Estate of Roderick Anderson Rick, Sr. .

Opinion

ESTATE OF RODERICK * NO. 2023-CA-0391 ANDERSON RICK, SR. * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-03257, DIVISION “A” Honorable Ellen M. Hazeur ****** Judge Nakisha Ervin-Knott ****** (Court composed of Chief Judge Terri F. Love, Judge Rosemary Ledet, Judge Paula A. Brown, Judge Tiffany Gautier Chase, Judge Nakisha Ervin-Knott)

LOVE, C.J., DISSENTS WITH REASONS

Brad P. Scott Anton Martynenko Kameron P. Whitmeyer SCOTT VICKNAIR, LLC 1321 Ochsner Blvd., Suite 100 Covington, Louisiana 70433

COUNSEL FOR APPELLANT

A. Scott Tillery Matt J. Tillery TILLERY & TILLERY 701 Metairie Road, Suite 2A201 Metairie, Louisiana 70005

COUNSEL FOR APPELLEE

REVERSED AND REMANDED February 5, 2024 NEK RML PAB

TGC

Pamyla C. Rick (“Appellant”) appeals the district court’s judgment denying

her Petition for Partial Possession of Judgment. For the following reasons, we

reverse the district court’s ruling and remand this matter for further proceedings.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Roderick Anderson Rick, Sr. (the “decedent”) died on October 24, 2016. At

the time of his death, he was married to Tresea Sandifer Rick (“Appellee”) and had

one son, Roderick Anderson Rick, Jr., from a previous marriage. On April 6, 2017,

the decedent’s son1 filed a petition to the open the decedent’s succession, alleging

that his father had died intestate. However, on May 22, 2017, Appellee filed a

Petition to Probate Olographic Testament. The testament, which was half-typed

and half-handwritten, was executed on June 29, 2015. In it, the decedent left

everything to his wife, Appellee. After a trial on the merits, the court denied

Appellee’s Petition to Probate Olographic Testament, finding that the instrument

failed to conform with the requirements of Louisiana Civil Code article 1575. The

court’s judgment was rendered on November 2, 2017, and reduced to writing on

January 24, 2018.

1 Roderick Anderson Rick, Jr. died on April 29, 2022. His wife, Pamyla C. Rick,

was substituted as the party plaintiff in this case.

1 Thereafter, on March 14, 2018, Appellee filed another Petition to Probate,

File, and Execute Olographic Testament. This time, the instrument was a

completely handwritten document that was executed on August 18, 2014. The

document reads as follows:

8-18-14 If I don’t make it through this open heat [sic] surgery I would like my wife Tresea have [sic] all my money in the bank [sic] this second open heart surgery that she had to see me go through by herself [sic] I want her to know how much I appreciate all the love I have for her being there for me [sic] she don’t know her car was a gift. I want her to have the house to finish raising our grandchildren in it [sic] I love my wife Tresea Sleates Roderick A. Rick Sr.

This is the testament currently at issue. It is undisputed that the decedent

wrote this document the night before he was to undergo an open-heart surgery. On

July 19, 2019, Appellant filed a Petition for Partial Judgment of Possession, again

alleging that the decedent had died intestate. Appellant argued that the August

2014 testament contained a suspensive condition that did not occur. Namely, the

sentence “If I don’t make it through this open hea[r]t surgery” is a suspensive

condition and, because the decedent did survive the surgery, the testament is

invalid.

On February 6, 2023, the district court held a contradictory hearing on the

Petition for Partial Possession of Judgment. At the conclusion of the hearing, the

district court found that the August 2014 testament did not contain a suspensive

condition and denied the Petition for Partial Possession. The judgment was reduced

to writing on March 15, 2023, and this suspensive appeal followed.

ASSIGNMENTS OF ERROR

Appellant assigns three assignments of error on appeal: (1) the district court

erred as a matter of law by failing to follow the rules for testamentary

2 interpretation codified in La. C.C. arts. 1611-16; (2) the district court erred as both

a matter of law and fact by reading into the testament an intent to favor Appellee;

and (3) the district court erred as a matter of law by failing to give effect to each

and every part of the will, specifically the first sentence. As all of these

assignments relate to the district court’s interpretation of the testament, we will

address them simultaneously under one category.

STANDARD OF REVIEW

In this case, the parties do not dispute the validity of the form of the August

2014 olographic will. The sole question in this case is whether the first portion of

the testament constituted a suspensive condition, and the parties disagree as to the

interpretation of this provision. Whether the language in a testament is ambiguous

is a question of law that is reviewed de novo. Succession of Foster, 2019-0209, p. 8

(La. App. 4 Cir. 7/31/19), 363 So. 3d 505, 511. Under a de novo standard, the facts

and evidence in the record are examined with no deference given to the trial

court’s judgment or reasons for judgment. Cosey on Behalf of Hilliard v. Flight

Academy of New Orleans, LLC, 2019-0785, p. 3 (La. App. 4 Cir. 11/12/20), 365

So. 3d 76, 80 (quoting Cutrone v. English Turn Prop. Owners Ass’n, Inc., 2019-

0896, p. 10 (La. App. 4 Cir. 3/4/20), 293 So. 3d 1209, 1216).

DISCUSSION

Interpretation of Testaments

The rules governing the interpretation of testaments in Louisiana are

longstanding. The most basic principle regarding the interpretation of a testament

is that the intent of the testator controls its interpretation. La. C.C. art. 1611(A).

However, when interpreting a testament, the reviewing court must determine the

testator’s intent without departing from the terms of the will. Succession of Martin,

3 262 So. 2d 46, 47 (La. App. 1st Cir. 1972) (citing Delaureal v. Rouget’s

Succession, 177 La. 815, 149 So. 464 (1933); Succession of Cunningham, 142 La.

701, 77 So. 506 (1918)). Further, “the court must interpret the will as written and

give effect to what the testator said, not what the court thinks the testator intended

to say.” Succession of Martin, 262 So. 2d at 48. In other terms, “[i]f the language

of the testament is clear, its letter is not to be disregarded under the pretext of

pursuing its spirit.” La. C.C. art. 1611(A). The court must determine the expressed

intent in the document, not the probable intent. Succession of Martin, 262 So. 2d at

48 (citing Succession of Jarreau v. Succession of Jarreau, 184 So. 2d 762 (La.

App. 3d Cir. 1966); Succession of Blue, 126 So. 2d 195 (La. App. 4th Cir. 1961)).

“It is a cardinal rule of testamentary construction that each and every part of

the will shall be given effect; no word, phrase or clause shall be declared

surplusage if it can be afforded a reasonable and legal interpretation.” Succession

of Lambert, 210 La. 636, 657, 28 So. 2d 1, 8 (1946). The decedent’s intention as it

is expressed in his will must govern the will’s disposition. Succession of Liner,

2019-02011, p. 4 (La. 6/30/21), 320 So. 3d 1133, 1137 (citing Soileau v. Ortego,

189 La. 713, 718, 180 So. 496, 497 (1938)). The words in a testament should be

interpreted using their popular and ordinary meaning. Succession of Lambert, 210

La. at 658, 28 So. 2d at 8. When interpreting a testament, a court must give great

weight to the first and natural impression conveyed to mind after reading the will

as a whole. Carter v. Succession of Carter, 332 So. 2d 439, 442 (La. 1976).

Whenever possible, courts should interpret wills in a way that favors testacy over

intestacy. Id. (quoting Succession of La Barre, 179 La. 45, 48, 153 So. 15, 16

(1934)). However, the application of this preference must be tailored to the facts of

4 the particular case and testament at issue. See Succession of Martin, 262 So. 2d at

50; Succession of Merritt, 581 So. 2d 728, 730 (La. App. 1st Cir. 1991).

The August 2014 Will

The law is clear. The intent of the testator as expressed within the four

corners of his testament controls the disposition of his estate. The decedent’s will

starts with the phrase, “If I don’t make it through this open hea[r]t surgery . . . .”

This is a qualifying phrase that clarifies everything written after it and establishes a

suspensive condition. See La. C.C. art. 1767.2

At the hearing on this matter, the trial judge denied the petition for

possession and stated her reasons on the record:

With respect to the will, the Court finds that the August 2014 will does not contain a suspensive condition, nor does the Court find it to be vague and/or ambiguous. Although it’s clear that the testator did, in fact, survive the open-heart surgery which he referenced in his olographic will, the testator goes on to explain his intent for his bequest to Tresea Rick by stating that she had been there for him through both of his surgeries and that he wanted her to know how much he appreciated her.

(Emphasis added).

While we agree with the district court that the will is unambiguous, the

district court erred in finding that it did not contain a suspensive condition. The

language of the decedent’s olographic will is clear—if the decedent did not survive

his 2014 open-heart surgery, then his wife was to inherit. Contrary to the

arguments presented on this appeal, there can be no other interpretation of that

statement. We find that this is a case wherein the district court disregarded the

plain language of the testament under the pretext of pursuing its spirit in

contravention of La. C.C. art. 1611.

2 La. C.C. art. 1767 provides that a suspensive condition is an obligation that cannot be acted upon unless an uncertain, future event occurs.

5 Appellee directs our attention to Carter wherein the Louisiana Supreme

Court held that the words in a will written by a layperson are not held to the same

standard as those in a will drafted by an attorney. See Carter, 332 So. 2d at 442.

The Supreme Court held that in such a case the law “exempts language from

technical restraint and obeys the clear intention however informally conveyed.” Id.

However, Carter is distinguishable in that the will at issue in that case did not

contain a suspensive condition. Rather, the issue in Carter was who would inherit

the decedent’s separate property because the will did not explicitly name a legatee

for that portion of his estate.

The olographic will in Carter began with the decedent leaving all of his

interest in the community to his wife. 332 So. 2d at 440. After doing so, the

decedent wrote “I further bequeath” and disposed of his separate property. Id.

However, he did not state who would get the separate property, and the decedent’s

siblings argued that they were entitled to the separate property as the intestate

heirs. Id. at 440-41. In looking at the will in its entirety, the Supreme Court found

that the decedent intended to leave everything named in the will to his wife. Id. at

442. Specifically, the Supreme Court found that the will had one legatee—the

wife—and that the later dispositions were a further bequest as to what was to go to

her. Id.

In the case at bar, the decedent’s testament is not ambiguous as to the

disposition of his estate. He states, in plain words, that his wife would inherit his

property if he did not survive the open-heart surgery. There is nothing complicated

or technical about the phrase such that the decedent, or any layperson, could not

comprehend the meaning of the words written. Notably, the decedent mentions the

6 impending surgery twice in his one paragraph testament, giving further insight into

his state of mind and concern about the procedure.

The Supreme Court in Carter held that a testator’s intention must be

ascertained from the whole will and that each and every part of the will should be

given effect. Carter, 332 So. 2d at 441. Our reading of the decedent’s will, which

takes into account the entirety of the will, is consistent with the rules of

interpretation established under our laws and in our jurisprudence. Our case

involves an instance wherein the decedent wrote a will on the eve of a major

surgery leaving all to his wife should he not survive that surgery. In fact, we find

this case to be similar to the situation in Succession of Martin, wherein the

decedent had placed a condition in her olographic will that the legatees would

inherit if she and her husband passed away at the same time. 262 So. 2d at 47.

However, the decedent survived her husband by over a year. Id. The legatees of the

lapsed will argued before the First Circuit that the decedent had intended for them

to inherit if her husband predeceased her. In finding that the will had lapsed, the

First Circuit reasoned:

We find the wording of Testatrix’s will clear, concise, explicit and unambiguous. They present no uncertainty and require no interpretation since they refer to a specific circumstance and have logical meaning just as they are. To hold as legatees urge necessitates a reading out of words contained in the will and substituting therefor language not employed by Testatrix. The court cannot put words in a testator’s mouth. . . . It is not within our province to say it would have been more practical or sensible for Testatrix to have provided that legatees would take her property if Testatrix’s husband predeceased her. We hold, therefore, that the legacies lapsed because the conditions imposed thereon by the will did not occur. We find that the presumption against intestacy must yield to the facts of this particular case.

Succession of Martin, 262 So. 2d at 49-50 (internal citations omitted) (emphasis

added). Similarly, Appellee is requesting that the Court strike out the plain

7 language used by the decedent, which goes against this state’s long-standing rules

of interpretation. No court should re-write the decedent’s will or presume that the

decedent did not understand what he wrote when the language used is explicit and

clear. The court’s job is to uphold the terms of the testament as written.

Appellee requests in her brief that, if we find that the will contains a

suspensive condition, we do not apply that condition to the entirety of the will.

Appellee contends that only the first provision of the will contains the suspensive

condition and that the condition should not be applied to the later sentence that

bequeaths the house to her. This argument is strikingly similar to the failed

argument made in Carter, wherein the siblings of the decedent claimed that they

were entitled to inherit the decedent’s separate estate because he had failed to name

a legatee in the later part of his will. Just like the Supreme Court in Carter, we give

effect to the will as a whole and the natural impression conveyed from a first

reading. To assume that the decedent placed a condition only on a portion of his

property would lead to a strained and unnatural interpretation that does not

comport with the long-standing principles of testament interpretation. See Carter,

332 So. 2d at 442.

DECREE

For the foregoing reasons, we find that the district court erred as a matter of

law in denying the Petition for Partial Possession and holding that the August 2014

will did not contain a suspensive condition. Therefore, we reverse the district

court’s judgment and remand this matter for further proceedings.

REVERSED AND REMANDED