Succession of Achille Bijeaux

• Court: Louisiana Court of Appeal
• Decided: February 7, 2007
• Docket: CA-0006-1256
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

06-1256

SUCCESSION

OF

ACHILLE BIJEAUX

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2003-0273 HONORABLE JULES EDWARDS III, DISTRICT JUDGE

OSWALD A. DECUIR JUDGE

Court composed of Oswald A. Decuir, Glenn B. Gremillion, and Billy Howard Ezell, Judges.

AFFIRMED.

Stan Gauthier, II Kristi D. Husher Attorneys at Law 1405 West Pinhook Road, Suite 105 Lafayette, La 70503 (337) 234-0099 Counsel for Appellees: Lawrence James Menard Lisa Menard Guillotte

James Patrick MacManus Attorney at Law 225 West Main Street Lafayette, LA 70501 (337) 234-1720 Counsel for Plaintiff/Appellant: Mildred Bourque Broyles Arthur Daniel Mouton Attorney at Law P. O. Box 52269 Lafayette, LA 70505 (337) 233-3697 Counsel for Appellee: Alexander Bourque Wade Bourque Lester Bourque

Glynn Rozas Attorney at Law P. O. Box 3732 Lafayette, LA 70502 (337) 593-0111 Counsel for Plaintiff/Appellant: Mildred Bourque Broyles DECUIR, Judge.

Mildred Bourque Broyles appeals the trial court’s revocation of her

appointment as executrix. Finding no error in the decision rendered below, we

affirm.

The evidence in the record before us indicates that Achille Bijeaux died on

January 19, 2003, at the age of ninety-three. He had signed a will in 1998 wherein

he designated his niece, Mildred Bourque Broyles, as executrix of his estate. She was

also the primary legatee named in the will. Shortly after Bijeaux’s death, Broyles

petitioned the court to confirm her as testamentary executrix and requested that letters

testamentary issue. She did not, however, take the “oath to discharge faithfully the

duties of [her] office” as required by Article 3158 of the Louisiana Code of Civil

Procedure.

Broyles’ three brothers, Alexander, Wade, and Lester Bourque, and Achille’s

brother-in-law, Lawrence James Menard, were also named beneficiaries in the will,

along with numerous other relatives. They petitioned the court for an accounting and

sought to traverse the detailed descriptive list filed by Broyles. During the course of

discovery, the Bourques and Menard learned that Broyles was the beneficiary of two

annuities purchased by Achille in 1998 and that she had collected approximately

$225,000.00 in annuity benefits. Alleging numerous grounds for her removal, the

Bourques and Menard sought to have Broyles’ appointment as executrix revoked.

A hearing was held on November 29, 2004. After verifying that Broyles had

indeed failed to file the required oath, the trial court removed her as succession

representative. The court was then presented with the application of Lisa Menard

Guillotte who sought to be appointed dative testamentary executrix. Acknowledging

Broyles’ continuing desire to serve as executrix, the court took evidence on the

relative merits of the two candidates. The evidence revealed the following facts. At the time the 1998 will was

signed, Mildred lived on the family farm with Achille and took care of him. He could

not read or write the English language and had depended on his wife and son to

handle his affairs until their deaths in 1996 and 1991, respectively.

In the years after Achille’s wife’s death, Mildred handled all of his financial

business and often signed his name on documents even though she had no power of

attorney authorizing her to do so. In 1998, Achille purchased two annuities through

a Dallas stockbroker working for Salomon Smith Barney, Inc. The documents were

filled out and signed by Mildred and she was the named beneficiary on both. Months

later, Achille signed a new will naming Mildred as executrix and leaving her

significant portions of his estate. The evidence in the record before us also discloses

that Mildred wrote and signed numerous checks made out to “Cash” on Achille’s

accounts, checks totaling over $125,000.00. Finally, in her testimony, Broyles

offered no explanation for failing to take the requisite oath of office as executrix and

failing to file annual accountings as requested by her co-legatees.

In rendering the decision to appoint Guillotte as the succession representative,

the trial court noted Broyles’ failure to file the oath of office and furnish an

accounting. The court also based its decision on the “information I learned during the

course of this hearing to really question whether or not Ms. Mildred Broyles should

be appointed to serve.” Conversely, the court found nothing to suggest that Guilllotte

would not be capable of serving as executrix. We find no error in these factual

conclusions. The determination of whether to remove or replace a succession

representative is within the discretion of the trial court and will not be reversed by

this court in the absence of an abuse of that discretion. Succession of LaFleur, 99-

1100 (La.App. 3 Cir. 12/8/99), 752 So.2d 237, writ denied, 00-0446 (La. 3/31/2000),

2 759 So.2d 74; Succession of Songne, 94-1198 (La. App. 3 Cir. 11/2/95), 664 So.2d

556, writ denied, 95-2877 (La. 2/2/96), 666 So.2d 1101.

Under the authority of Articles 3181 and 3182 of the Louisiana Code of Civil

Procedure, the trial court removed Broyles as the representative of the Succession of

Achille Bijeaux. Finding no abuse of discretion in this decision, we affirm the

judgment rendered below. Costs of this appeal are assessed to Mildred Bourque

Broyles.