Succession of Mitcham

513 So. 2d 345, 1987 La. App. LEXIS 10038
CourtLouisiana Court of Appeal
DecidedSeptember 4, 1987
DocketNo. CA-6369
StatusPublished
Cited by2 cases

This text of 513 So. 2d 345 (Succession of Mitcham) 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 Mitcham, 513 So. 2d 345, 1987 La. App. LEXIS 10038 (La. Ct. App. 1987).

Opinion

ARMSTRONG, Judge.

Floyd and Ann Anderson appeal the dismissal of their petition for declaratory judgment in which they sought to be named the universal legatees of the residual estate of their uncle, Med Mitcham.

Med Mitcham executed an olographic will dated September 5, 1977.1 The testator died on November 1, 1984, unmarried and [347]*347without ascendants or decendants. He was survived by collateral heirs or their representatives, one of whom was his nephew, Floyd Anderson, Sr., a resident of Inverness, Mississippi. Donald Mitcham, the testator’s brother, was named testamentary executor.

The will was admitted to probate on November 26, 1984. The undisputed specific legacies were subsequently approved and delivered, including $37,000 to Donald Mitc-ham as named legatee of 25% of the estate.

Following the opening of the succession Floyd and Ann Anderson alleged that the will specifically named them as residual legatees entitled to the balance of the estate. The executor maintained that the decedent was intestate as to that portion of his estate not disposed of by specific bequests, thus requiring the residue of the estate to be divided proportionally among the collaterals, including the Andersons and Donald Mitcham.

The Andersons filed for declaratory judgment. After a trial on the merits the trial court dismissed the Andersons’ petition and held that the collateral heirs were entitled to their representative shares of the balance of the decedent’s estate.

On appeal the petitioners contend that the following passage in the will expresses the testator’s intent to bequeath them the residue of his estate:

To my nephew Floyd Stevens Anderson Sr. and his wife ann—
1 Pair Marble and Dare’ Warriors (To be Willed to Patti Anderson on their deaths.
The balance of my estate:.

The executor maintains that it was never the intention of the testator to will the balance of his estate to the Andersons. In the alternative, the executor argues that alterations to the will rendered the residue portion intestate.

The trial court concluded that the testator had originally intended to bequeath his estate to the Andersons but changed his mind due to a resentment toward them which developed after 1980. The court cited the testator’s refusal to visit the Andersons in Inverness, Mississippi after 1980 and his refusal to be buried in Inverness as support for its conclusion. (The testator was buried in the family plot in Hazlehurst, Mississippi.)

The court further concluded that the insertion of a colon in the disputed passage after the will was executed on September 5, 1977, could only mean that the testator revoked his intent to bequeath the balance of his estate to the Andersons because he intended to list an alternate legatee in their stead. Because the testator failed to actually name a substitute residual beneficiary the court declared that portion of the estate to be intestate. We disagree.

We are well aware that in the absence of manifest error, an appellate court should not disturb the factual finding of [348]*348the trial court where there is evidence before the trier of fact which upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for its finding. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). However, having reviewed the evidence and testimony before us, we must conclude that such error exists in the instant case.

“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 testament.” LSA-C.C.Art. 1712. “A disposition must be understood in the sense in which it can have effect, rather than that in which it can have none.” LSA-C.C.Art. 1713. If possible, wills should be read as to lead to testacy, not intestacy. Succession of Carter, 332 So.2d 439 (La.1976).

The will consists of four handwritten pages and is divided into seven parts separated by Roman numerals and distinctive spacing. Section I contains a listing of specific legacies of cash, stock, personal articles and antiques which the testator willed to his friends and relatives. Sections II through YII contain instructions as to the appointment of the executor, the disposition of the testator’s business and the testator’s desires as to funeral arrangements.

The specific bequests in Section I are numbered la to 22a and end about Va down from the top of page three. The remainder of page three was left blank, possibly to accomodate any additional specific bequests which the testator may have later wished to make. Page four begins with the unnumbered disputed bequest passage. This passage, along with the short instructions that follow, ends Section I containing the individual bequests.

Alterations were made to the will at some unknown time and date. (The parties apparently agree that the testator himself made the changes, however evidence was not produced at trial to this effect.) A different pen and different color ink were used to accomplish the changes. Among the notable alterations was the insertion of a colon in the disputed passage. Also, in another portion of the will, the phrase, “My nephew Floyd Stevens Anderson Sr. to make arrangements” was crossed out. This phrase was preceded by the unaltered phrase “It is my desire to be buried at Inverness Mississippi.”

It is undisputed that prior to 1980 Med Mitcham enjoyed a close and loving relationship with the Andersons. Mitcham lived in Floyd’s family home in Inverness, Mississippi as a young man and considered Floyd his favorite nephew. Even after moving to New Orleans, Mitcham spent every Thanksgiving or Christmas until 1980 with Floyd and his family.

Donald Mitcham testified that the testator became upset with the Andersons in 1980 because they had over reacted to the death of their pet dog and because “they always had a hand out for money.” According to Donald, Med thereafter refused to return to Inverness. Based upon this hearsay statement and the lining out of the phrase authorizing Floyd to make the funeral arrangements, the trial court concluded that the testator altered his will sometime after 1980 and “... irrevocably and definitively severed all social relationships with [the Andersons].”

We find that this interpretation completely ignores the testimony of Floyd Anderson and Dr. Mark Parker, the testator’s lifelong friend and physician. Dr. Parker, who had never met Floyd Anderson, testified that Med had expressed to him on several occasions his intent to leave his estate to Floyd. He also testified that Med’s health began to seriously decline after 1979 to such an extent that in subsequent years he could no longer conduct his business nor care for himself. He stated that although Med did not visit the Andersons in Inverness after 1980, it was because of his physicial discomfort in travelling rather than the result of a change in the relationship between Med and his nephew. Med had instructed Dr. Parker during this period that the Andersons were to be contacted in case of an emergency regarding his health. Dr. [349]*349Parker did in fact contact the Andersons periodically subsequent to 1980 to report on Med’s medical status.

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Related

Succession of Schiro
691 So. 2d 1374 (Louisiana Court of Appeal, 1997)
Succession of Mitcham
514 So. 2d 1177 (Supreme Court of Louisiana, 1987)

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Bluebook (online)
513 So. 2d 345, 1987 La. App. LEXIS 10038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-mitcham-lactapp-1987.