Kilpatrick v. Kilpatrick

625 So. 2d 222, 1993 WL 366736
CourtLouisiana Court of Appeal
DecidedSeptember 22, 1993
Docket25061-CA
StatusPublished
Cited by9 cases

This text of 625 So. 2d 222 (Kilpatrick v. Kilpatrick) 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
Kilpatrick v. Kilpatrick, 625 So. 2d 222, 1993 WL 366736 (La. Ct. App. 1993).

Opinion

625 So.2d 222 (1993)

Travis H. KILPATRICK, Plaintiff-Appellant,
v.
Arnold R. KILPATRICK, et al., Defendants-Appellees.

No. 25061-CA.

Court of Appeal of Louisiana, Second Circuit.

September 22, 1993.

*223 Kneipp & Hastings by Donald L. Kneipp, Monroe, for plaintiff-appellant.

Bobby L. Culpepper, Jonesboro, for defendants-appellees.

Before MARVIN, LINDSAY and VICTORY, JJ.

LINDSAY, Judge.

The plaintiff, Travis H. Kilpatrick, appeals from a trial court judgment sustaining an exception of prescription against his claim to be recognized as an heir to his father's estate. For the following reasons, we affirm.

FACTS

On May 24, 1961, the plaintiff's father, L.L. Kilpatrick, died. He was survived by his wife, Blanche Burkett Kilpatrick and four sons, Willard H. Kilpatrick, John Granville Kilpatrick, Arnold R. Kilpatrick and the plaintiff, Travis H. Kilpatrick. The decedent left an olographic will which was executed on December 17, 1952. In his will, the decedent bequeathed to each of three of his sons, Willard, John and Arnold, forty acre tracts of land. Regarding the plaintiff, the decedent did not make any provision, but explained in his will that the plaintiff had already received a forty acre tract of land. The will specifies as follows:

Thirdly, I do hereby will and bequeath my real estate which I now own, as follows, my son Travis Kilpatrick already having been given a forty acres [sic] of land upon which his home is located, and being the NE ¼ of *224 the NE ¼ Section 22, twp 16 N. R. 1 East, which is his portion....

After the bequest of the forty acre tracts of land to three of his sons, the decedent provided in his will that the balance of his property, real, personal or otherwise, that he might own at his death, should be distributed according to law.

The succession proceeding was filed and the will was probated on June 28, 1962. A judgment of possession was filed on September 20, 1962. An amended judgment of possession was filed on August 27, 1965 which merely corrected the property descriptions on the tracts of land conveyed to the three sons.

The decedent's widow was placed in possession of the family home. She relinquished any right she might have to the forty acre tracts of land bequeathed to plaintiff's brothers, and they relinquished any right they might have to the family home. The judgment of possession specified that the plaintiff acknowledged that he had already received his portion of his father's estate.

On June 26, 1992, the plaintiff filed a petition to be recognized as an owner in indivision with his brothers, or their heirs, of all the property which his father possessed at the time of his death. The petition states that the plaintiff's mother is now deceased, as are two of his brothers, John Granville Kilpatrick and Willard H. Kilpatrick. The plaintiff's petition names the heirs of his deceased brothers as defendants in this action, along with Arnold R. Kilpatrick who is still living.

The plaintiff's petition alleges that when the succession was opened, the plaintiff's mother and brothers filed pleadings stating that the plaintiff agreed to the provisions of the succession. The plaintiff claims that he was unaware of the opening of the succession and that those proceedings and the judgment of possession were intentionally concealed from him. He further contends that the terms of his father's will, the judgment of possession and the amended judgment of possession deny his right of inheritance, as established by law. In his petition, the plaintiff requested that the court declare him to be an owner, in indivision, of all the property in the estate of his father, including, but not limited to, the property described in the judgment of possession and the amended judgment of possession.

On July 9, 1992, a peremptory exception of prescription was filed. In the exception, the exceptors admitted that, in his will, L.L. Kilpatrick conveyed his property to three of his sons, to the exclusion of the plaintiff, but that the will very specifically stated that the plaintiff had already received a forty acre tract of land as his inheritance. The defendants contended that the plaintiff's petition sought the nullification of the will executed by L.L. Kilpatrick and argued that actions to nullify wills, or for the reduction of excessive donations, prescribe in five years under LSA-C.C. Art. 3497.

A hearing on the exception was held on September 17, 1992. The affidavit of the plaintiff, Travis Kilpatrick, was filed into evidence in lieu of his testimony. In his affidavit, the plaintiff stated that he was not aware of the opening of his father's succession or the filing of the judgment of possession until June, 1992. He stated that he did not consent to the terms thereof, never signed a renunciation of the succession and did not execute a verification of the allegations made by the pleadings filed in the succession.[1]

The defendants contended that plaintiff's action was aimed either at nullifying the last will and testament of L.L. Kilpatrick, or to reduce the donations made in the will. Both actions are subject to the five year prescriptive period set forth in LSA-C.C. Art. 3497 and, as such, were prescribed.

The plaintiff argued that he was not seeking to annul the testament, nor was he alleging excessive donations or seeking collation or reduction. The plaintiff claims that his *225 action to be recognized as an owner in indivision of his father's estate is governed by LSA-C.C. Art. 3502, which provides a thirty year prescriptive period to assert an action for recognition of a right of inheritance and recovery of a whole or a part of the succession.

The plaintiff further argued that the running of any prescriptive period which might apply was suspended by the doctrine of contra non valentem agere nulla currit praescriptio. He claims that because he did not know of the succession proceedings, prescription did not run.

In oral reasons for judgment, the trial court found that the five year prescriptive period was applicable, and that the time period had expired. The trial court implicitly rejected the plaintiff's argument that the running of any prescriptive period, five years or thirty years, was suspended under the doctrine of contra non valentem. On September 17, 1992, the trial court signed and filed a judgment, sustaining the exception of prescription and dismissing the suit.

The plaintiff appealed. In his appeal, plaintiff contends that the trial court erred in applying the five year prescriptive period under LSA-C.C. Art 3497 and in finding that the doctrine of contra non valentem did not suspend the running of prescription.

PRESCRIPTION

The plaintiff argues that his action for recognition of his right of inheritance and to recover a portion of his father's estate is governed by the thirty year prescriptive period contained in LSA-C.C. Art. 3502, which provides:

An action for the recognition of a right of inheritance and recovery of the whole or a part of a succession is subject to a liberative prescription of thirty years. This prescription commences to run from the day of the opening of the succession.

The defendants argue that, because this is a testate succession, and because all the property owned by the testator at the time of his death was disposed of by donations mortis causa, the plaintiff's action to recover a portion of the property is governed by LSA-C.C. Art. 3497, which provides, in pertinent part:

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Cite This Page — Counsel Stack

Bluebook (online)
625 So. 2d 222, 1993 WL 366736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kilpatrick-v-kilpatrick-lactapp-1993.