In re the Succession of Catha

221 So. 3d 125, 2016 La.App. 1 Cir. 0654, 2017 La. App. LEXIS 831, 2017 WL 2170312
CourtLouisiana Court of Appeal
DecidedMay 16, 2017
DocketNO. 2016 CA 0654
StatusPublished

This text of 221 So. 3d 125 (In re the Succession of Catha) 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 the Succession of Catha, 221 So. 3d 125, 2016 La.App. 1 Cir. 0654, 2017 La. App. LEXIS 831, 2017 WL 2170312 (La. Ct. App. 2017).

Opinion

THERIOT, J.

| ¡¿The appellants, John King and Minnie Catha King (“the Kings”), appeal the judgment of the Twenty-First Judicial District Court in favor of the appellee, Sheryl An-drus Carnegie, administratrix of the succession of Evelyn Heloise Andrus Catha. In addition, the appellee has filed a motion in this Court to convert the appeal from suspensive to devolutive. For the following reasons, we grant the appellee’s motion and affirm the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

The decedent, Evelyn Heloise Andrus Catha, executed a notarial last will and testament on November 29, 2014.1 In that will, the Kings were designated as co-executors of the estate. The decedent died on November 21,2015.

On November 23, 2015, Ms. Carnegie filed a petition for appointment of adminis-tratrix and to appoint an attorney to search for any existing wills executed by the decedent. It was Ms. Carnegie’s belief, according to the petition, that the decedent died intestate and requested that she be appointed administratrix over the estate.2 The district court appointed her adminis-tratrix on this date.

On December 8, 2015, Húey Oscar Lowery, III3 filed a petition to be appointed co-administrator of the decedent’s estate, claiming that the decedent did have a valid handwritten olographic will and died testate.4 Ms. Carnegie opposed1 his petition. Ms. 'Carnegie believed that the purported handwritten olographic will was invalid in form as prescribed by La. C.C. Rart. 1575. Mr. Lowery moved to revoke Ms. Carnegie’s status as administratrix, claiming that as a legatee of the decedent, he was more familiar with the decedent’s wishes than Ms. Carnegie, who was not a legatee.

On December 21, 2015, the Kangs filed a petition to probate the decedent’s notarial [127]*127will, attaching the will to the petition, and requesting that they be appointed co-exee-utors. The district court ordered that the Kings be appointed co-executors. Mr. Lowery subsequently filed his own petition, to probate the decedent’s hand-written olo-.graphic will, requested that he be appointed executor, and attached a copy of the purported olographic will to the petition.

Ms. Carnegie petitioned the district court to annul both the notarial will and the olographic will.5 As to the notarial will, she claimed that the decedent had revoked it. Ms. Carnegie alleges in her petition that she provided to the Kings’ counsel proof of the decedent’s; revocation of .the notarial will, which the Kings did not present to the district court prior to dbtaining ex parte probate of the notarial will.

As to the olographic will, Ms. Carnegie alleged that it failed to meet the legal requirements of a valid olographic will because it was not signed at the end by the decedent, nor was it entirely written in the decedent’s handwriting, nor was it properly dated. Ms. Carnegie additionally claimed that the olographic will was procured through the fraud, duress, or other undue influence exerted upon the decedent by Mr. Lowery.

Trial was held on January 19, 2016. The district court found the olographic will to be invalid as to form and granted a new trial on the probate of the notarial will. The district court found that the notarial will 14had been validly revoked by the decedent. Lastly, the district court ordered that the succession would proceed intestate and reinstated the previous order appointing Ms. Carnegie as administratrix of the succession. It is from this judgment of the district court that the Kings have sus-pensively appealed.

MOTION TO CONVERT APPEAL

Initially we address the motion before us filed by Ms. Carnegie to convert .the Kings’ suspensive.appeal to .a devolu-tive appeal. A, suspensive appeal suspends or delays the effect or execution of an appealable judgment, and security must be furnished in prder for the judgment to be suspended. La. C.C.P. art. 2123(A). A devolutive appeal does not suspend the effect of an appealable judgment. La. C.C.P. art. 2087(A). A judgment or order of a trial court appointing or removing a legal representative shall be executed provisionally notwithstanding an appeal therefrom. La. C.C.P. art. 2122. Therefore, appeals are authorized from judgments appointing or removing succession representatives. In re Succession of LeBouef, 2013-0209 (La.App. 1 Cir. 9/9/14), 153 So.3d 527, 533.

In the instant case, the effect of the district court’s' judgment was to reinstate Ms. Carnegie as administratrix of the succession. This is the situation contemplated by La. C.C.P. art. 2122. Since such judgments shall be “executed provisionally nóte withstanding an appeal,” appeals taken from such judgments are necessarily devolutive. La. C.C.P. art. 2122; LeBouef, 153 So.3d at 533. Based on our previous holding in LeBouef, we grant. Ms. Carnegie’s motion to convert the Kings’ suspen-sive appeal to a devolutive appeal.

^ASSIGNMENT OF ERROR

The sole assignment of error raised by the Kings is whether the district court erred in finding the decedent had effectively revoked her notarial will.6

[128]*128STANDARD OF REVIEW

The question in the instant case is whether a presumption of revocation arises from the intentional destruction of one multiple original of the will. The district court’s findings of fact regarding a presumed revocation of a will by destruction are subject to manifest error review. In re Succession of Doucet, 42,963 (La. App. 2 Cir. 2/6/08), 975 So.2d 738, 742. Destruction of a will by the testator is the most effective means of revoking it. In re Succession of Jones, 356 So.2d 80, 83 (La. App. 1 Cir. 1978), writ denied, 357 So.2d 1168 (La. 1978) The testator’s intentional destruction of her will gives rise to a rebuttable presumption that she intended to revoke her testament and all copies thereof. See Succession of Talbot, 530 So.2d 1132, 1134-1135 (La. 1988). However, this presumption is rebuttable and may be overcome by sufficient evidence. Id. at 1135.

DISCUSSION

The district court based its ruling that the notarial will had been validly revoked pursuant to La. C.C. art. 1607, which states:

Revocation of an entire testament occurs when the testator does any of the following:
(1) Physically destroys the testament, or has it destroyed at his direction.
(2) So declares in one of the forms prescribed for testaments or in an authentic act.
(3) Identifies and clearly revokes the testament by a writing that is entirely written and signed by the testator in his own handwriting.

| Jn its oral reasons for judgment, the district court stated it placed great weight on the testimony of Bryan Adams regarding the decedent’s intent to destroy the notarial will. Mr. Adams purchased property from the decedent, then worked for the decedent as a farmhand and collected rent for the decedent from her tenants. Mr. Adams claimed to be familiar with the decedent’s signature, as he had seen it many times on documents she had signed.

At the trial, Mr. Adams was shown an original copy of the notarial will that had the portion containing the signature and dates torn off at the bottom.

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Related

Succession of Talbot
530 So. 2d 1132 (Supreme Court of Louisiana, 1988)
In Re Succession of Doucet
975 So. 2d 738 (Louisiana Court of Appeal, 2008)
In Re Succession of Jones
356 So. 2d 80 (Louisiana Court of Appeal, 1978)
Succession of LeBouef
153 So. 3d 527 (Louisiana Court of Appeal, 2014)

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Bluebook (online)
221 So. 3d 125, 2016 La.App. 1 Cir. 0654, 2017 La. App. LEXIS 831, 2017 WL 2170312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-succession-of-catha-lactapp-2017.