Succession of Hendrick

430 So. 2d 734
CourtLouisiana Court of Appeal
DecidedMarch 28, 1983
Docket15299-CA
StatusPublished
Cited by5 cases

This text of 430 So. 2d 734 (Succession of Hendrick) 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 Hendrick, 430 So. 2d 734 (La. Ct. App. 1983).

Opinion

430 So.2d 734 (1983)

SUCCESSION OF Lois May Smith HENDRICK.

No. 15299-CA.

Court of Appeal of Louisiana, Second Circuit.

March 28, 1983.
Writ Denied June 3, 1983.

*735 Tucker, Jeter & Jackson by Robert McLean Jeter, Jr., Shreveport, for appellee, Florence Hendrick Wray.

Cook, Yancey, King & Galloway by Sidney E. Cook and William L. Murdock, Shreveport, for appellee, Dr. Robert S. Hendrick.

James A. Van Hook, Shreveport, for appellants, Dr. John Alexander Hendrick, Jr., and Mrs. May Virginia Hendrick Chidlow.

Smitherman, Lunn & Chastain by Merritt B. Chastain, Jr., Shreveport, for appellee, Louisiana Bank & Trust Co.

Before PRICE, JASPER E. JONES and NORRIS, JJ.

JASPER E. JONES, Judge.

In this succession proceeding two heirs, Florence Hendrick Wray and Dr. Robert Smith Hendrick, opposed a proposed Tableau of Distribution on grounds that the legacy in the decedent's will impinged on their legitime and that collation was due from another heir. The decedent's other children, May Hendrick Chidlow, the legatee, and Dr. John Hendrick, Jr., appeal a judgment declaring the legacy invalid, ordering collation by all heirs and directing that the estate of Lois May Smith Hendrick be divided equally among her four children. Robert Hendrick and Wray answered the appeal.

Chidlow and John Hendrick, Jr., referred to jointly as "the proponents," set out five *736 assignments of error.[1] Wray and Robert Hendrick, referred to jointly as "the opponents," set out two assignments of error.[2] These assignments raise the following fundamental issues:

1) is a dispensation from collation made in an olographic testament valid;
2) is the legacy in the decedent's will invalid under C.C. art. 1510 or because it impinges on the legitime; and
3) are the inter vivos donations by decedent to her grandchildren attributable to their parents for the purpose of determining whether collation is due.

The Facts

The facts were stipulated by the parties.

Lois May Smith Hendrick, the decedent, was born in 1889. She married Dr. John Alexander Hendrick in 1911. Four children were born of this marriage, John, Jr., in 1912, May in 1916, Florence in 1919 and Robert in 1923. These children survived decedent as her only forced heirs. Dr. John Hendrick, Sr., died in 1938.

Beginning in 1941 the decedent made a series of gifts to her children. Between 1941 and 1979 the decedent made equal gifts to each of her children with a total value of $1,308,958.27.[3]

In 1973 the decedent made gifts not included in the total above with a value of $503,024.00. These gifts were distributed ¼th to decedent's son, John Hendrick, Jr., ¼th to trusts for the children of her son, Robert, ¼th to the children of her daughter, Florence, and ¼th to the children of her daughter, May. The gifts were offered in equal portions to the decedent's children. While John, Jr., accepted, Robert, Florence and May had their mother give their respective portions to their children. This was the only occasion when the decedent did not make the gift to all of her children in equal portions.

On December 4, 1980, Lois May Smith Hendrick departed this life. At her death the decedent owned assets with a value of $710,721.71 including her home which had a value of $256,000. Decedent's debts were $56,425.14.

The decedent's olographic testament made only one disposition, a bequest of her home to her daughter, May Hendrick Chidlow. The testament also declares that the inter vivos gifts to her children and the bequest to May are extra portions for which they shall not be required to collate or account.[4]

*737 On October 14, 1981, Louisiana Bank and Trust Company, the provisional administrator of the succession, filed a Tableau of Distribution recognizing the legacy of the home to Chidlow and proposed to distribute it to Chidlow and proposed to distribute the remainder to all the heirs equally except for liquid assets which were to be retained by the bank "for the time being." The bank petitioned for authority to make the distributions. The opponents then filed their opposition to the tableau asserting that the legacy was invalid because it impinged on the legitime and, alternatively, demanding collation of inter vivos gifts received by the forced heirs.

The matter was submitted to the district court on the stipulated facts. The district judge determined that the active mass of the succession was $2,466,279 and he calculated the legitime and disposable portion as $1,644,186 and $822,093, respectively.[5]

The district judge found the testamentary dispensation from collation invalid and the inter vivos donations to decedent's children to be advances on the legitime. He found the legacy to Chidlow was not invalid under C.C. art. 1510 because the article was inapplicable.

The district judge then performed calculations to determine whether or not the heirs had received their legitime. In these calculations he valued movables given inter vivos as of the date of the gift under C.C. art. 1283. On that basis he concluded the heirs were entitled to an additional $825,826 to complete their legitime. As that amount is more than the succession assets left by decedent at death, the district judge declared the legacy invalid as an impingement on the legitime.

The district judge entered judgment declaring the legacy invalid and ordering the heirs to collate inter vivos donations to them or their children. This appeal followed. We reverse.

Issue # 1

Our first inquiry is whether the dispensation from collation in the decedent's olographic testament is valid. We conclude that it is not.

It is presumed that an inter vivos donation is subject to collation unless the donor provides to the contrary. C.C. arts. 1230,[6] 1231.[7] The donor may dispense with the requirement of collation in the instrument of donation or afterwards in an act passed before a notary and two witnesses. C.C. arts. 1232,[8] 1501.[9]

The decedent's olographic will was, of course, not made before a notary and two *738 witnesses. Thus, the attempt to dispense with collation was not made in the form required by the code.

However, the opponents cite Heirs of Barrow v. Barrow, 38 La.Ann. 645 (La. 1886), and Succession of Fertel, 209 La. 655, 25 So.2d 296 (1946), for the proposition that a donor may dispense with collation in a testament which does not meet the requirements of C.C. arts. 1232 and 1501. The cited cases do not support this position.

In Barrow the decedent left a will in the form of a nuncupative testament by private act. The will dispensed with collation by some children. The will was probated, its terms were carried out and the executor was discharged on June 24, 1878. Nearly eight years later certain heirs brought an action seeking, among other things, collation. This action was met with pleas of no cause of action, estoppel and prescription.

The Barrow court found the plea of estoppel to be well founded and wrote: "The will being thus protected from attack, its terms are sufficient to cut off any claim for collation ..." 38 La.Ann. 650. The basis of the Barrow decision was estoppel and the case is not authority for the independent validity of a dispensation from collation in nuncupative testament by private act.

In Succession of Fertel

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430 So. 2d 734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-hendrick-lactapp-1983.