Succession of Mulqueeny

181 So. 2d 384, 248 La. 659, 1965 La. LEXIS 2243
Supreme Court of Louisiana·Decided December 13, 1965·No. 47709, 47710·Published·Cited by 20 cases

Opinions

SUMMERS, Justice.

This litigation involves the interpretation of certain legacies in the last will and testament of Thomas Charles Mulqueeny who departed this life on May 16, 1962.

Decedent’s last will and testament is in nuncupative form and makes no mention of his one forced heir, a daughter, Mrs. Mary Mulqueeny Prieto. The will, dated July 5, 1958, insofar as it is pertinent to this litigation, reads as follows:

“I leave the property, numbers 4513 and 4515 Eden Street, in the City of New Orleans, Louisiana, to Dorothy Blackmar, my cousins daughter. I also leave her five thousand ($5,000.00) dollars cash.
“I leave five thousand ($5,000.00) dollars, cash, to Alicia Blackmar, widow of E. T. Anderson.
[663]*663“I leave five thousand ($5,000.00) dollars, cash, to Margaret (Margie) Black-mar. Both of the latter are also daughters of my deceased cousin, Katherine Kelly Blackmar.”
* * *
“I also leave to the said Anna Elizabeth Early any and all Homestead Stock, or any interest I may have therein, in the following named Building & Loan Associations :
“1. Eureka Homestead Society, 2. Fidelity Homestead Association, 3. First Homestead and Savings Association, 4. Hibernia Homestead & Savings Association, 5. Home Building and Loan Association, 6. Homestead Savings Association, 7. Security Building and Loan Association, 8. Union Savings and Loan Association.
I revoke all former wills ever made by me.
“I leave anything else, property or other assets, that I may die possessed of, to the said Anna Elizabeth Early and appoint her Executrix of my will and Estate, with seizin and without bond.
'T appoint Augustus G. Williams attorney at law to handle my succession and the execution of this will, according to law.”

Decedent’s estate consists of real estate valued at $48,200, United States Savings Bonds valued at $9,293.77, Homestead Savings Accounts valued at $46,500 and a small amount of cash ($167.20), jewelry ($1.00) and YMGA stock ($30.00).

The United States Savings Bonds mentioned above were payable on death to Miss Early, but, although they are to be fictitiously added to the estate to calculate the legitime, they are not otherwise part of the estate.

The Blackmar legatees, as the will recites, are cousins of the testator. Miss Anna E. Early, the other legatee, is unrelated. The decedent’s daughter, Mrs. Prieto, intervened, claiming her legitime as the will disposed of all of the testator’s property.

At the outset, Mrs. Prieto sought to have Miss Early removed as testamentary executrix because of alleged conflicts of interest and other charges. The trial court sustained this contention and discharged the executrix. However, on appeal to the Fourth Circuit this judgment was reversed (156 So.2d 317). Miss Early was accordingly reinstated as testamentary executrix and ordered to proceed with the settlement of the succession.

This contest developed in connection with the settlement when an opposition was filed by the Blackmar legatees and Mrs. Prieto, the forced heir, to the provisional account and proposed tableau of distribution filed by Miss Early as executrix.

The opposition of the Blackmar legatees, with which we are concerned, is based upon [665]*665the fact that the tableau of distribution filed by the executrix did not recognize the cash legacies of $5,000 to each of them. They assert that these legacies, inasmuch as there is no cash to satisfy them after payment of the succession debts and’ the withdrawal of the United States Savings Bonds, are payable out of the homestead accounts. It is argued that the homestead accounts are, in reality, nothing more than “cash” in legal contemplation and are available to satisfy the legacies to the Blackmar sisters; and Miss Early, under the will, is the residuary legatee of the balance after the legacies to the Blackmar sisters are satisfied.

On the other hand, the contention of Miss Early, as executrix and legatee, is that these homestead holdings were “stock” and by the language of the will she is a particular legatee of “any and all” of the homestead stock, “or any interest * * * therein.” Article 1635 1 of the Civil Code, she says, requires that the legacy to her, because it is one of a “certain object,” must first be discharged before legacies of money can be discharged. Hence, as there was no cash in the estate to speak of, and because she is the legatee of all of the homestead stock, there is nothing from which the Blackmar legacies can be satisfied; therefore, ademption of those legacies took place.

The trial court denied the contention of Miss Early, the executrix, and allowed the legacies to the Blackmar sisters. On appeal the Fourth Circuit reversed (172 So. 2d 326). That court was of the opinion that the problem presented was not one of ambiguity in the testament, but one merely of inadequate assets to discharge all of the unambiguous particular legacies. It therefore held that Article 1635 was controlling and Miss Early’s legacy of the named homestead stock “cannot be affected by the other legacies which are for money.” The effect of this adjudication was to decree the ademption of the legacies to the Blackmar sisters as there was no cash to satisfy them —all in keeping with Miss Early’s contention.

We granted writs to review the foregoing judgment.

As we have noted, Miss Early contends that the legacy to her of “any and all Homestead Stock, or any interest I may have therein” is, a legacy of a certain object and under the authority of Article 1635 of the Civil Code it must be taken out first. This result would leave nothing for the satisfaction of the Blackmar legacies.

This contention, however, is without merit. Such a legacy, under the authority [667]*667of Succession of Berdon, 202 La. 607, 12 So.2d 654 (1943) is not a legacy of a certain object for there is no legacy of a “definitely designated certificate of stock,” which is the requirement of certainty established by the Berdon decision when stock is the object involved. Moreover, the plain language of the will reveals the uncertainty in the bequest of “Homestead Stock” when the testator referred to “any interest” he might have therein. This reference is definitely not certain — not even as to the quantity involved. It could, under some circumstances, refer to nothing where the testator had “no interest” therein. Furthermore, the position Miss Early would have us adopt requires the finding of a violent and irreconcilable conflict between the disposition in her favor and the dispositions in favor of the Blackmar sisters — a result the testator could not in reason have intended. We do recognize, however, that the apparent contradictory dispositions create an ambiguity which must be reconciled.

The shares or stock owned by the decedent in the various building and loan associations referred to in the will were, in the main, designated as optional payment shares. Such shares are essentially nothing more than funds deposited with the association at interest, subject to withdrawal at any time upon presentation of the account book issued to the depositor.

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Succession of Mulqueeny, 181 So. 2d 384, 248 La. 659, 1965 La. LEXIS 2243 (La. 1965).

181 So. 2d 384 (Succession of Mulqueeny) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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