Succession of Gilbert

668 So. 2d 1212, 95 La.App. 5 Cir. 426, 1996 La. App. LEXIS 213, 1996 WL 33051
CourtLouisiana Court of Appeal
DecidedJanuary 30, 1996
DocketNo. 95-CA-426
StatusPublished
Cited by5 cases

This text of 668 So. 2d 1212 (Succession of Gilbert) 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 Gilbert, 668 So. 2d 1212, 95 La.App. 5 Cir. 426, 1996 La. App. LEXIS 213, 1996 WL 33051 (La. Ct. App. 1996).

Opinions

[gCANNELLA, Judge.

Judgment was rendered in this succession proceeding distributing the estate of James A. Gilbert (decedent) between his wife, Fern LeBlane Gilbert (Fern Gilbert), and his two daughters from a prior marriage, Carole Gilbert Casey and Patti Gilbert Theriot (the Gilbert daughters). All parties appeal. For the reasons which follow, we affirm in part, reverse in part and remand.

Decedent had been married to Ada Naomi Gilbert and two children were born of this union, the Gilbert daughters. Ada Naomi Gilbert died on August 3, 1985, leaving the disposable portion of her estate to decedent and the forced portion to her children, subject to a life usufruct in favor of decedent.

On September 2, 1989, decedent married Fern Gilbert. He died on October 11, 1991 after a prolonged battle with cancer and diabetes, during which he was hospitalized repeatedly over the last year of his life. While hospitalized on February 5,1991, decedent wrote his Last Will and Testament. The will was | .-¡submitted for probate. In the will, decedent left a lifetime usufruct over his entire estate, both separate and community property, to his wife, Fern Gilbert. He bequeathed to the Gilbert daughters the naked ownership of his interest in his residence at 4304 Purdue Drive, Metairie, Louisiana. He left the remainder of his estate to Fern Gilbert in full ownership. He also appointed Fern Gilbert as executrix of his estate.

On the same day the will was executed, February 5, 1991, decedent also executed a power of attorney appointing Fern Gilbert as his attorney in fact, with very broad powers, including the power to make donations of his property to such persons as she may select, including herself. It was stipulated by all parties that during decedent’s lifetime, he made donations to the Gilbert daughters totaling $78,200, or $39,100 each, and to Fern Gilbert totaling $78,139.78.

On December 16, 1991, after presenting the February 5, 1991 will for probate, Fern Gilbert was confirmed as executrix of decedent’s succession. On February 20, 1992, the Gilbert daughters brought an action to annul decedent’s will and a separate action against Fern Gilbert seeking possession of their inheritance from their mother’s estate. On September 1, 1993, Fern Gilbert and the Gilbert daughters reached a settlement concerning the mother’s estate in which certain movables, including $33,000 cash, were transferred to the Gilbert daughters. Subsequently, on March 4, 1994, following the decision by the Louisiana Supreme Court in [1215]*1215Succession of Lauga, 624 So.2d 1156 (La. 1993)1, the Gilbert daughters filed an amended petition seeking their forced portion from 14their father’s estate.

The main issues presented for trial here in the succession proceedings, after stipulations were entered, were: (1) whether a $67,000 alleged donation to Fern Gilbert by decedent was a valid donation; (2) whether inter vivos donations to the Gilbert daughters and Fern Gilbert should be fictitiously added back into the succession to determine the forced portion to which the Gilbert daughters were entitled; and (3) whether the Gilbert daughter’s forced portion could be legally burdened by a life usufruct in favor of Fern Gilbert or, put another way, whether such a usufruct improperly impinged on their legitime.

In rendering judgment on December 14, 1994, the trial court held that the $67,000 donation to Fern Gilbert by decedent was a valid inter vivos donation. The trial court also held that the inter vivos donations made by decedent should not be added to the estate mass in determining the amount of the forced portion. The trial court held that the usufruct in favor of Fern Gilbert over the Gilbert daughter’s forced portion was an impermissible impingement on their legitime and was thus invalid. Finally, the trial court determined, by calculating estate assets and liabilities, that the forced portion to which the Gilbert daughters were entitled was less than the value of the house which they were bequeathed by their father and thus the disposition of the remainder of his estate to Fern Gilbert did not impinge on their legi-time. Both Fern Gilbert and the Gilbert daughters appealed.

The Gilbert daughters challenge both factual and legal determinations by the trial court. While we find legal error in the trial court’s judgment, we cannot conclude the trial court’s factual determinations were clearly wrong or manifestly erroneous.

It is well settled that, on appellate review of a factual determination, the reviewing court may not set aside the trier’s findings of fact in the absence of | ..¡manifest error or unless he is clearly wrong. Also, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux, Do-mingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, 283 So.2d 716 (La.1973). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether his conclusion was a reasonable one. Stobart v. State through DOTD, 617 So.2d 880 (La.1993). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra.

In the instant ease, the trial court made three factual determinations, assigned as error by the Gilbert daughters, which we find, based on the record before us, were not clearly wrong or manifestly erroneous. First, the Gilbert daughters argued that the trial court erred in finding that decedent made a valid inter vivos donation to his spouse in the amount of $67,000.2

Decedent had approximately $106,000 in cash, including monies on deposit in a cheeking account and in certificates of deposit (CD) at various institutions. Fern Gilbert was not named on any of the certificates of deposit. In February of 1991, while decedent was hospitalized, he gave his spouse, Fern Gilbert, a power of attorney. According to her testimony, decedent told her to [1216]*1216close all of his accounts and to open new accounts in her name alone. She argues that decedent’s expressions to her, combined with the execution of the power of attorney in her favor expressly granting her the power to make donations to herself, evidence a donation of those funds from decedent to her. |6Upon withdrawing the funds and placing them in accounts in her name, the donation was complete.

The Gilbert daughters argue that Fern Gilbert’s self serving testimony of their father’s intent does not suffice to meet her burden of proving a donation. If that were the only evidence we might agree with the Gilbert daughters.

A donation inter vivos is an act by which the donor irrevocably divests himself of the thing given, in favor of the donee who accepts it. La.C.C. art. 1468. The Civil Code prescribes the form requirements for donations inter vivos and permits the inter vivos donation of a corporeal movable by manual gift, that is, the giving of the corporeal movable effects, accompanied by a real delivery. La.C.C. art. 1539. The credit right evidenced by a CD is an incorporeal movable and not subject to manual gift. Arnold v. Fenno, 94-1658 (La.App. 4th Cir. 3/16/95), 652 So.2d 1078.

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Bluebook (online)
668 So. 2d 1212, 95 La.App. 5 Cir. 426, 1996 La. App. LEXIS 213, 1996 WL 33051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-gilbert-lactapp-1996.