Succession of Hackney

707 So. 2d 1302, 1998 WL 40376
CourtLouisiana Court of Appeal
DecidedFebruary 4, 1998
Docket97-859
StatusPublished
Cited by10 cases

This text of 707 So. 2d 1302 (Succession of Hackney) 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 Hackney, 707 So. 2d 1302, 1998 WL 40376 (La. Ct. App. 1998).

Opinion

707 So.2d 1302 (1998)

SUCCESSION OF Nora Gretchen Carlyon HACKNEY.
Paul Raymond Hackney, Executor— Appellant,
Lamar Russell, III, Mover—Appellee.

No. 97-859.

Court of Appeal of Louisiana, Third Circuit.

February 4, 1998.
Writ Denied April 24, 1998.

*1304 Gus Voltz, Jr., Alexandria, for Paul Raymond Hackney.

Gregory Scott Erwin, Alexandria, for Lamar Russell, III.

Before YELVERTON, WOODARD and AMY, JJ.

WOODARD, Judge.

Paul Raymond Hackney, the testator's third husband, appeals the trial court's annulment of his wife's will and the naming of Lamar Russell, III, the testator's only child, as executor of the estate, in his place. For the reasons assigned below, we reverse.

FACTS

Nora Hackney died on April 20, 1996. Her survivors include her son from her first marriage, Lamar Russell, III, (Russell), and her third husband, Paul Raymond Hackney (Hackney). She appointed Hackney as the testamentary executor in her October 29, 1991 statutory will. After the will was probated and Hackney was confirmed as the executor on August 2, 1996, Russell brought actions, on January 21, 1997, to contest it.

By judgment dated April 2, 1997, the court declared the entire will null and named Russell, upon his compliance with the law, as executor in Hackney's place. Hackney brought this devolutive appeal after his motion for new trial was denied.

ASSIGNMENTS OF ERROR
Hackney asserts that the trial court erred in:
1. Holding that there were two bequests in the second paragraph of the testatrix's will which canceled each other.
2. Holding that where the intent of the testator is not easily ascertained by reading one of several bequests, the entire will is null and void.
3. Refusing to accept testimony of the Notary who prepared the will, regarding testator's intent at the time of the signing of the will.
4. Removing the testamentary executor without following statutory procedure and without any evidence to support his removal.
LAW
This case involves a son's opposition to his mother's will, which if deemed valid, would benefit her surviving widower in community. In will contest cases, the factual findings of the trial court are afforded great weight and will not be disturbed on appeal in the absence of manifest error. In re Succession of Fellman, 96-1738 (La.App. 4 Cir. 8/6/97), 698 So.2d 477.

CANCELLATION OF BEQUESTS

Hackney argues that the trial court committed error by ruling that the following paragraph of the decedent's will contained two mutually exclusive bequests which canceled each other out, thus making the will invalid:

Second: I give, devise and bequeath unto my husband, PAUL RAYMOND HACKNEY, the disposable portion of my interest in and to the Community of Acquets and Gains which existed between us, subject to the right of usufruct of my husband, PAUL RAYMOND HACKNEY, until such time as he shall remarry or until his death, which I grant and confirm unto him.
(Emphasis added.)

Russell finds guidance in the case of Succession of Williams, 132 La. 865, 61 So. 852, 852 (1913), where five of David F. Williams' children filed suit to set aside his will based on the following bequests:

I leave and bequeath to my wife, Briget Farley, all I may be possessed of at the time of my death, she to have the usufruct during her life time provided she does not get married again and behaves herself....

(Emphasis added.) In that case, the Louisiana Supreme Court ruled as follows:

True, he bequeathed to his wife "all his property," and in the same sentence he bequeathed the usufruct to her. As to half, he sought to give that which did not belong to him. In the second place, he bequeathed the usufruct to her, something that, as a matter of course, could not be done. These legacies cannot be recognized, *1305 being contradictory and one destructive of the other.

(Emphasis added.) Id. at 854.

Our review of the Williams case reveals that it has been overruled by Jordan v. Filmore, 167 La. 725, 120 So. 275 (1929). Although Russell may argue, in retrospect, that it was overruled on other grounds, this case has never again been cited for the proposition that the two legacies in question are irreconcilable. Therefore, we review this assignment of error based on other principles.

According to La.Civ.Code art. 535, "Usufruct is a real right of limited duration on the property of another." The term usufruct comes from the word "usus," meaning the right to use, and "fructus," meaning right to the fruits. Giroir v. Dumesnil, 248 La. 1037, 184 So.2d 1 (1966). Russell points out that in conferring a usufruct, the testator intends to confer less than full ownership to the legatee. Succession of Goode, 425 So.2d 673 (La.1982).

In keeping with the rationale that "[a] disposition must be understood in the sense in which it can have effect, rather than that in which it can have none," La.Civ.Code art. 1713, we, therefore, consider how the testator's dispositions can be reconciled. According to Giroir, 248 La. 1037, 184 So.2d 1, full ownership consists of the "usus," the "fructus" and the "abusus," which are "united in the same person." Thus, full ownership includes usufruct, and the two terms do not necessarily contradict each other. In addition, we find that the testator's repetition of Hackney's name after the phrase "subject to the usufruct of my husband" is significant, since she already stated earlier in the paragraph that "I give, devise and bequeath unto my husband, PAUL RAYMOND HACKNEY, the disposable portion of my interest." We conclude that she repeated his name to refer to something other than the disposable portion of her interest in the community. Moreover, we also find that because the phrase "subject to the usufruct of my husband" is offset by commas, that phrase refers to something other than the first disposition.

Furthermore, had the decedent's succession proceeded intestate, Hackney would have received, at the very least, the usufruct according to La.Civ.Code art. 890. If we were to accept Russell's argument that the testator intended to confer less than full ownership to Hackney, then the will itself would be a useless document since the surviving spouse inherits the usufruct in a deceased spouse's estate by operation of law, unless there is an adverse testamentary disposition. Morgan v. Leach, 96-0173 (La. App. 1 Cir. 9/27/96), 680 So.2d 1381. It would be illogical for the testator to have gone through the trouble of writing a will and appointing her husband as executor without intending to give him more than the law allowed.

NULLITY OF WILL

It is well settled that the invalidity of a portion of a will does not invalidate the will in its entirety. Succession of Lissa, 195 La. 438, 196 So. 924 (1940). According to Succession of Fertel, 208 La.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jason Aldredge v. Justin Trevor Aldredge
Louisiana Court of Appeal, 2025
Succession of Cladie J. Wade
Louisiana Court of Appeal, 2021
Motter v. Laborde
256 So. 3d 1061 (Louisiana Court of Appeal, 2018)
Succession of Leavines
215 So. 3d 800 (Louisiana Court of Appeal, 2016)
Succession of Russell Leavines
Louisiana Court of Appeal, 2016
Succession of Henderson
191 So. 3d 9 (Louisiana Court of Appeal, 2016)
Normand v. VILLAGE OF HESSMER
18 So. 3d 801 (Louisiana Court of Appeal, 2009)
Mac Normand v. Village of Hessmer
Louisiana Court of Appeal, 2009
Cavazos v. SOUTHERN CONST. SUPPLY, INC.
999 So. 2d 355 (Louisiana Court of Appeal, 2008)
In Re Succession of Simonson
982 So. 2d 143 (Louisiana Court of Appeal, 2008)
Succession Soileau
918 So. 2d 563 (Louisiana Court of Appeal, 2005)
Succession of Attward Joseph Soileau
Louisiana Court of Appeal, 2005
In Re Succession of Helms
810 So. 2d 1265 (Louisiana Court of Appeal, 2002)
Kaufman v. Adrian's Tree Service, Inc.
800 So. 2d 1102 (Louisiana Court of Appeal, 2001)
Succession of Davis
799 So. 2d 1194 (Louisiana Court of Appeal, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
707 So. 2d 1302, 1998 WL 40376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-hackney-lactapp-1998.