Succession of Gallo

845 So. 2d 1136, 2002 La.App. 5 Cir. 1240, 2003 La. App. LEXIS 1202, 2003 WL 1969280
CourtLouisiana Court of Appeal
DecidedApril 29, 2003
DocketNo. 02-CA-1240
StatusPublished

This text of 845 So. 2d 1136 (Succession of Gallo) 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 Gallo, 845 So. 2d 1136, 2002 La.App. 5 Cir. 1240, 2003 La. App. LEXIS 1202, 2003 WL 1969280 (La. Ct. App. 2003).

Opinion

LMARION F. EDWARDS, Judge.

Appellants appeal the trial court’s ruling that language in a statutory will was ambiguous, thereby requiring parole evidence to determine the testator’s intent. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 25, 1998, Louis Anthony Gallo, M.D. (“Dr.Gallo”), executed a Last Will and Testament that was prepared and notarized by his attorney, Joseph Bertrand. Dr. Gallo’s will provided that his current wife, Mary Lydia Fabacher Gallo (“Mrs.Gallo”), be appointed as Executrix of his estate. The will further made a number of specific bequests to Mrs. Gallo as well. Appellants, Cynthia Gallo Hull and Louis Anthony Gallo, Jr., were Dr. Gallo’s children from a previous marriage. The will specifically stated that they should only inherit under the forced heirship provisions of Louisiana law. At the time that Dr. Gallo’s will was drafted, both Hull and Gallo, Jr. had attained the age of majority.

| ¡After the death of Dr. Gallo on August 16, 2001, Mrs. Gallo filed a Petition To Present Notarial Will And For Appointment Of Executrix in the Twenty-Fourth Judicial District Court for the Parish of Jefferson, where Dr. Gallo was domiciled, on October 12, 2001. Cynthia Gallo Hull (“Hull”), filed an Opposition to Probate of Testament on October 19, 2001, alleging that the will was invalid for failure to comply “with the necessary formalities of a Statutory Will,” and that there were several inconsistencies that further compromised the integrity of the will. Hull later filed a Motion To Dismiss her opposition, which was granted by the court on February 22, 2002. On February 19, 2002, Hull filed a Petition For Possession, and later filed a Motion To Traverse Detailed Descriptive List filed by Mrs. Gallo on April 26, 2002.

On June 26, 2002, Mrs. Gallo, as Executrix, filed a Petition For Declaratory Judgment in which she alleged that Dr. Gallo’s will contained a typographical error that rendered the testament ambiguous. Specifically, Mrs. Gallo argued that a section of the will pertaining to “General Bequests” that read, “all residential property, both separate and community, movable or immovable shall go to my beloved wife, Mary Lydia Fabacher Gallo” (Emphasis added), was a typographical error that should have been “all residual property ...” (Emphasis added). Mrs. Gallo asserted that the sentence in question, if not determined to address the residual portion of Dr. Gallo’s estate, would require the residual portion of the estate to fall into intestacy, since no other language in the will provided for a disposition of the residual portion of Dr. Gallo’s estate.

[1138]*1138On September 11, 2002, the trial court heard Mrs. Gallo’s Petition For Declaratory Judgment, and determined that certain language in the testament was ambiguous. The court heard parole evidence from Joseph Bertrand, the ^attorney who drafted the will,1 then granted Mrs. Gallo’s Petition for Declaratory Judgment, specifically finding “that the terms (sic) ‘residential’ as used in the last sentence of paragraph 3.2 of the Last Will and Testament of the decedent dated March 25,1998 was a typographical error and was intended to be the word ‘residual.’ ” The court further found Mrs. Gallo to be the sole residuary legatee of the estate of Dr. Gallo.

Appellants timely filed the present appeal.

LAW AND ANALYSIS

In their sole assignment of error, Appellants assert that the trial court erred when it held that Dr. Gallo’s testament was ambiguous and therefore required parole evidence to ascertain Dr. Gallo’s intent.

The Supreme Court in Succession of Williams,2 reviewed the law on will interpretation as follows:

The intent of the testator is the paramount consideration in determining the provisions of a will. La. Civ.Code art. 1712 [present La. Civ.Code art. 1611]. When a will is free from ambiguity, the will must be carried out according to its written terms, without reference to information outside the will. Id. However, when a provision in a will is subject to more than one equally reasonable interpretation, then the court may consider all circumstances existing at the time of the execution of the will (and not just the language of the will) which may aid in determining the intent of the testator. La. Civ.Code art. 1715 [present article 1611]. [Italics added].

The provision in Dr. Gallo’s will at issue is found in Section Three, paragraph 8.2, and reads, “All residential property, both separate and community, movable or immovable shall go to my beloved wife Mary Lydia Fabacher Gallo.” (Emphasis added).

Appellants argue that the term “movable residential property” refers to things such as “mobile homes,” and RV’s. It is noted, however, that the | ¿record is devoid of any indication that the estate contained such items, either at the time the will was drafted, or at the time of Dr. Gallo’s death. In addition, our own review of Louisiana jurisprudence has not produced a single reference to the term “movable residential property.”

While acknowledging the possibility that the will could convey separate and community immovable property, Mrs. Gallo contends that “residential movable property” is a term that is ambiguous at best, and disputes Appellants’ explanation of the term as written. Mrs. Gallo further contends that even if the term “movable residential property” were interpreted to mean “movables located at the residence,” then a question would still exist as to the extent of the items included in the definition, thereby rendering the bequest ambiguous and requiring parole evidence to determine Dr. Gallo’s intent.

When a provision in a will is not clear, a court must take into account entire context of the will.3 In this case, Mrs. Gallo argues that several portions of the will express Dr. Gallo’s intent that his children not inherit any portion of his es[1139]*1139tate. Mrs. Gallo asserts that the first example of this intent can be seen in paragraph 2.5 of the will in which Dr. Gallo indicates that should Mrs. Gallo predecease him, it is his intention to leave his portion of the community to her children, and not to the Appellants. Mrs. Gallo also references Section Three of the Will, in which Dr. Gallo indicates his intent to give only the forced portion of his estate to Cynthia Gallo Hull and Louis Anthony Gallo, Jr., as provided under the definition of incapacity in Section 3.1 of the will. Mrs. Gallo concludes that to put Appellants into possession of the residual portion of Dr. Gallo’s estate is a | ficlear contradiction to the wishes expressed by Dr. Gallo in the remainder of his will.

Conversely, Cynthia Gallo Hull and Louis Anthony Gallo, Jr. argue that certain statements in the will could be interpreted to mean that Dr. Gallo intended for them to inherit part of his estate. They refer to paragraph 5.2 of the testament that states, “Any gifts that I have made to any of my two children named in paragraph 1.1 during my lifetime, will be considered as an extra portion and not subject to collation.” Appellants conclude that Dr.

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Related

Matter of Succession of Williams
608 So. 2d 973 (Supreme Court of Louisiana, 1992)
Succession of Fertel
23 So. 2d 234 (Supreme Court of Louisiana, 1945)
Succession of Blakemore
43 La. Ann. 845 (Supreme Court of Louisiana, 1891)
Estate of Doucet v. Doucet
643 So. 2d 882 (Louisiana Court of Appeal, 1994)

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Bluebook (online)
845 So. 2d 1136, 2002 La.App. 5 Cir. 1240, 2003 La. App. LEXIS 1202, 2003 WL 1969280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-gallo-lactapp-2003.