Tweedel v. Brasseaux

• Decision Date: 23 May 1983
• Docket Number: No. 82-C-2681,82-C-2681
• Citation: 433 So.2d 133
• Parties: George T. TWEEDEL, et ux v. Elrick BRASSEAUX, et al.
• Court: Louisiana Supreme Court

Page 133

433 So.2d 133

George T. TWEEDEL, et ux v. Elrick BRASSEAUX, et al.

No. 82-C-2681.

Supreme Court of Louisiana.

May 23, 1983.

Rehearing Denied June 24, 1983.

Lawrence B. Sandoz, Jr., Lester Schiff, Sandoz, Sandoz & Schiff, Opelousas, for applicants.

Malcolm Brasseaux, Church Point, for respondents.

WATSON, Justice.

In contest is the validity of three donations inter vivos of immovable property. George T. Tweedel and his wife, Lillian Fontenot, gave Elrick Brasseaux, ¹ his wife, Hester Tweedel, and their three children the naked ownership of a one hundred twenty-six acre tract of land. The Court of Appeal affirmed a trial court judgment ² rescinding the donations. Tweedel v. Brasseaux, 420 So.2d 1305 (La.App. 3 Cir.1982). A writ was granted to review the judgment. 423 So.2d 1169 (La., 1982).

FACTS

Hester Tweedel Brasseaux is the niece of George T. Tweedel, "Uncle G.T.", being the daughter of Mr. Tweedel's brother who died at an early age. Hester; Elrick, her husband; and their children, Charles, Larry, and Charlene Brasseaux Miller; live in the Opelousas-Ville Platte area. Mr. Tweedel and his wife live in China, Texas, a small town near Beaumont.

Mr. Tweedel and his wife were the owners of a one hundred twenty-six acre tract of land located partly in Acadia Parish and partly in St. Landry Parish. Because the property produced oil, the Tweedels accumulated a large sum of cash in various banks before production ceased. Hester said Uncle G.T. had told her he wanted her to have the Louisiana tract after his and his wife's death because her father had died so young. By the Brasseauxs' account, Uncle G.T. called late in 1977 and instructed them by telephone to pick up a copy of the deed at his home and then have their lawyer draw a will giving them the property. Hester testified that the property description was obtained on a visit to Uncle G.T.'s home in China. Several days later she consulted attorney Albert John Boudreaux of Opelousas. According to Hester, attorney Boudreaux or his partner, Mr. Pavy, now deceased, called Uncle G.T. and recommended, because of inheritance tax considerations, a donation in lieu of a will. It was proposed that the Tweedels donate the property over a period of three years and reserve the usufruct. Mr. Boudreaux testified that, while his memory of the events was not precise, he thinks that Mr. Pavy talked to Mr. Tweedel and he is certain that he would never have prepared the donations without authorization from Tweedel. Attorney Boudreaux then drafted three identical documents which collectively donated the Louisiana acreage from Mr. and Mrs. Tweedel to Mr. and Mrs. Brasseaux and their children, reserving the usufruct and the right of use of the property to the Tweedels for their lifetimes. ³ It was specified that "these donations are made in consideration of the natural love and affection which the donors bear unto them and also to improve their financial positions, and the donees accept the donations as made to them with love and gratitude and acknowledge delivery and possession thereof for themselves, their heirs and assigns." (Tr. 54) The documents were to be executed by the Brasseauxs in the presence of witnesses before a notary in St. Landry Parish, Louisiana, and by the Tweedels in the presence of witnesses before a notary in Texas.

Because of the necessity of recordation in both Acadia and St. Landry Parishes, each of the three donations had to be executed in duplicate. One set of two was to be signed at the end of December, 1977, a second set in early January, 1978, and a third set in early January, 1979. Since the Acadia Parish Clerk's Office was closing at noon on December 30, 1977, attorney Boudreaux had the Brasseauxs sign the first set on December 29, 1977. They were instructed to take the papers to the Tweedels early the next morning along with the second set dated January 2, 1978.

On December 30, 1977, Elrick and Hester Brasseaux and their son Charles arrived at the residence of the Tweedels in China, Texas, about 7:00 A.M. Uncle G.T. called his neighbors, Larry and Ida Elliot, to witness the signatures and called Justice of the Peace L.R. Doucette to perform the notarial services. The notary testified that the Tweedels said they understood what they were signing, signed the acts of donation before him and that the witnesses also signed before he notarized the Tweedels' signatures.

Attorney Boudreaux had instructed the Brasseauxs to leave the second set of documents with the Tweedels for execution early in 1978. According to the Brasseauxs Uncle G.T. insisted that all four be signed on December 30, 1977, in order that he would not be required to later sign and mail the 1978 documents to Louisiana. Thus, the instruments dated December 30, 1977, and those dated January 2, 1978, were signed at the same time by the Tweedels.

The 1977 act of donation was recorded in Acadia Parish prior to the closing of the clerk's office on December 30, 1977, and a duplicate instrument was then recorded in St. Landry Parish.

Acceptance of the January 2, 1978, act of donation was signed on January 3, 1978, in Opelousas before attorney Boudreaux acting as notary. Thus, acceptance of the 1977 donation was signed one day prior to execution by the donors and acceptance of the 1978 donation was one day after execution by the donors.

There is considerable dispute in the record about the signing of the third set of instruments. A preponderance of the evidence reflects that the Brasseauxs went to China on January 6, 1979, with the third set of papers. On this second occasion, the Elliots again acted as witnesses and Judge Doucette served as notary. The Brasseauxs signed the acceptance on January 8, 1979, in Opelousas.

According to Mrs. Tweedel, attorney Boudreaux did not call her husband in 1977, she did not read the instruments before signing them, and she thought she was signing a will. Mrs. Tweedel keeps her family's business records and admitted that she had had a copy of the document in her possession from December, 1977, until trial.

G.T. Tweedel, age ninety-one at the time of trial, testified by deposition that neither attorney Boudreaux nor attorney Pavy called him to discuss the acts of donation. Although he admitted that attorney Pavy had handled a donation to another relative for him on a prior occasion, Tweedel testified that this time he intended to sign a will. He denied any desire to give the property to the Brasseauxs and denied reading the acts of donation. His health and reading ability were conceded to have been better in 1977 than at the time of trial.

Mrs. Elliot confirmed being a witness only once and thought she was witnessing a will. However, the four instruments signed in December of 1977 bear her signature as "Ida Elliot" and the two instruments dated January, 1979, have her signing as "Ida M. Elliot".

The most significant testimony concerning the intention of the Tweedels was that of Larry Elliot. In deposition, he testified that G.T. Tweedel told him they were either giving away or deeding away some property, and that they were doing it over a period of time to avoid inheritance taxes. This testimony by an entirely disinterested witness comports exactly with attorney Boudreaux's testimony and the acts of donation themselves.

Following the donations, the Tweedels continued to rent the one hundred twenty-six acre tract for farm purposes and even undertook to sell a ten acre section. That sale is not at issue in the present proceeding and, apparently, there was no title search. It was not until activity developed about a mineral lease that the Tweedels raised a question about the legal status of the land. ⁴ George Hall took a mineral lease from the Brasseauxs on behalf of LaBelle Petroleum and paid them a substantial bonus and then attempted to get a lease from the Tweedels. The Tweedels signed a lease for another oil operator, one Miley.

On March 20, 1981, the Tweedels filed a "Petition to Rescind Donation", which alleges: that the niece, Hester Tweedel Brasseaux, was instructed to obtain wills in her favor but that, unknown to them, she obtained acts of donation; that they were not allowed to read the acts; that they executed them in the belief that the instruments were wills; and that "the actions of defendants in this regard were fraudulent and were clearly done to benefit defendants to the prejudice of petitioners by deliberately misleading them through false representations." (Tr. 4) Thus, the petition of the Tweedels asked that the acts of donation be voided.

By amending petition, the plaintiffs alleged that the acts of donation were invalid for certain defects of form, including the following:

"(1) Some or all are not authentic acts and/or do not meet the requisites of the Civil Code;

"(2) Some or all were incorrectly dated and/or were not dated on the date of execution;

"(3) Some or all were accepted prior to the actual donation;

"(4) The instruments were not read by or to the donors, witnesses, and/or notary;

"(5) Some or all were not signed by the parties, witnesses, and/or notary in the presence of each other; and

"(6) Some or all were not signed by the Notary on the same date the donors and/or witnesses signed." (Tr. 18)

After trial on the merits, the trial court held that the donations should be rescinded because the parties did not know what they were signing and did not have the document explained to them. According to the trial court, there was "overwhelming testimony" (Tr. 104) that the donors did not intend to make donations inter vivos and the donees did not intend to accept the donations. The trial court also found a "multitude of irregularities" (Tr. 102) in the instruments.

The court of appeal found that the transaction should be rescinded under Art. 1881 of the Civil Code having to do with error. The court of appeal wrote:

"Plaintiffs have convincingly shown that they signed the contract through error and there...