Succession of Goode

425 So. 2d 673
CourtSupreme Court of Louisiana
DecidedDecember 17, 1982
Docket81-C-1114
StatusPublished
Cited by9 cases

This text of 425 So. 2d 673 (Succession of Goode) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Succession of Goode, 425 So. 2d 673 (La. 1982).

Opinion

425 So.2d 673 (1982)

SUCCESSION OF Ronald Bruce GOODE.

No. 81-C-1114.

Supreme Court of Louisiana.

March 26, 1982.
On Rehearing December 17, 1982.
Rehearing Denied February 11, 1983.

*675 Bennett L. Politz of Booth, Lockard, Politz & LeSage, Shreveport, for defendant-applicant.

John B. Hussey of Smitherman, Lunn, Hussey & Chastain, Truly W. McDaniel of Love, Rigby, Dehan, Love & McDaniel, Shreveport, for plaintiff-respondent.

LEMMON, Justice.

This case involves the validity of a testamentary disposition. The issue is whether the contested legacy constituted a prohibited substitution.

The testator died in 1978, leaving no ascendants or descendants and being survived by a half brother and the descendants of a predeceased half sister. He left an olographic will, which provided for several specific dispositions, but no residuary legacy. The contested legacy provided as follows:

"Fifth: All oil & gas royalty interest payments owned by me shall be paid to Pauline Egbert Parker for as long as she might live. After her death the amount of any payments shall be equally divided between my nieces and nephews and Linda Cosby Paine."[1]

After the will was probated, the opponents of the will filed a petition to annul the testament. The case was tried on stipulated facts, and the trial court held that the legacy was a prohibited substitution. The court of appeal affirmed. 395 So.2d 875.

We granted certiorari to review those holdings. 401 So.2d 359.

C.C. Art. 1520 prohibits substitutions generally as follows:

"Substitutions are and remain prohibited, except as permitted by the laws relating to trusts.
"Every disposition not in trust by which the donee, the heir, or legatee is charged to preserve for and to return a thing to a third person is null, even with regard to the donee, the instituted heir or the legatee."

As noted in the Report by the Louisiana State Law Institute to Accompany the Proposed Louisiana Trust Code[2], a prohibited substitution must contain (1) a double disposition in full ownership of the same thing to persons named to receive it, one after the other, (2) a charge to preserve and transmit the thing, imposed on the first beneficiary for the benefit of the second, and (3) the establishment of a successive order that causes the thing to leave the inheritance of the burdened beneficiary and to enter into the patrimony of the substituted beneficiary. See also Baten v. Taylor, 386 So.2d 333 (La.1979). Nevertheless, the disposition of a usufruct is not prohibited, nor is the disposition of successive usufructs. See C.C. Art. 1522 and 546.

In the present case the proponents of the will contend there was no express double disposition in full ownership and no express charge on the first beneficiary to preserve and transmit the property to a second beneficiary. They urge that we construe the testator's words as intending to separate his royalty interest in the property from the payments attributable to that interest, so that either (1) he intended to bequeath the payments to named beneficiaries by successive usufructs, while allowing the naked ownership of the royalty interest to pass by intestacy, or (2) he intended to bequeath a life usufruct to Pauline Parker and the naked ownership to the other named legatees.

*676 On the other hand, the opponents contend there were no words such as "use", "usufruct", "naked ownership", "enjoyment" or "use and benefit" indicative of the testator's intention to create the institutions of usufruct and naked ownership. Further citing the principle that a testator is presumed to have intended to dispose of all of his property, the opponents argue against construing the disposition as creating successive usufructs, while allowing the naked ownership to pass by intestacy.

When a landowner or servitude owner grants a mineral lease on property which is subject to a previously existing royalty interest and the lessee obtains production from the leased property, the royalty owner participates in the payments for minerals produced under the lease. See R.S. 31:80, codifying prior jurisprudence. But when the lease expires, the royalty interest remains in existence.

Although a layman, the testator (whose royalty income averaged more than $10,000 monthly) was undoubtedly aware of the difference between the royalty interest which he had acquired in one transaction and the payments he subsequently received, on account of that ownership, after the property was leased and production was obtained. Significantly, in drafting his will without benefit of counsel, he used the word "payments", and the deliberate use of that word suggests an intent to distinguish between the legal right he had originally acquired (royalty interest) and the income which subsequently flowed from that right. He could have left his royalty interest to Pauline Parker, thereby giving her both the right and the income currently flowing therefrom, but he chose to give her the royalty payments. While this disposition could reasonably be construed as a legacy of the royalty interest itself, it also could reasonably be construed as a legacy to Pauline Parker of the payments made on account of the royalty interest and a legacy to the other named legatees of the ownership of the royalty interest itself.[3]

In interpreting testaments, courts should principally seek to ascertain the intention of the testator, without departing from the proper signification of the testamentary terms. C.C. Art. 1712. Furthermore, when testamentary language is subject to two reasonable interpretations, courts should choose the interpretation which validates the will rather than the one which invalidates it, as long as that interpretation does not violate the testator's intent.

Here, the testator clearly intended for Pauline Parker to receive the payments made on account of his royalty interest in the property until her death and for the other named legatees to receive the payments thereafter in equal proportions. The law permitted him to accomplish this intention by giving the usufruct to one and the naked ownership to the others. While his uncounseled language did not expressly provide for the establishment of the legal institutions of usufruct and naked ownership, neither did the language expressly provide that both sets of legatees were to receive the royalty interest in full ownership or that the first legatee was to preserve it for the other legatees. This disposition can therefore be interpreted with equal reasonableness as the bequest of a life usufruct of the royalty interest to Pauline Parker and of the naked ownership to the other named legatees, and that interpretation accords completely with the testator's apparent intent, while making the testament valid. Accordingly, we interpret the testamentary disposition as establishing the enforceable legal institutions authorized by C.C. Art. 1522.

*677 In cases such as the present one, an appropriate solution is to give effect to the testamentary disposition by construing it as a valid usufruct-naked ownership legacy, rather than as a prohibited substitution, when the testator does not expressly outline all of the details of a prohibited substitution.[4] E. Nabors, An Analysis of the Substitution-Usufruct Problem under Articles 1520 and 1522 of the Louisiana Civil Code, 4 Tul.L.Rev. 603 (1930); A. Yiannopoulos, 3 Louisiana Civil Law Treatise-Personal Servitudes § 15 (2d ed. 1978).

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