Succession of Campsen

581 So. 2d 296, 1991 La. App. LEXIS 1147, 1991 WL 78810
CourtLouisiana Court of Appeal
DecidedMay 16, 1991
DocketNos. 90-CA-0699, 90-CA-0700
StatusPublished
Cited by2 cases

This text of 581 So. 2d 296 (Succession of Campsen) 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
Succession of Campsen, 581 So. 2d 296, 1991 La. App. LEXIS 1147, 1991 WL 78810 (La. Ct. App. 1991).

Opinions

BYRNES, Judge.

Clyde G. McShan, previously appointed Testamentary Executor of the Succession of Pauline Campsen, Deborah McShan, and Sandra Cheffer (collectively “McShan”), appeal from the trial court’s decision granting Edward K. Pinner, attorney and Dative Testamentary Executor of Albert C. Camp-sen’s succession, a Petition to Pay Urgent Debts which consisted of attorney’s fees and executor fees totalling $6,608.31 plus the inheritance taxes. McShan also appeals the trial court’s decision denying his Motion for New Trial, and Motion to Determine Executor’s/Attorney’s Compensation. We affirm in part, and remand in part.

ASSIGNMENTS OF ERROR

Mr. McShan presents five assignments of error. Mr. McShan contends the trial court erred in: (1) removing Mr. McShan as Testamentary Executor without a contradictory hearing prior to the November 3, 1989 ruling; (2) rendering a Judgment of Possession for certain property in the Succession of Albert Campsen in the November 20, 1989 ruling; (3) failing to determine the fees due Mr. Pinner; (4) ordering a payment of an excessive fee to Mr. Pinner; and (5) denying Mr. McShan’s Motion for a New Trial from the November 3,1989 judgment. Mr. Pinner answers contending one assignment of error that: (6) the trial court erred denying the Rule for Sanctions against Mr. McShan, II.

[298]*298FACTS

Albert Campsen died on September 28, 1978. Pauline Campsen died on December 5, 1986. Both successions were opened on August 19, 1988. Mr. McShan and Valerie Lark qualified as Co-Executors of Ms. Campsen’s testate succession. Mr. Pinner qualified as Dative Testamentary Executor of Mr. Campsen’s testate succession. Mr. McShan had a Notary appointed to search for the will of Mr. Campsen.

Mr. McShan petitioned for a Judgment of Possession over Mr. Campsen’s Succession. A hearing was held on July 27, 1989. On August 25, 1989, Mr. Pinner filed a Descriptive List. Mr. McShan offered to pay Mr. Pinner from Mrs. Campsen’s succession. On August 28, 1989 Mr. Pinner requested $3,350.00 compensation for Executor's fee, and attorney’s fees. Mr. McShan refused to pay the request, but offered to pay Mr. Pinner $110.00 an hour for time spent on the Succession of Mr. Campsen. Mr. Pinner re-submitted his bill, with an itemized hourly report for 74.5 hours. Again Mr. McShan refused to pay Mr. Pin-ner. On September 5, 1989, Mr. Pinner filed an Amended Sworn Descriptive List, adding funds of $55,612.13 to Mr. Camp-sen’s Succession. Mr. McShan filed a Motion to Traverse and a Rule to Determine Executor’s/Attorney’s Compensation. This motion was denied by the court on December 15, 1989. The court granted Mr. Pin-ner’s Motion of Possession on November 3, 1989. On November 20, 1989 the court granted Mr. Pinner’s Motion to Pay Urgent Debts for Executor/Attorney fees in the amount of $6,530.61 plus inheritance taxes of $1,095.19.

Mr. McShan appeals the rulings of the trial court. Also, he appeals from the February 5, judgment denying his Motion for a New Trial.

SCOPE AND COURSE

(1); (2). Mr. McShan contends the trial court erred by removing him as Testamentary Executor on November 3, 1989. Also, he contends the trial court erred in rendering a Judgment of Possession for property in the Succession of Albert Campsen not belonging there. The determinations of the trial court must be entitled great weight. Succession of Godefroy, 428 So.2d 550 (La.App. 4th Cir.1983); Mascaro v. Davis, 420 So.2d 755 (La.App. 4th Cir.1982). The trial court’s determination to remove Mr. McShan as Testamentary Executor and rendering a Judgment of Possession was partly based upon Mr. McShan’s handling of the Security Homestead account, number 56-010800-1. The Security Account was opened by Mrs. Campsen April 1, 1985, with a balance of $18,493.24. When Mr. Pinner discovered the account, it contained $55,612.13, as of August 8, 1989. Mr. Pinner contends that some part of the Security Homestead account funds came from a Whitney National Bank account, number 111-29-079-969 jointly held by both Mr. and Mrs. Campsen, thus part of their community property regime. The Whitney account had been closed on February 17, 1982 by Mrs. Camp-sen. Thus, Mr. Pinner contended that Mr. Campsen’s succession had a value greater than just his community property portion of the property on Dreux Avenue.

Louisiana Civil Code Art. 2340 states that:

Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.

Code of Civil Procedure Art. 3137 states that:

The descriptive list of succession property authorized by Article 3136 shall be accepted as prima facie proof of all matters therein, unless amended or traversed successfully.

An interested person may traverse this list upon contradictory motion. Id. However, Mr. McShan did not offer the trial court substantive proof that none of the Security account funds came from the funds of the Whitney account. Instead, Mr. McShan contends that since the Security account was opened after the death of Mr. Camp-sen, the funds were solely the property of Mrs. Campsen.

[299]*299The trial court, without alternative contradictory evidence, had to presume that some part of the Security account funds originated from the Whitney joint account, thus a portion belonged in the Succession of Albert Campsen. La.C.C. Art. 2340. However, not all of the Security account could have come from the Whitney account. Mr. Pinner cites the Succession of Benton, 354 So.2d 721 (La.App. 4th Cir.1978), as requiring this court not to disturb the descriptive list of the Succession of Albert Campsen “because to do so would circumvent the provisions of LSA-C.C.P. Art. 3137 and usurp the authority and responsibility of the trial court.” Thus, we remand to the trial court the question as to what portion of the Security account originated from the Whitney account at the time of Mr. Campsen’s death, and to amend the sworn descriptive lists accordingly.

The trial court partly based its decision to remove Mr. McShan as Testamentary Executor of Mrs. Campsen’s succession upon the incidents surrounding the Successions of Mr. and Mrs. Campsen. In the judgment of July 27, 1989, the trial judge ordered Mr. McShan to:

“immediately file a sworn descriptive list here in showing the property comprising the estate of the late Pauline H. Camp-sen and the fair market value of said property on the date of death and the source of any funds, that is whether or not any of said funds were in existence on the date of death of the late Albert C. Campsen, ...”

Mr. McShan did not comply with this order until reordered to comply immediately within five days of October 27, 1989. The trial court partly based the decision for removal upon Mr. McShan’s discouraging acts toward Mr. Pinner. Mr. McShan offered twice to compensate Mr. Pinner and then refused upon receipt of the bill. Mr. McShan refused to compensate Mr. Pinner five percent of the Succession of Mr. Camp-sen, the same percent of Mrs. Campsen’s estate Mr. McShan was compensating his legal representation, not including the two and one half percent he was compensating himself as Executor. Mr. McShan then refused to execute his offer for $110.00 an hour to Mr. Pinner, upon receipt of Mr. Pinner’s hourly itemized bill for 74.5 hours. Although Mr.

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Related

Succession of Campsen
588 So. 2d 107 (Supreme Court of Louisiana, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
581 So. 2d 296, 1991 La. App. LEXIS 1147, 1991 WL 78810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-campsen-lactapp-1991.