Succession of Hammett

261 So. 2d 611, 261 La. 909, 1972 La. LEXIS 5748
CourtSupreme Court of Louisiana
DecidedMay 1, 1972
DocketNo. 51496
StatusPublished
Cited by2 cases

This text of 261 So. 2d 611 (Succession of Hammett) 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 Hammett, 261 So. 2d 611, 261 La. 909, 1972 La. LEXIS 5748 (La. 1972).

Opinion

SUMMERS, Justice.

In her last will and testament Anne Zemurray Hammett made bequests to James H. Atkinson and others. At her death, Samuel Zemurray III was appointed dative testamentary executor. In the course of administering the succession the executor filed a first tableau of distribution.

In the meantime, Atkinson died and Emile J. Drueil, Jr., was appointed administrator of his succession, and, as such, he has filed an opposition to the first tableau of distribution which is the subject of this litigation.

The opposition was denied and the tableau of distribution was homologated by the trial judge. This judgment was affirmed by the Fourth Circuit. 247 So.2d 249. We granted certiorari on application of the administrator of Atkinson’s succession. 259 La. 54, 249 So.2d 200.

Principally, the opposition at this stage of the proceeding involves the interpretation of two wills left by decedent Anne Zemurray Hammett.

The first will reads as follows :

April '30, 1959
This is my last will and testament. I hereby revoke any prior wills and also the revokable trust entered into by myself and the Hanover Bank. I leave to May Fletcher $30,000. I leave to Margaret Ann Segleau $5,000.
The remainder of my estate I leave my husband Donald Hammett 50% and to my brother, Sam Zemurray 50%.
Ann Pickering Zemurray Hammett

The second will reads as follows:

Jan. 30, 1961
75% of all my monetary real estaste (sic) and stock holdings to Sam Zemurray III with James H. Atkinson as trustee to be held in trust at Sam’s discretion until Sam is 35 years old.
25% of all my monetary, real estaste (sic) and stock holding to James H. Atkinson.
Donald Albert Hammett is no longer my husband and I leave him nothing.
Anne Zemurray Hammett

A third document dated January 4, 1961, filed in the record, which has not been probated, appears to have been drawn by the testatrix as her will. This document, lacking testamentary language, could not serve as a will, but it is referred to for the effect it may have as an aid in interpreting the contested wills.

January 4, 1961

To Whom it may concern,

75% of my monetary, real estate and stock holdings to Sam Zemurray III, with James Howard Atkinson as trustee to be held in trust at James H. Atkin[914]*914son’s discretion until Sam. Zemurray III is thirty-five years of age.
10% of my monetary, real estaste (sic), and stock holdings to Donald Albert Hammett, my husband as long as he remains my husband. In the absence of which it goes to Sam Zemurray III.
10% of my monetary, real estate and stock holdings to Gaston Lanaux Jr., my half brother, to be held in trust by James Howard Atkinson at the discretion of James Howard Atkinson until Gustave Lanaux Jr. is thirty-five years of age.
21/¿% of my monetary, real estaste (sic) and stock holding to my mother Mrs. Margaret Pickering Zemurray. My furniture to Mrs. Margaret Pickering Zemurray.
2i^ % of my monetary, real estaste (sic) and stock holdings to James Howard Atkinson to be dispensed in accordance with a list provided by me.
3^2 of my jewelry to Cecile Airy Dink-ins.
3/¿ my jewelry to Patricia Shelton Sphorer.
My clothing to Sonia Weinberger Smith.
1/2 of my personal effects to Ruth Boyd.
of my personal effects to Mary Louise Miller.
Anne Zemurray Hammett

After decedent’s death on September 26, 1961 Drueil, in his capacity as administrator of Atkinson’s estate, opposed the probate of the will of January 30, 1961. It was contended that the document did not indicate that the writer intended to make a testamentary disposition. On appeal from a trial court judgment ordering the document probated, the Court of Appeal affirmed, holding that the language in the last sentence of the will, “I leave him nothing”, clearly indicates the necessary testamentary intent. 183 So.2d 416.

The inventory of the succession assets was completed on March 27, 1962. It consists of municipal bonds, cash in banks, stock, jewelry, clothing, furniture and household effects. The bulk of decedent’s estate consists of bonds ($101,841.50), the remainder of the Louisiana assets consisting of stocks, cash, jewelry, clothing, furniture and household effects ($8,814.50). The inventory also discloses that decedent had established a trust on April 21, 1959 with a value of several hundred thousand dollars. Hanover Bank and Trust Company, a New York Corporation, is designated as trustee. The corpus of the trust consists of stocks, bonds and policies of life insurance, all of which are in the State of New York.

Thereafter on May 5, 1967 the opponent here filed a motion to remove the executor for failure to obtain control of the pro[916]*916ceeds of the trust in the hands of the trustee, Hanover Bank and Trust Company in New York, the contention being that the will of April 30, 1959 revoked "the revokable trust entered into by . . . (testatrix) and the Hanover Bank.”

The executor responded by pointing out that under the law of New York, and in conformity with the specific provisions of the settlor’s inter vivos trust, the trust was not revoked by the will.

Without deciding other questions, the Fourth Circuit affirmed the trial court dismissal of the motion to remove the executor, holding the executor had done nothing to give cause for his removal. 228 So.2d 696.

The instant opposition to the tableau followed on April 25, 1967. We granted review on the contention that the language of the will of January 31, 1961, “monetary, real estaste (sic) and stock holdings,” should have included bonds, whereas the tableau excluded bonds in computing the legacy to Atkinson of “25% of all my monetary, real estaste (sic) and stock holdings

These articles of the Civil Code are pertinent to the interpretation of wills:

Article 1712: In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testatment.
Article 1715: When, from the terms made use of by the testator, his intention can not be ascertained, recourse must be had to all circumstances which may aid in the discovery of his intention.
Article 1716: A mistake in the name of an object bequeathed is of no moment, if it can be ascertained what the thing was which the testator intended to bequeath.

As presented, decision of the issue hinges upon the meaning of the words “monetary” and “stocks” in the context of the recited facts. The word “monetary” has to do with money, or pecuniary things. It is synonomous with “financial”, which in its generic sense pertains to things of finance. Webster’s New International Dictionary (2d ed. 1955).

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Related

In Re Succession of Parham
755 So. 2d 265 (Louisiana Court of Appeal, 1999)
Succession of Moran
479 So. 2d 350 (Supreme Court of Louisiana, 1985)

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Bluebook (online)
261 So. 2d 611, 261 La. 909, 1972 La. LEXIS 5748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-hammett-la-1972.