandate. Gurley v. City of New Orleans, 41 La.Ann. 75, 5 So. 659; Schiro v. Macaluso, 13 La.App. 88, 126 So. 244; Louque v. Dejan, 129 La. 519, 56 So. 427, 38 L.R.A.,N.S., 389. It is equally well settled that a mandate of this character is revocable at the will of the principal. Succession of Robinson, 188 La. 742, 178 So. 337; Foster, Hall, Barret & Smith v. Haley, 174 La. 1019, 142 So. 251; LSA-C.C. Art. 3028, and expires at the death of the agent, LSA-C.C. Art. 3027.

The obligation of an attorney-at-law to his client is a personal rather than heritable obligation. In this regard we note the provisions of LSA-C.C. Art. 2000, as follows:

'Art. 2000. Obligations personal to obligor

'The obligation shall be presumed to be personal on the part of the obligor, whenever, in a contract to do, he undertakes to perform any thing that requires his personal skill or attention; in this case, if that, which was to be done, was not solely and exclusively for the use or gratification of the obligee, the obligation, although personal as to the obligor, will be heritable against the heirs of the obligee for the equivalent to be paid or given for that which was to be done.'

It is likewise clear that parties taking under a will are bound by the provisions of the testament designating a particular attorney to settle the testator's estate. Rivet v. Battistella, 167 La. 766, 120 So. 289.

The attorney designated in a will to handle the testator's affairs has a right to perform all legal duties incident to settlement of the estate and be paid therefor. Succession of Martin, 56 So.2d 176; Succession of Rembert, 199 La. 743, 7 So.2d 40. An attorney so appointed has an interest in having the testament of decedent probated. Succession of Pope, 230 La. 1049, 89 So.2d 894.

In view of the foregoing it cannot be seriously denied that had Mr. Robin lived he would have enjoyed the right to continue to represent decedent's estate until all of the affairs of the succession were completed.

We have carefully read and examined all of the authorities cited and relied upon by able counsel for appellant and find that they are not decisive of the issue at hand. All of the cited cases deal with instances wherein the attorneys appointed in the decedent's testament were alive and ready, willing and able to discharge the duties incumbent upon them as attorney for the estate involved. We have not been cited nor has our own research disclosed any precedent factually analogous to the case at bar, that is, involving a case in which the attorney appointed in the will died prior to completion of the succession proceedings.

It is contended by appellant (apparently on behalf of Mrs. Robin--widow of the now deceased attorney, Ernest J. Robin) that the obligation assumed by Robin is heritable (evidently on the theory that while ordinarily a power of attorney is terminated on the death of the principal such result does not obtain when the power of attorney or mandate is coupled with an interest). This argument would appear to assume that if an obligation is heritable as to the obligee it must also be heritable as to the obligor but such result does not necessarily follow in view of Article 1998, LSA-C.C. which we cite in its entirety:

'Art. 1998. Personal and heritable character of obligations

'An obligation may be personal as to the obligee, and heritable as to the obligor, and it may in like manner be heritable as to the obligee, and personal as to the obligor.'

We concede that Successions of Labauve, 34 La.Ann. 1187, is authority for the rule that the obligation of an attorney to his client continues even after the death of the client (principal) but such issue is not the question involved in the case presently before us.

Granting, arguendo, upon authority of Schiro v. Macaluso, 13 La.App. 88, 126 So. 244 (cited and relied upon by appellant), the interest of an attorney designated to handle a decedent's succession is similar to a testamentary donation, it does not necessarily characterize the interest as being of the nature and type sufficient to render the mandate irrevocable, thereby conferring upon the agent authority to engage subagents without the permission or consent of the principal. To constitute a mandate of the class that is coupled with an interest sufficient to make the mandate irrevocable, the interest of the agent in the subject matter of the agency must be such as to give the agent the right to deal with the res in his own name--'procurator in rem suam'. Renshaw v. His Creditors, 40 La.Ann. 37, 3 So. 403; Bryson v. United Gas Public Service Co., La.App., 169 So. 350; Marchand v. Gulf Refining Co. of Louisiana, 187 La. 1002, 175 So. 647. See e.g., Jacquet v. His Creditors, 38 La.Ann. 863.

The following appearing in Marchand v. Gulf Refining Co. of Louisiana, supra, seems most appropos:

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