In Re Succession of Plummer

847 So. 2d 185, 2003 La. App. LEXIS 1422, 2003 WL 21085843
CourtLouisiana Court of Appeal
DecidedMay 14, 2003
Docket37,243-CA
StatusPublished
Cited by6 cases

This text of 847 So. 2d 185 (In Re Succession of Plummer) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Succession of Plummer, 847 So. 2d 185, 2003 La. App. LEXIS 1422, 2003 WL 21085843 (La. Ct. App. 2003).

Opinion

847 So.2d 185 (2003)

SUCCESSION OF Ronald R. PLUMMER.

No. 37,243-CA.

Court of Appeal of Louisiana, Second Circuit.

May 14, 2003.

John J. Mooney, Jr., Felix J. Bruyninckx, III, Monroe, for Appellants, Carl Plummer, Sherryl Plummer, Donald Plummer, Doris Plummer.

Mary Alice Bryant, Monroe, for Appellees, Cynthia M. Thomas, Cheronda Thomas Minor.

Before BROWN, PEATROSS and KOSTELKA (Pro Tempore), JJ.

KOSTELKA, Judge Pro Tempore.

In this disputed succession case, the brothers and sisters of the decedent, Ronald R. Plummer, appeal the judgment of the trial court holding that the document presented for probate is not a valid olographic will. We affirm.

FACTS

In 1999, Ronald R. Plummer ("Mr. Plummer") attempted to create an inter vivos trust for the management and distribution of his assets using a printed form with the caption "Revocable One-Party Living Trust" (hereinafter "Exhibit J-1"). In one section of the trust instrument entitled "Schedule of Beneficiaries and Distributive Shares," handwritten instructions designate the beneficiaries and direct the management and division of the trust property upon his death. Mr. Plummer *186 was divorced with no children from the marriage. He named his brothers and sisters, Carl Plummer, Donald Plummer, Sheryl Plummer and Doris Plummer ("the appellants"), all of whom live in Adams County, Mississippi, as beneficiaries to the trust. The document is dated June 25, 1999 and signed "Ronald R. Plummer." Mr. Plummer died on April 9, 2000 without having completed the inter vivos trust.

Besides his brothers and sisters, Mr. Plummer was survived by his ten-year-old daughter, Cheronda Leshay Thomas. On September 4, 2001, Cheronda's mother, Cynthia Thomas ("Thomas"), filed a petition on behalf of her daughter to open the succession of Mr. Plummer and to have Mr. Plummer's succession declared intestate. In response, the appellants filed a "Petition to Probate Olographic Testament" on January 28, 2002 alleging that Mr. Plummer had a Last Will and Testament. The alleged will consisted of two unusually numbered pages, K105-3 and K105-3-1, annexed to the petition. The "will" was, in fact, the "Schedule of Beneficiaries and Distributive Shares" (hereinafter "Exhibit A") from the inter vivos trust instrument.

After an evidentiary hearing and argument on May 10, 2002 and a second oral argument on August 1, 2002, the court issued its Ruling on September 4, 2002, holding that the document was not a valid olographic will. The court specifically found that the testamentary intent of the document was not "unmistakable," and that the signature to the document had not been proven authentic.

The appellants filed a suspensive appeal. Prior to lodging the record, the court reporter notified the clerk of the trial court that an "accurate and efficient" transcript of the May 10, 2002 testimony could not be obtained from the tapes due to a malfunction in the recording equipment at the time of recordation. The trial court issued an order on November 20, 2002 to each counsel of record to submit a summary of the testimony of each witness no later than December 15, 2002. The court further ordered the parties to submit these summaries to the court's chambers and not to file them into the record absent an order from the court. Subsequently, on December 13, 2002, the Summary of Testimony submitted to the court by the appellants was filed in the record. This document contains a summary of the testimony of all the witnesses who testified at the May 10, 2002 hearing.[1]

DISCUSSION

The appellants argue that the trial court erred when it concluded that Exhibit A did not constitute a valid olographic will and that Mr. Plummer therefore died intestate. Specifically, they contend the trial court erred in its findings that Exhibit A did not set forth testamentary intent and that the burden of proof had not been met with respect to proving Mr. Plummer's signature.

Appellants initially maintain that reversal is required because this Court is unable to conduct a proper review of the testimonial record, inasmuch as a complete transcript of the testimony is unavailable. They further contend that the missing testimony establishes testamentary intent.

When notified of the court reporter's inability to provide a transcript of the testimony, the trial court ordered the parties to summarize the testimony of all trial witnesses for both sides. The record contains *187 the appellants' summarized version of the testimony, and the appellants filed no motion to remand the case for the purpose of retaking testimony. Cf. Kay v. Home Indemnity Company, 301 So.2d 705 (La. App. 3rd Cir.1974).

La. C.C.P. art. 2161 states that an appeal shall not be dismissed because the trial record is missing or incomplete no matter who is responsible. The court may remand the case for retrial or correction of the record. Id. However, a record on appeal that is incomplete may be corrected even after the record is transmitted to the appellate court by the stipulation of the parties or by the trial or appellate court. La. C.C.P. art. 2132. If the testimony of the witnesses has not been transcribed, the appellant must request the other parties to join with him in a written and signed narrative of the facts, and if an agreement cannot be reached regarding the narrative, the judge shall make a written narrative of the facts, which shall be conclusive. La. C.C.P. art. 2131.

The trial judge in this instance did not follow the procedure set out in La. C.C.P. art. 2131. The judge should have required the parties to stipulate to a narrative of the facts of the case, and, if an agreement as to those facts could not be reached, the trial judge, as the fact-finder, should have set forth a narrative of the facts. In this instance, the trial court requested both parties to provide a "summary of the testimony" of this case. The appellants provided a narrative of the trial testimony that was filed in the record. Thomas submitted with her brief a narrative of the trial testimony.

Despite this error, we do not consider remand necessary in this instance. An appellate court has the discretion to defer the question as to whether the necessary documents are in the record, to be decided on the merits, and then dismiss the appeal, if the record is insufficient. Succession of Wintz, 111 La. 40, 35 So. 377 (La.1902).

The trial court's conclusion that testamentary intent was lacking in Exhibit A was not based upon testimony of the witnesses, but on the language of the document itself. It is well settled that parol evidence cannot be used to establish testamentary intent. Succession of Faggard, 152 So.2d 627 (La.App. 2d Cir.1963).

Thus, under these circumstances, we conclude that no prejudice resulted from the loss of the recorded testimony for purposes of establishing testamentary intent. Although the trial court did not follow exactly the procedure for creating a narrative of the facts as specified by La. C.C.P. art. 2131, we conclude that the record is sufficient to determine the dispositive issues in this case, namely, the validity of the olographic will.[2]Creech v. Creech, 29,499 (La.App.2d Cir.05/07/97), 694 So.2d 589; Simmons v. Yelverton, 513 So.2d 504 (La.App. 2d Cir.1987).

There are two essential requirements for a valid will: the act must be in valid form and the clauses it contains, or the manner in which it is made must clearly establish that it is a disposition of last will. Hendry v. Succession of Helms, 557 So.2d 427 (La.App. 3d Cir.02/07/90), writ denied, 560 So.2d 8 (La.1990).

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Cite This Page — Counsel Stack

Bluebook (online)
847 So. 2d 185, 2003 La. App. LEXIS 1422, 2003 WL 21085843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-succession-of-plummer-lactapp-2003.