Succession of Firmin

938 So. 2d 209, 2005 La.App. 4 Cir. 1218, 2006 La. App. LEXIS 1920, 2006 WL 2521599
CourtLouisiana Court of Appeal
DecidedAugust 2, 2006
DocketNo. 2005-CA-1218
StatusPublished

This text of 938 So. 2d 209 (Succession of Firmin) 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 Firmin, 938 So. 2d 209, 2005 La.App. 4 Cir. 1218, 2006 La. App. LEXIS 1920, 2006 WL 2521599 (La. Ct. App. 2006).

Opinion

TERRI F. LOVE, Judge.

|; This case arises from a dispute in a succession proceeding regarding the payment of the mortgage debt on a home. The issue on appeal is which of the parties is responsible for payment of the interest on the mortgage note as between the wife of the decedent, who was left the “use and habitation” of the property, and the succession. We affirm the trial court’s judgment in holding that the decedent’s wife is not required to pay the interest on the mortgage debt.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Albert P. Firmin died testate on February 2, 2003, leaving his wife, Valerie Bos-worth Firmin (“Mrs.Firmin”), full ownership of all his “household furniture and belongings, appliances, and miscellaneous [211]*211personal effects” and “use and habitation” of the house in which they resided at 24 Chatham Drive, New Orleans. The home is encumbered by a mortgage. Additionally, the will provided for the creation of a trust, for the benefit of Mr. Firmin’s two major daughters from a previous marriage, to which he left “the balance of all the property of which I die possessed” subject to “the right of use and habitation of my home” and the other “special legacies set forth in Article I.” He appointed his sister Henrynne Louden (“Executrix”) as his executrix and trustee.

| ¡.Testamentary language directs that Mrs. Firmin have “use and habitation” of the home for as long as she may live, provided that she not vacate the premises for over six months, and that she care for the property as a prudent administratrix, making all reasonable repairs, paying taxes and maintaining both fire insurance and “extended coverage insurance.” She has resided in the home from the date of Mr. Firmin’s death.

On July 9, 2003, Mrs. Firmin filed a Motion to Compel Executrix to Pay Mortgage on the Family Home;1 the Executrix filed a motion in opposition on October 2, 2003.2 The Executrix then filed a Petition for Partial Possession and Motion and Incorporated Memorandum to Require Legatee to Accept or Renounce Legacy. In response, Mrs. Firmin claimed that she was neither under a legal nor a testamentary obligation to pay the mortgage notes. The Executrix alleged that Mrs. Firmin must either pay the mortgage in order to maintain her right of habitation of the property or relinquish her use of the property. Mrs. Firmin asserted that the Louisiana Civil Code does not require a holder of the right of habitation to pay fees associated with either usufruct or ownership.

After a hearing, the trial court issued a judgment denying the Motion to Force Valerie Firmin to Pay the Mortgage, Reimburse the Succession for Mortgage Payments Already Made and in the Alternative for Rent. The trial court found there existed no legal authority to require Mrs. Firmin to pay the mortgage or to pay rent.

After the issuance of judgment, the Executrix filed a memorandum asserting that under the doctrine of limited liability to legatees, succession debts are charged |sagainst the encumbered property itself. Thus, she contends that if Mrs. Firmin accepted the legacy, she would be required to pay at least the interest portion of the mortgage notes without any right to reimbursement from the succession or the owners of the home. According to the Executrix, failure to pay the interest on the mortgage notes would require Mrs. Firmin to renounce her right of habitation. The Executrix also sought reimbursement from Mrs. Firmin for the mortgage notes paid by Mr. Firmin’s succession. Mrs. Firmin’s Reply Memorandum alleged that the Executrix did not differentiate between the responsibilities of universal and particular usufructuaries and legatees such as herself, and that the decedent’s debt does not attach to particular legatees. Additionally, she argued that the testamentary language specifically does not require a legatee to pay the mortgage debt.

The trial court issued its Final Judgment denying the motion to force Mrs. Firmin to pay the mortgage, and further denied the Executrix’s motion for a new [212]*212trial. The Executrix’s timely appeal followed.

The Executrix asserts that Mrs. Firmin, as a person with the right of “use and habitation,” has an affirmative obligation under the Louisiana Civil Code to pay the interest due on the mortgage while she enjoys exclusive use and habitation of the property. The Executrix does not appeal the trial court’s judgment that Mrs. Fir-min is not liable for the principal on the mortgage. If Mrs. Firmin does not pay the interest, the Executrix argues that the person must be required to terminate her use and habitation of the property.

STANDARD OF REVIEW

The standard of review of appellate courts in reviewing a question of law is “simply whether the court’s interpretive decision is legally correct.” Phoenix Assur. Co. of N.Y. v. Shell Oil Co., 611 So.2d 709, 712 (La.App. 4th Cir.1992). Furthermore, if the decision of the district court is based on an “erroneous interpretation or application of law rather than on a valid exercise of discretion,” the decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-72 (La.1983).

RIGHTS OF HABITATION AND USE

Mr. Firmin’s will explicitly directs that the legatee be granted “the right of use and habitation” of the home in which they had resided, subject to the conditions that she not vacate the premises in excess of six months, and that she care for the property as a prudent administratrix. Mr. Fir-min included in the will that Mrs. Firmin “shall be responsible to make all reasonable repairs, pay all taxes, and keep the improvements located on the property covered with adequate fire and extended coverage insurance.” The right of habitation is a “nontransferable real right of a natural person to dwell in the house of another.” La. C.C. art. 630. This right is “regulated by the title that establishes it.” La. C.C. art. 632. Thus, Mrs. Firmin’s right of habitation is governed by the above mentioned testamentary language which explicitly delineates her rights and responsibilities.

The Louisiana 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. 4th Cir.1979). Mr. Firmin’s will specified the legatee’s financial responsibilities concomitant to “use and habitation.” These are substantially similar to those obligations provided for in the Louisiana Civil Code, including | ¿responsibilities for reasonable repairs and taxes on the property. La. C.C. art. 636.3

Furthermore, the will details the formation of a trust, comprising the balance of the estate, in favor of Mr. Firmin’s major daughters. The care in drafting and attention to detail further supports Mrs. Fir-min’s assertion that Mr. Firmin intended only to bequeath to her the limited rights of use and habitation. See Succession of Cottrell v. Quirk, 05-841, pp. 2-3 (La.App. 3 Cir. 2/1/06), 921 So.2d 1235, 1238.

[213]*213The rights of both use and habitation are limited rights, providing for less than full enjoyment of immovable property. The right of use grants a personal servitude over the specified use of an estate. La. C.C. art. 639.4

In Aucoin v. Fontenot, 304 So.2d 754, 757 (La.App.

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Related

Succession of Bel
377 So. 2d 1380 (Louisiana Court of Appeal, 1979)
Kem Search, Inc. v. Sheffield
434 So. 2d 1067 (Supreme Court of Louisiana, 1983)
Succession of Crain
468 So. 2d 778 (Louisiana Court of Appeal, 1985)
Succession of Cottrell v. Quirk
921 So. 2d 1235 (Louisiana Court of Appeal, 2006)
Phoenix Assur. Co. of NY v. Shell Oil Co.
611 So. 2d 709 (Louisiana Court of Appeal, 1992)
Succession of Dougart
30 La. Ann. 268 (Supreme Court of Louisiana, 1878)
Aucoin v. Fontenot
304 So. 2d 754 (Louisiana Court of Appeal, 1974)

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Bluebook (online)
938 So. 2d 209, 2005 La.App. 4 Cir. 1218, 2006 La. App. LEXIS 1920, 2006 WL 2521599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-firmin-lactapp-2006.