Succession of Green v. Mears

499 So. 2d 637, 1986 La. App. LEXIS 8681
CourtLouisiana Court of Appeal
DecidedDecember 10, 1986
DocketNo. 85-1039
StatusPublished

This text of 499 So. 2d 637 (Succession of Green v. Mears) 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 Green v. Mears, 499 So. 2d 637, 1986 La. App. LEXIS 8681 (La. Ct. App. 1986).

Opinion

PER CURIAM.

Although never married to each other, Fannie F. Green and George L. Mears, Sr. lived together ostensibly as husband and wife from 1970 until she died in 1983. The collateral heirs of Mrs. Green have taken this appeal from an adverse judgment in their action under LSA-C.C. art. 1481 to [638]*638annul and reduce donations mortis causa made by the testator to defendant Mears. The trial judge found that the relationship of the two parties met the jurisprudential definition of “concubinage,” but not that of “open concubinage,” and rejected their demands. We affirm.

The governing article of the Louisiana Civil Code, LSA-C.C. art. 1481, provides in pertinent part as follows:

“Those who have lived together in open concubinage are respectively incapable of making to each other, whether inter vivos or mortis causa, any donation of immovables; and if they make a donation of movables, it can not exceed one-tenth part of the whole value of their estate.”

Historically, our courts have insisted that for Article 1481 to be applicable, the party attacking the donation must establish both that the relationship between donor and donee was “concubinage” and also that it was “open.” Concubinage is the status or relationship in which a man and woman live together like husband and wife without being legally married. Open concubinage exists when the illicit relationship is not disguised, concealed, or made secret by the parties. Efforts by the parties to hide the illicit relationship are strong indications that it is not open. Succession of Jahraus, 114 La. 456, 38 So. 14 (1905); Thomas v. Thomas, 440 So.2d 879 (La.App. 2d Cir.1983), writ denied, 443 So.2d 597 (La.1988).

The facts of this case are very similar to those in Succession of Lannes, 187 La. 17, 174 So. 94 (1937), wherein our Supreme Court refused to apply Article 1481 where the unmarried parties had concealed their illicit relationship from the public by holding themselves out as being husband and wife. Although the Lannes case was settled while a rehearing was pending, it has since been cited as authority in numerous decisions of our courts of appeal and also by the Supreme Court. Miller v. LaFrance, 359 So.2d 328 (La.App. 4th Cir.1978), writ denied, 362 So.2d 580 (La.1978); Succession of Washington, 140 So.2d 906 (La.App. 4th Cir.1962); Succession of Moore, 232 La. 556, 94 So.2d 666 (1957); Succession of Cervini, 228 La. 1054, 85 So.2d 818 (La.1956); Manning v. Harrell, 59 So.2d 389 (La.App. 2d Cir.1952).

It is well settled that whether or not the illicit relationship between the parties was concubinage, and if so, whether it was open are factual matters, and the trial judge’s determination thereof should not be reversed on appellate review unless they are manifestly in error or clearly wrong. Succession of Moore, supra; Gray v. Gray, 451 So.2d 579 (La.App. 2d Cir.1984), writ denied, 457 So.2d 13 (La.1984); Succession of Lamy, 454 So.2d 290 (La.App. 2d Cir.1984), writ denied, 458 So.2d 477 (La.1984).

As stated, the district court found from the evidence that the parties’ concubinage was not open because, with but few exceptions, they had concealed the fact that they were not married by holding themselves out to the public as being husband and wife. From our review of the record we cannot say the trial judge was manifestly in error or clearly wrong. Accordingly, the judgment of the district court is affirmed at appellants’ cost.

Attached as an appendix is a copy of the trial judge’s written reasons for judgment.

AFFIRMED.

APPENDIX

HOOD, Judge.

Fannie Frances Green died May 23, 1983, leaving a will dated September 16, 1974. In her will, she bequeathed all of her property to George L. Mears, Sr. The decedent’s surviving brothers, sisters, nephews and niece have filed this suit seeking the annulment of the will insofar as it attempts to transfer immovable property to Mears, and to reduce the donation of movable properties so as not to exceed one-tenth (l/10th) of the value of the entire estate. The basis of the suit is the allegation that for many years prior to her death, the decedent lived in open concubinage with the defendant Mears.

[639]*639Civil Code Article 1481 states that those who have lived together in open concubinage are respectively incapable of making to each other any donation of immovables, and if they make a donation of movables, it cannot exceed one-tenth part of the whole value of their estate.

The resolution of this dispute therefore lies in the definition of the term “open concubinage”, and the application of that definition to the facts of the case.

The courts have historically insisted that a definite meaning be ascribed to both the words “open” and “concubinage”, before finding that the legal requisites of open concubinage have been proven.

Concubinage depicts a state of affairs in which a man and woman exercise with respect to each other the rights and privileges of marriage, a relationship in which they live together as husband and wife without being legally married. It is crucial to the definition of open concubinage to note that it depicts a status or relationship, rather than an act or series of acts.

The courts have also ascribed a definite and distinct meaning to the term “open”. Thus, it is not enough that concubinage be proven. The courts have additionally required that concubinage be “open.” Concubinage is said to be open when the illicit relationship is not disguised, concealed or made secret by the parties. Concubinage is open when the parties involved avow their illicit relationship by words or conduct. A finding of “openness” clearly does not require that the parties verbally acknowledge their illicit relationship. However, efforts taken by the parties to conceal their illicit relationship militates against a finding of openness.

“In Succession of Jahrus, 114 La. 456, 38 So. 417, this court had occasion to inquire into the meaning of ‘open concubinage.’ The court said that the word ‘concubinage’ describes a status and not mere acts of fornication or adultery however frequent or even habitual; that the word ‘open’ means free from concealment, reserve or disguise, not secret, but plain and above-board; that ‘open concubinage’ means one that is plain and above board, without secret, reserve or disguise, not merely one that is notorious; that ‘the concubinage should be so public as to be practically avowed, not necessarily by word, but 'at any rate by unambi-gious, unequivocal conduct; that the relations must be such that, when sought to be made the basis of judicial action, no odious inquisitions might be necessary, and no nice poising of testimony.’ ” Jones v. Kyle, 168 La. 728, 123 So. 306.

Fannie Green was seventy-five years of age on the date of her death, she having been born January 17, 1908. Her second husband, Clarence Green, died in February, 1969. Thereafter, she and Mears met each other, and in 1970, he moved into her home. He lived with her continuously until her death in 1983. When they began living together, she was sixty-two years of age, and he was approximately sixty-five years of age. Both were of modest means. Both lived on pensions. Fannie Green’s pension came from a railroad company for whom her deceased husband had worked.

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Related

Succession of Washington
140 So. 2d 906 (Louisiana Court of Appeal, 1962)
Manning v. Harrell
59 So. 2d 389 (Louisiana Court of Appeal, 1952)
Thomas v. Thomas
440 So. 2d 879 (Louisiana Court of Appeal, 1983)
Succession of Moore
94 So. 2d 666 (Supreme Court of Louisiana, 1957)
Miller v. LaFrance
359 So. 2d 328 (Louisiana Court of Appeal, 1978)
Gray v. Gray
451 So. 2d 579 (Louisiana Court of Appeal, 1984)
Jones v. Kyle
123 So. 306 (Supreme Court of Louisiana, 1929)
Succession of Lannes
174 So. 94 (Supreme Court of Louisiana, 1936)
State ex rel. Hill v. Judge of Civil District Court
38 So. 14 (Supreme Court of Louisiana, 1905)
Succession of Jahraus
38 So. 417 (Supreme Court of Louisiana, 1905)
Succession of Cervini
84 So. 2d 818 (Supreme Court of Louisiana, 1955)
Succession of Lamy
454 So. 2d 290 (Louisiana Court of Appeal, 1984)
Freeman v. State
85 So. 2d 818 (Mississippi Supreme Court, 1956)

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Bluebook (online)
499 So. 2d 637, 1986 La. App. LEXIS 8681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-green-v-mears-lactapp-1986.