Succession of Rivers

702 So. 2d 910, 1997 WL 619290
CourtLouisiana Court of Appeal
DecidedOctober 8, 1997
Docket97-542
StatusPublished
Cited by4 cases

This text of 702 So. 2d 910 (Succession of Rivers) 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 Rivers, 702 So. 2d 910, 1997 WL 619290 (La. Ct. App. 1997).

Opinion

702 So.2d 910 (1997)

SUCCESSION OF Clarence Joseph RIVERS, Plaintiff-Appellant,
William A. Rivers, Other Appellant,
Marvin Rivers, et al., Appellees.

No. 97-542.

Court of Appeal of Louisiana, Third Circuit.

October 8, 1997.
Writ Denied January 9, 1998.

*911 Allan Dale Smith, Ball, for William A. Rivers.

Richard E. Lee, Pineville, for Marvin Rivers et al.

Before YELVERTON, PETERS and PICKETT, JJ.

YELVERTON, Judge.

This appeal is from a judgment reforming a private sale of succession property to change the legal description from one acre to over twelve acres. The appellants are the succession and the substituted succession representative for the Succession of Clarence Rivers. We reverse and remand.

FACTS

Clarence Rivers died on October 29, 1981, leaving ten children. Three children were from an earlier marriage, and seven children were from his second and only other marriage. He died intestate so his ten heirs were each entitled to a one-tenth interest in his estate.

Clarence's succession was not opened until 1993. The succession petitioners were the seven children of the second marriage. Although the value of Clarence's half of the community property between him and his second wife, Irma, was only $7,500, and that was the entirety of his estate, the estate was not treated as a small succession. It was treated as a regular succession. Not only was this small succession treated as a regular succession, but the petitioning heirs (the seven children of the second marriage) even *912 asked for an administration. The necessity for an administration was allegedly for the payment of the debts of the succession, although the debts consisted only of attorney's fees and costs. A daughter of the second marriage, Peggy Herrington, was confirmed as administratrix on April 22, 1993, the same day that the succession was opened.

The court believes that the real reason for the administration of the succession was to enable a private sale of the succession property to one of the seven petitioning heirs. The immovable property of the succession consisted of one tract of land. It was valued at $15,000 on the sworn descriptive list. Clarence was owner of an undivided one-half of it. Marvin Rivers, one of the children of the second marriage, wanted to purchase the deceased's half of the immovable. It was part of the old family homesite. Marvin had already bought the undivided half-interest in the property belonging to his deceased mother, Irma, and he wanted the other half.

To accomplish that end, the administratrix petitioned the district court for a private sale to her brother, Marvin, for the price of $6,750, which was $7,500 less the value of Marvin's one-tenth interest, $750. The petition for authority to sell at private sale, the publications, and the judgment authorizing the sale were perfected in accordance with the requirements of La.Code Civ.P. art. 3281 et seq., dealing with the alienation of succession property by private sale. There being no opposition, the land was duly sold by the succession to Marvin Rivers.

The problem in this case that generated this lawsuit was an error in the description of the property. It was a big error, and it was not discovered until long after the judicial sale. As stated earlier, the succession property—what was left of the old home place—actually consisted of a half interest in 12.053 acres. However, the property described in the succession, including the sworn descriptive list, was a one acre tract cut out of the old home place. The description error was a consistent one. It appeared not only in the succession pleadings, but also in the petition for authority to sell, the advertisements, the judgment authorizing the sale, and the sale itself. According to the evidence at the hearing on the petition to reform the sale, the error was only as to the description. The price was correct, for the succession representative and Marvin did intend that the entire estate be conveyed by the private sale at that price.

Two years later William Rivers, who was one of the three children of Clarence's first marriage, petitioned for the removal of his half sister, Peggy, as administratrix. He succeeded in that petition and was himself appointed administrator of the succession. As administrator, William then filed a petition for collation describing various pieces of property that over the years had been carved out of the old home place and conveyed by donations in disguise by Clarence and Irma to most of their seven children. The seven children of Clarence and Irma answered that petition and denied the demand for collation. Marvin individually reconvened, and later was joined by his six siblings who filed an amending answer and reconventional demand praying that William Rivers, as administrator, be ordered to execute a correction deed conveying to Marvin "the remaining immovable property owned by the succession." This would have been a half interest in 11.053 acres.

The issue of reformation of the conveyance of succession property, as well as the collation questions, went to trial. The collation questions were for the most part stipulated, the donees agreeing to take less. Collation is not an issue on appeal.

On the reformation issue, the trial court found that Marvin proved by clear and convincing evidence that the parties to the transaction intended to convey a half interest in 11.053 more acres and that there had been a mutual mistake. A judgment was signed reforming the deed and ordering the administrator to convey to Marvin a half interest in the 11.053 acres. William, as the new administrator of the succession, appealed.

REFORMATION OF THE DEED

The new succession representative claims that the trial court erred in reforming the contract because it failed to take into account the prejudice resulting to third parties, *913 namely the heirs of the first marriage. William claims that the heirs were prejudiced because they relied upon the description and did not oppose the sale of one acre. When William testified at the trial of this cause, he testified that he opposed the reformation both individually and in his capacity as the succession representative.

We begin our analysis by repeating that William and his two siblings of the first marriage each had a one-tenth interest in the property belonging to the intestate succession of their father. This interest was apparent when the succession was opened and they were listed as heirs in the affidavit of death and heirship, although they were not petitioners. Alienation of the property by private sale without their consent required publication and advertisement of the sale. La.Code Civ.P. art. 3282.[1] The purpose of publication is to give notice of the proposed private sale of succession property to heirs, legatees, and creditors, in order to allow these interested parties to file oppositions to the proposed private sale. La.Code Civ.P. art. 3283. We make no comment as to whether they were entitled to additional notice as that has not been made an issue in the case. William and his two siblings were heirs and therefore included among those whose interests were minimally protected by the statutory requirement of publication.

On this appeal, Marvin, defending the trial court's judgment ordering a reformation, points to two cases in the jurisprudence which considered reformation of sales of succession property. Before we give our reasons for reversing the judgment ordering a reformation, we will discuss these two cases.

In Succession of Jones v. Jones, 486 So.2d 1124 (La.App.

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