Succession of Marcel

421 So. 2d 411, 1982 La. App. LEXIS 8143
CourtLouisiana Court of Appeal
DecidedOctober 12, 1982
DocketNo. 82 CA 0067
StatusPublished

This text of 421 So. 2d 411 (Succession of Marcel) 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 Marcel, 421 So. 2d 411, 1982 La. App. LEXIS 8143 (La. Ct. App. 1982).

Opinion

COVINGTON, Judge.

This is an appeal by Robert B. Marcel, Mrs. Irene Marcel Rhodes, Mrs. Enid Marcel Ferguson, Mrs. Shirley Marcel Fernandez and Mrs. Rosemary Bourgeois Marcel1, plaintiffs, from a judgment of the district court in which the donation from Wilson Marcel, decedent, to Yvette Marcel Hebert on June 19, 1972, transferring Lot 3 of Block 2 of Evergreen Heights Subdivision, located in Section 8, T 17 S, R 12 E, Terre-bonne Parish, Louisiana, was set aside; the purported sale of January 8, 1969, by Wilson Marcel to Thomas Marcel was found to be a disguised donation of a tract of land 180 feet by 150 feet, located in Section 8, T 16 S, R 16 E, Terrebonne Parish, Louisiana; the donation made to Mrs. Hebert of the aforesaid Lot 3 of Block 2 of Evergreen Heights Subdivision, and the disguised donation to Thomas Marcel were decreed to be collatable, with the donees given the option of collating in kind or by taking less; and the remaining demands made in the petition in opposition to the final tableau of distribution and for collation and reduction of the donation were dismissed. The basis for the dismissal was that the plaintiffs had failed to prove that the purported cash sales by the decedent to Yvette Marcel Hebert on September 11,1966, to Ray Anthony Marcel on August 5, 1966, and to Jeanne Marcel Daigle and Robert J. Daigle on February 12, 1970, were simulations or disguised donations. We affirm.

The record establishes that Wilson Marcel died on November 19, 1973. The decedent was married to Adele Bernard, who survived him. He was also survived by eight children, the plaintiffs and defendants herein (with Robert J. Daigle, the husband of one of the Marcel children, also named as a defendant). In due course, the decedent’s will was probated on December 5,1973, and Yvette Marcel Hebert qualified as executrix thereof. Certain incidental proceedings took place, and eventually, on February 7, 1975, the executrix filed a tableau of distribution, along with an inventory ap-praisement. Then, on February 28, 1975, the plaintiffs filed a petition and rule in opposition to the tableau of distribution and for collation and reduction of the aforesaid donations which impinge on plaintiffs’ legi-time. Made defendants therein were Yvette Marcel Hebert2, Ray Anthony Marcel, Jeanne Marcel Daigle and her husband, Robert J. Daigle. The petition alleged that a donation was made by the decedent to Yvette Marcel Hebert on June 19, 1972; that a purported sale to Mrs. Hebert on September 11, 1966, was not a sale in that no consideration was paid and, therefore, it was a disguised donation. Similar allegations were made with reference to the purported sales made by the decedent to Ray Marcel and Mr. and Mrs. Daigle, demanding that the donations inter vivos should be collated, and that the mortis causa donations should be reduced to a portion not in excess of the disposable portion of the decedent’s estate. The petition also contained an averment that the sale made to one of the plaintiffs, Thomas Marcel, was, in fact, a disguised donation. After hearing on the rule, judgment was rendered, approving the [413]*413tableau of distribution, subject to the reservation of the rights of the plaintiffs to seek collation and reduction.

Subsequent thereto, the plaintiffs filed an amended petition, alleging that if any consideration was given for the transfer of the property in the purported sales, it was less than the true value thereof, making the transactions still subject to collation. In responding, Mrs. Hebert answered that if the amounts paid were not adequate consideration, then the value of services performed by her for the decedent and his wife exceeded the value of the property received. After trial on the merits, the trial court rendered the judgment complained of herein.

On this appeal, there are three separate transactions that are in dispute: First, the purported cash sale from the deceased to Yvette Hebert on September 11, 1966; second, the purported cash sale to Ray Marcel on August 5, 1966; and third, the purported cash sale to Mr. and Mrs. Daigle.

Wilson Marcel-Yvette Marcel Hebert cash sale, September 11, 1966

The record reflects that by an instrument referred to as a cash sale, Wilson Marcel purported to sell to his daughter, Yvette Hebert. The act of sale recited that a cash consideration of $9,000.00 was paid by the purchaser to the seller. In considering this transaction, the trial judge found:

“In an effort to establish such proof as regards the sale of property by the decedent to Yvette Marcel Hebert on September 11, 1966, the petitioners presented certain discrepancies in the receipts signed by the decedent and circumstances surrounding the issuance of checks by Yvette Marcel Hebert to the decedent. The Court finds that the evidence and testimony taken on a whole reveals that the plaintiffs have failed to meet the burden of proof required by the law to allow for a finding that the sale was in fact a donation. Therefore, the Court finds that the transfer of property was a sale and therefore not subject to collation.”

We disagree with this finding of the trial court. We believe that the lower court erred in its placing of the burden of proof on the plaintiffs. When plaintiffs established a prima facie case, the burden then shifted to the defendant to establish the reality of the sale. Johnston v. Bearden, 127 So.2d 319 (La.App. 2 Cir.1961), cert, den. April 24, 1961. When called on cross-examination, Mrs. Hebert admitted that on the date the purported act of sale was executed she did not pay $9,000.00 cash to her father as the deed recited. She claimed to have paid him $700.00 “after everybody had left after the sale.” She testified that she did actually pay the entire amount of the recited consideration ($9,000.00) over a period of seven years. She produced various cash receipts and several cancelled checks which she claimed represented payments to her father for the property involved in the transaction. She admitted, and the record establishes, that her father earlier donated a lot to her. The cash receipts were written out by Mrs. Hebert and signed by her father. As to the checks, it appears from her testimony that each time she gave her father a check, she also took him to the bank to cash it. Mrs. Hebert’s bank statement for September 13, 1972 is noteworthy in that on August 22, 1972, her account showed a balance of $1093.91 and on August 25th, a balance of $893.91, yet on August 23, 1972, she issued a check to Wilson Marcel in the amount of $3,000.00. Then on August 24th there is a check which was deposited in her account on August 28, 1972. Again on December 18,1972, there is a check from Mrs. Hebert in the amount of $1,000.00 to her father, and on the same date, a check from Wilson Marcel to Yvette M. Hebert. On August 20, 1973, there is a check of $1,000.00 to Wilson Marcel, endorsed by him, and then endorsed by Mrs. Hebert, who admitted cashing it. It is significant that Mrs. Hebert’s husband, Joseph Hebert, who was present when several of the receipts were signed, never saw his wife pay her father any money. The way the receipts were made out and the way the checks were handled lead us to believe that Yvette Marcel Hebert was not actually pay[414]*414ing the price to her father on the purported sale. Taking the evidence as a whole, we believe that Mrs. Hebert has failed to prove that the transaction between her and her father, Wilson Marcel, was a sale.

Nevertheless, the fact that we find that the transaction between Mrs.

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Bluebook (online)
421 So. 2d 411, 1982 La. App. LEXIS 8143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-marcel-lactapp-1982.