Succession of Horrell

102 So. 3d 139, 2011 La.App. 4 Cir. 1574, 2012 WL 1232593, 2012 La. App. LEXIS 517
CourtLouisiana Court of Appeal
DecidedApril 11, 2012
DocketNo. 2011-CA-1574
StatusPublished
Cited by5 cases

This text of 102 So. 3d 139 (Succession of Horrell) 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 Horrell, 102 So. 3d 139, 2011 La.App. 4 Cir. 1574, 2012 WL 1232593, 2012 La. App. LEXIS 517 (La. Ct. App. 2012).

Opinion

DANIEL L. DYSART, Judge.

| j Walter J. Horrell appeals a judgment of the trial court placing his mother and four siblings into possession of a substantial portion of the estate of his deceased father, Edward A. Horrell, Sr. For the following reasons, we affirm.

FACTS:

Edward A. Horrell, Sr. (“Mr. Horrell”), died in 1993. Since his death, his eldest son, the appellant, has been fighting over his father’s estate. Just prior to Mr. Hor-rell’s death, appellant presented his father with a statutory will that appellant and his attorney daughter prepared. Mr. Horrell signed the will, with his attorney granddaughter and appellant’s wife acting as witnesses. The will was deemed invalid by this Court because of Mr. Horrell’s lack of mental capacity at the time he signed it. See Succession of Horrell, 95-1598, 95-1599 (La.App. 4 Cir. 9/11/96), 680 So.2d 725.

Simultaneously with the signing of the will, appellant presented his dying father with an act of donation, which would operate to donate a plot of land in Covington to the appellant. The property was Mr. Hor-rell’s separate property.

| {¡Appellant’s mother and his four siblings (referred to hereinafter collectively as “the Horrells”) learned of the donation prior to Mr. Horrell’s death and presented him with a revocation and a power-of-attorney in favor of his wife. Appellant subsequently presented his father with a document revoking Mrs. Horrell’s power-of-attorney, and an incomplete petition to dismiss any suit Mrs. Horrell may file to revoke the donation.

Two days before Mr. Horrell died, his wife filed a petition in St. Tammany Parish to revoke the donation of the Covington property. She thereafter amended the pe[141]*141tition to substitute Mr. Horrell’s other four children as petitioners. Appellant answered the suit with an exception of no right of action. The trial court denied the exception. It ultimately granted a summary judgment in favor of plaintiffs (appellant’s siblings) based on res judicata 1. Appellant appealed that judgment.

On rehearing, the First Circuit looked to the ruling of this Court finding that Mr. Horrell lacked the mental capacity to execute the will. The court reasoned that Mr. Horrell’s mental capacity to execute the contested will was already decided in Succession of Horrell, supra; therefore, the issue of his mental capacity to sign the donation was res judicata. See Horrell v. Horrell, 99-1093 (La.App. 1 Cir. 8/15/01), (on rehearing), 808 So.2d 363.

After this Court declared the will invalid, appellant sought to be named administrator of his father’s estate. The trial court refused and an appeal followed. 13This Court found that appellant’s involvement in having his father execute a will when he lacked the mental capacity to do so, demonstrated bad moral character on the part of appellant, thereby disqualifying him to serve as administrator. See Succession of Horrell, 97-2115 (La.App. 4 Cir. 3/25/98), 709 So.2d 1069.

Because of the continued wrangling between the appellant and the Horrells, the trial court appointed a provisional adminis-tratrix to handle the affairs of the estate. This appointment was also challenged by appellant, but was upheld.

Since the appointment of the administra-trix, the courts of the First Circuit and Fourth Circuit have considered, among other things, whether appellant should be evicted from his residence, whether he should be ordered to allow the administra-trix into his residence to inventory and appraise succession property, whether appellant should be held in contempt for abuse of the judicial process and for avoiding service, and whether appellant should be forced to pay attorney’s fees and costs from his share of the estate.

The current appeal challenges a Judgment of Partial Possession granted by the trial court to the Horrells.

DISCUSSION:

In his first assignment of error, appellant argues that the trial court erred in signing a judgment of possession that exceeded the contents allowed in a legitimate judgment of possession. Specifically, appellant argues that the petition for partial possession fails to satisfy the requirements of La.Code Civ. Proc. art. 3061.

|4Louisiana Code of Civil Procedure art. 3061 provides in part:

A. The court shall render and sign immediately a judgment of possession, if it finds from an examination of the petition for possession, and from the record of the proceeding, that the petitioners are entitled to the relief prayed for.
B. The judgment shall recognize the petitioners as the heirs, legatees, surviving spouse in community, or usufructu-ary, as the case may be, of the deceased, send the heirs or legatees into possession of the property owned by the deceased at the time of his death, and recognize the surviving spouse in community as entitled to the possession of an undivided one-half of the community property, and of the other undivided [142]*142one-half to the extent that he has the usufruct thereof.

Appellant argues that there is no provision to allow for “side deals, unproved assumptions of obligations, and so forth.”

The Horrells disagree with appellant’s argument that La.Code Civ. Proc. art. 3061 limits what can be contained in a judgment of possession; rather, they argue, article 3061 sets forth the minimum information to be contained in a judgment. They explain that the extra verbiage contained in the Partial Judgment of Possession was included at the request of the administratrix to clarify certain items. They point out that appellant offers no legal authority for his position that the judgment contains items not allowed by law.

In addition to the provisions of Art. 3061, La.Code Civ. Proc. art. 3362 provides:

At any time prior to the homologation of the final tableau of distribution, a majority of the heirs of an intestate decedent whose succession is under administration may be sent into possession of all or part of the property of the succession upon their filing a petition for possession as provided in Articles 3001 through 3008 excluding any provisions of Article 3004 to the contrary, except that the proceeding shall be contradictory with the administrator. Upon the filing of such a petition the court shall order the administrator to show cause why the petitioners should not be sent into | ^possession, and shall order that the petitioners be sent into possession unless the administrator or any heir shows that irreparable injury would result, and upon a showing that adequate assets will be retained in the succession to pay all claims, charges, debts, and obligations of the succession. If a majority of the heirs are sent into possession of a part of the property, the administrator shall continue to administer the remainder.

The side deals, unproved assumptions of obligations, and so forth, are all items contained in the petition for possession, and ultimately the judgment of possession. The transcript reveals that the trial court painstakingly reviewed each line item individually and heard argument from all counsel.

Further, the administrator demonstrated to the satisfaction of the trial court that sufficient amounts were being retained to pay all claims, charges, debts and obligations of the succession, and that no irreparable injury would result if the petitioning heirs and the surviving spouse were placed into partial possession.

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Cite This Page — Counsel Stack

Bluebook (online)
102 So. 3d 139, 2011 La.App. 4 Cir. 1574, 2012 WL 1232593, 2012 La. App. LEXIS 517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-horrell-lactapp-2012.