STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
03-623
SUCCESSION OF CLIFTON J. DEROUEN
VERSUS
EUGENE DEROUEN AND LINDA CANNON
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 39,013 HONORABLE DAVID PAINTER, DISTRICT COURT JUDGE
GLENN B. GREMILLION JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Glenn B. Gremillion, and Elizabeth A. Pickett, Judges.
Thibodeaux, C.J., dissents and assigns written reasons.
AFFIRMED AND REMANDED.
Thomas M. Bergstedt Felton Paul Leger Brian W. Arabie Bergstedt & Mount 1011 Lake Shore Dr., Ste 200 Lake Charles, LA 70601 Telephone: (337) 433-3004 COUNSEL FOR: Appellee - Deborah H. Derouen Andre' Joseph Buisson Woodley, Williams, etc. P. O. Box 3731 Lake Charles, LA 70602 Telephone: (337) 433-6328 COUNSEL FOR: Appellee - Donald K. Derouen
Timothy O'Dowd 921 Ryan St. Lake Charles, LA 70601 Telephone: (337) 310-2304 COUNSEL FOR: Appellant - Eugene Derouen and Linda Cannon GREMILLION, Judge.
In this succession case, the trial court found that a clause in the testator’s
will, which provided that his son was to receive a particular legacy of “an extra
portion . . . [of] an interest in [his] property equal to 15 acres of his choice,” was valid
and refused to nullify the will. For the following reasons, we affirm and remand for
further consideration.
FACTS
Clifton J. Derouen executed his last will and testament on August 6,
1999; he died on June 22, 2000. He had four children: Donald K. Derouen, Jarrett
B. Derouen, Eugene C. Derouen, and Linda Derouen Cannon. In Section IV of his
will, Clifton left a particular legacy to Jarrett that provided as follows:
As an extra portion, not subject to collation, I give and bequeath to my son, Jarrett B. Derouen, an interest in my property equal to 15 acres of his choice.
Both Jarrett and Donald were appointed co-executors of their father’s estate (Clifton
Estate). Jarrett and Donald acted together in administering the estate until Jarrett’s
death on October 17, 2000. After Jarrett’s death, Donald was confirmed as the sole
executor of the Clifton Estate. Jarrett died before he exercised his choice as provided
in Section IV of Clifton’s last will and testament.
Deborah Derouen, the widow and executrix of Jarrett’s estate, notified
Donald that she, as Jarrett’s successor, selected the fifteen acres of land as provided
in Section IV of Clifton’s last will and testament as Jarrett’s choice. Thereafter, Linda
and Eugene filed a petition to nullify Clifton’s last will and testament. Deborah
claims that Section IV of the last will and testament is still valid and that she should
1 be allowed to make the choice that belonged to Jarrett prior to his death. Donald, as
the sole executor of the Clifton Estate, sought a declaratory judgment on the issue of
whether Section IV is nullified because the legatee is deceased. After a trial on the
merits, the trial court found that the provision bequeathing fifteen acres of land to
Jarrett was valid as written, which allowed Jarrett’s heirs the right to choose that
which was originally given to Jarrett in Section IV of Clifton’s last will and testament.
From this judgment, Linda and Eugene appeal.
ISSUES
An issue in this case is whether a section of a last will and testament that
gives an heir and co-executor of the estate an extra portion and power to choose an
interest in the estate equal to fifteen acres of property is null where that heir died prior
to making such choice. The second issue is whether the authority to make the
selection of property shifts to the surviving executor of the estate, if the section in
question is not nullified.
LAW AND DISCUSSION
In interpreting a will, the courts in Louisiana are guided by La.Civ.Code
arts. 1611 through 1616. These articles provide that the court must ascertain the intent
of the testator and that the testator’s intent must be given effect. La.Civ.Code arts.
1611, 1612. “The above cited code articles direct us to interpret a testament in a way
that furthers, rather than frustrates, the testator’s lawful intent.” Morgan v. Leach, 96-
173, p. 5 (La.App. 1 Cir. 9/27/96), 680 So.2d 1381, 1384. “The cardinal principle of
the interpretation of acts of last will is to ascertain and honor the intent of the testator
ascribing meaning to a disposition so that it can have effect.” Lingo v. Courmier, 95-
2 542, p. 3 (La.App. 3 Cir. 11/2/95), 667 So.2d 1091, 1093, writ denied, 96-795 (La.
5/10/96), 672 So.2d 925.
In interpreting these articles, the courts endeavor to ascertain the testator’s intention, and all other rules of construction are only means to that end. The Supreme Court has indicated that the function of the courts is to carry out the intention of the testator and effect should be given to all language contained in the will if possible.
Succession of Bel, 377 So.2d 1380, 1383 (La.App. 4 Cir. 1979). When the words of
the testament are plain and unambiguous, the testator’s intent should be ascertained
from the language used in the testament, giving the words used their usual
significance. Succession of Vatter, 192 La. 657, 188 So. 732 (1939). The language
used in the testament “must be understood according to its common, popular
acceptation.” Id. at 668, 736. If the language of the testament is clear, its letter is not
to be disregarded under the pretext of pursuing its spirit. La.Civ.Code art. 1611. The
language, as well as Clifton’s intent, is plain and unambiguous. Clifton sought to give
Jarrett an extra share of his property, of Jarrett’s choosing.
The provision in Clifton’s will at issue is in Section IV that gives Jarrett
an interest in property equal to fifteen acres of his choice. Appellants first argue that
Section IV violated La.Civ.Code art. 1572 because the testamentary disposition in
Section IV was committed to Jarrett’s choice, a third person to the will. Louisiana
Civil Code Article 1572 provides in pertinent part:
Testamentary dispositions committed to the choice of a third person are null, except as expressly provided by law. A testator may delegate to his executor the authority to allocate specific assets to satisfy a legacy expressed in terms of a value or a quantum, including a fractional share.
3 Additionally, appellants argue that, even if Jarrett is not a “third person” to the will,
Article 1572 was still violated because Section IV left it to only one of two of the
executors of the estate to make a distribution of property.
Initially, we shall determine if Jarrett is a third party to the will as it
relates to this particular bequest. We note that Jarrett is both a legatee and a
succession representative under the will. In that regard, Deborah contends that,
because Section IV of the will is a particular legacy, Article 1572 and La.Code Civ.P.
art. 3192 (which provides for the duties and powers of multiple succession
representatives) are inapplicable to Clifton’s bequest to Jarrett. To support her
position that Jarrett, as a legatee, is not a third party to the will, she cites four cases.
First, in Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3 Cir. 1976), writ
denied, 342 So.2d 217 (La.1977), the issue involved whether the failure of the
deceased to properly record a notarial adoption nullified the adoption, thereby
allowing only the children of the deceased from a previous marriage, who were not
adopted, to inherit as forced heirs from the deceased’s estate. The court, in a footnote,
concluded that, under these particular facts, with respect to the public records doctrine,
legal heirs are not generally regarded as third persons in the law. Id. at 904, n.1.
While the facts and issue in Fontenot are dissimilar to those in the case sub judice, the
case does demonstrate that, if heirs were third parties, they could have relied on the
public records doctrine and defeated the adopted daughter’s claim to be a forced heir.
Likewise, in Haggard v. Rushing, 76 So.2d 52 (La.App. 2 Cir. 1954), the
issue was a matter of whether the heirs were third persons with respect to the public
records doctrine. In Haggard, the deceased, prior to his death, executed a document
4 in favor of Rushing authorizing him to use the surface of a piece of property for a
fence. The deceased did not record this document. Upon Haggard, Sr.’s death, his
children were placed in possession of his land and recognized as the owners. After
a discussion on the interpretation of contracts, the court concluded that Haggard, Sr.
gave Rushing a usufruct over the property. The children then claimed that, because
that usufruct was not recorded, they were not bound to honor the contract as third
parties. The court held that, as heirs of Haggard, Sr., they were bound by contracts
made by him and, in that sense, they were not third parties. Again, while the facts of
this case are not “on all fours” with Deborah’s position that Jarrett was not a third
party to his father’s last will and testament, it demonstrates that heirs are not
considered third parties in these instances. The last two cases cited by Deborah,
Porterfield v. Parker, 189 La. 720, 180 So. 498 (1938), and Green v. McDade, 17
So.2d 637 (La.App. 2 Cir. 1944), also pertain to the definition of a “third person” with
respect to heirs and the public records doctrine and will not be discussed in detail in
this opinion. However, the cases provide some guidance for our analysis and mitigate
to the finding that legatees are not third parties to wills.
We have found no jurisprudence that directly addresses the issue that we
are faced with in the instant case, that is, whether under Article 1572, an heir and/or
particular legatee is a “third person” to whom a testamentary disposition is committed
making that portion of the testament null and void.
In Tel-American, L.L.C. v. Columbia Telecommunications, Inc., 00-1989,
p. 3 (La.App. 4 Cir. 5/16/01), 789 So.2d 627, 629, our colleagues of the fourth circuit
discussed the following with respect to defining “third party:”
5 “Third party” is a term of art. Black’s [L]aw Dictionary, Sixth Edition, defines “Third party”:
One not a party to an agreement, a transaction, or an action but who may have rights therein
This is consistent, for example with Chapter 7 of Title IV of the Louisiana Civil Code (Art. 1978, et seq.) entitled, “Third Party Beneficiary.”
[La.Civ.Code] art. 3506(32) [in Title XXV. Of the Signification of Sundry terms of Law Employed in This Code] defines “Third Persons” as:
With respect to a contract or judgment, third persons are all who are not parties to it. . . .
The court goes on to note that the “definition of ‘third party’ or ‘third person’ as one
not a party to an agreement is so time honored and universal that the courts of this
state do not even feel it necessary to define the term when employing it.” Id.
At the outset, one would not consider the legatee a third party to a
donation mortis causa in the same sense that one would not consider a vendee or
donee a third party to their respective agreements or transactions. The legatee is “a
party to an agreement, a transaction, or an action,” who has “rights therein.” Id.
Further, there is no definition of a third person in Article 1572. However,
Comment (a) to the article sheds light on the meaning of the phrase “choice of a third
person.” It reads:
The source of this Article is Article 1573 of the Civil Code of 1870, which originally provided that "the custom of willing by testament, by the intervention of a commissary or attorney in fact, is abolished." In 1982 the article was amended to grant a testator limited power to delegate authority to an executor to select assets to distribute in satisfaction of certain legacies. The 1982 amendment to Article 1573 has been preserved and significantly expanded to permit the delegation of authority to an executor to select assets to distribute in all instances where the legacy of the share of the estate is designated by quantum or
6 value. The revision clarifies that "quantum" includes fractional shares, such as one-fourth or one-half of something, and intentionally removes the language in Article 1573 (1870) that limits the ability to delegate such authority to the instances where the designation of the quantum or value is made "either by formula or by a specific sum". This article permits delegation of authority in all instances where the legacy is a quantum or value, whether or not the bequest is by formula or by specific sum.
It is clear from the comment and the history of this article that former Article 1573 did
away with the testator’s ability to appoint a third party, such as a commissary or
attorney-in-fact, to decide the provisions of the will. Such is not the case at hand.
Jarrett was a legatee and a party to the will and not a commissary or attorney-in-fact.
Moreover, granting a legatee the choice of certain assets is not in
contravention of any of the rules for donations mortis causa. In Succession of Meeks,
609 So.2d 1035 (La.App. 2 Cir. 1992), writ denied, 612 So.2d 86 (La.1993), the
testator left to her nephew “twenty-five thousand together with the contents of my
home and any other personal belongings of his choice which I shall own at the time
of my death.” She left the remainder of her property to a church. The issue was
whether the terms “and any other personal belongings” constitutes a bequest of the
decedent’s entire estate to the nephew. The court held that the term “personal
belongings” did not include financial assets and business property, but things that the
testatrix had some intimate relation to such as household items, jewelry, her vehicle,
etc. Thus, the court found that the church was the universal legatee of the remainder
of the estate. Although not stated, it is implied that, as the universal legatee, the
church would receive all of the non-personal belongings and the personal items that
remained after the nephew made his choice of items that he wanted.
7 Accordingly, we find that Jarrett was not a third party to the will and that
Article 1572 is not applicable to the instant case. We affirm the trial court’s finding
that the will was valid.
EFFECT OF JARRETT’S DEATH
Since the will is valid, Jarrett inherited his choice of fifteen acres from
his father. The question now presented is whether Deborah, as Jarrett’s executrix, can
make that choice. For this issue, the comments to La.Civ.Code art. 1586 provide
some guidance. Comment (e) states, “An executor may be given the power to select
assets to satisfy a general legacy without changing the nature of the legacy. See Civil
Code Articles 1302 and 1725 (1870) and Article 1571 of this revision.” La.Civ.Code
art. 1302 (1870) reads in part (emphasis added):
There is no occasion for partition, if the deceased has regulated it between his lawful heirs, or strangers, or if the deceased has expressly delegated the authority to his executor to allocate specific assets to satisfy a legacy expressed in terms of a quantum or value; and in such case the judge must follow the will of the testator or his executor.
Further, Article 1725 provides: “If a testator has designated the quantum or value of
his estate which he bequeaths to a legatee either by formula or by specific sum, he
may expressly delegate to his executor the authority to select assets to satisfy the
quantum or value.” (Emphasis added). Finally, Article 1572 allows a testator to
“delegate to his executor the authority to allocate specific assets to satisfy a legacy
expressed in terms of . . . a quantum, including a fractional share.” Clearly, the law
provides that an executrix may “allocate” and “select” assets to satisfy a legacy
expressed in a quantum; i.e., fifteen acres of his choice.
8 However, the record does not contain a copy of Jarrett’s testament nor
was any testimony adduced at trial as to its contents. Accordingly, we must remand
this case to the trial court to determine if Jarrett expressly delegated the authority to
choose the certain acres to fulfill his legacy to the executor of his estate, Deborah.
She may have been given the authority to choose the acres while another person(s)
was named the legatee. If the testament does not expressly delegate the power to
choose the acres to the executrix, but Deborah is the heir, she may choose the
particular acres as an heir, a position which would not conflict with her role as
executrix. If Jarrett did not expressly delegate the authority to choose, then the
property devolves in the manner he expressly provided for and his heirs inherit the
right to choose the fifteen acres.
CONCLUSION
For the above reasons, the judgment of the trial court regarding the
nullity of Section IV of Clifton Derouen’s last will and testament is affirmed in all
respects. This case is remanded to the trial court for further consideration. The costs
of this appeal are taxed against the defendants-appellants, Eugene Derouen and Linda
Derouen Cannon, in solido.
9 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
THIBODEAUX, J., dissenting.
We all agree on the law which is to be applied; my disagreement focuses
on the interpretation of the various codal provisions. Indeed, La.Civ.Code arts. 1611-
1616 focus on the intent of the testator. As the majority points out, we must focus on
the lawful intent of a testator. Clifton sought to give his son, Jarrett, an extra portion
of his property. Nothing, of course is wrong with this. But, it must be done correctly.
The problems are that Jarrett is a third person to the will, the provision attempting to
give him an extra portion is ambiguous, and the will did not specifically delegate to
Jarrett the authority to allocate as executor of Clifton’s estate.
The jurisprudence relied upon by the majority does not support its
position. For instance, in Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3 Cir. 1976),
writ denied, 342 So.2d 217 (La.1977), the court, in a footnote, concluded that under
the particular facts of that case, legal heirs are not generally regarded as third persons
in the law with respect to the public records doctrine. Fontenot at 904, n.1. Because
the facts and the issue in Fontenot are so dissimilar to the facts and issue in this case,
the court’s holding in Fontenot is not dispositive of the issue in here. Likewise, in
Haggard v. Rushing, 76 So.2d 52 (La.App. 2 Cir. 1954), the public records doctrine was implicated. Again, the facts do not support Deborah’s position that Jarrett is not
a third party to his father’s last will and testament. The last two cases, Porterfield v.
Parker, 180 So. 498 (La.1938) and Green v. McDade, 17 So.2d 637 (La.App. 2 Cir.
1944) also pertain to the definition of a “third person” with respect to heirs and the
public records doctrine. The public records doctrine is not an issue in this case. The
majority’s reliance on these cases is misplaced.
Neither side contests the indisputable fact that Jarrett was not a party
signatory to Clifton’s last will and testament. Only the testator, Clifton, signed the
will. To the extent that jurisprudence is persuasive authority under Louisiana’s civil
law system, my interpretation of and reliance upon Tel-American, L.L.C. v. Columbia
Telecommunications, 00-1989, (La.App. 4 Cir. 5/16/01), 789 So.2d 627, is different
than that of the majority’s. In Tel-American, the fourth circuit explained:
“Third party” is a term of art. Black’s [L]aw Dictionary, Sixth Edition, defines “Third party”:
One not a party to an agreement, a transaction, or an action but who may have rights therein
This is consistent, for example with Chapter 7 of Title IV of the Louisiana Civil Code (Art. 1978), et seq.) entitled, “Third Party Beneficiary.”
[La.Civ.Code] art. 3506(32) [in Title XXV. Of the Signification of Sundry terms of Law Employed in This Code] defines “Third Persons” as:
With respect to a contract or judgment, third persons are all who are not parties to it. . . .
Id. at 629.
The court goes on to note that the “definition of ‘third party’ or ‘third person’ as one
not a party to an agreement is so time honored and universal that the courts of this
state do not even feel it necessary to define the term when employing it.” Id.
2 Deborah argues that even if Jarrett is considered a third person to
Clifton’s last will and testament, that Jarrett, as executor, had “authority to allocate
specific assets to satisfy a legacy . . .” under La.Civ.Code art. 1572. However,
Clifton’s will did not specifically delegate to Jarrett the allocation authority as
executor of his estate. Clifton’s will merely named Jarrett as co-executor with his
brother, Donald. Moreover, even if Jarrett could have made the allocation to himself
as co-executor of his father’s estate, he failed to do so prior to his death. Thus, this
argument is without merit. Section IV of Clifton’s last will and testament violated the
provisions of La.Civ.Code art. 1572 and is, therefore, null.
Furthermore, even if Jarrett, as a legatee to the last will and testament of
his father is not a “third person” as provided in La.Civ.Code art. 1572, Section IV of
the testament is still invalid. The only unambiguous part of the bequest is that Jarrett
was to receive an extra portion. Clifton wished to bequeath to Jarrett “an interest.”
It is unclear what type of interest he intended to give to Jarrett. Further, the bequest
states that the “interest” is in “[Clifton’s] property.” The bequest fails to state what
type of property, whether movable or immovable. Last, the “interest” in “property”
given to Jarrett is the equivalent of “15 acres.” It is unclear whether the value of
whatever “interest” in whatever “property” is to equal the value of “15 acres” or
whether Jarrett is to choose fifteen acres of land. It is plausible that Clifton intended
that Jarrett receive cash or other property equal to the value of fifteen acres of land
which he would choose rather than the actual land.
For the foregoing reasons, I dissent.