Succession of Rolling

86 So. 2d 687, 229 La. 727, 1956 La. LEXIS 1341
CourtSupreme Court of Louisiana
DecidedMarch 26, 1956
DocketNo. 42250
StatusPublished
Cited by1 cases

This text of 86 So. 2d 687 (Succession of Rolling) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Succession of Rolling, 86 So. 2d 687, 229 La. 727, 1956 La. LEXIS 1341 (La. 1956).

Opinion

HAMITER, Justice.

Mrs. Julia Bonnabel Rolling, widow of Charles W. Rolling, died at her domicile in Metairie, Jefferson Parish, on September 13, 1946. Surviving were a daughter, Miss Bonnie W. Rolling, and four sons, Erie W., Laurance, Alfred and Julian Emanuel Rolling.

Shortly after her death an olographic last will and testament made by the decedent on May 4, 1946 was located, following a search by a commissioned Notary Public, in her safety deposit box in the Whitney National Bank of New Orleans. On the petition of all of the children the court probated it and ordered the taking of an inventory of decedent’s estate.

Some months later, while the inventory was being made, Miss Bonnie W. Rolling unexpectedly discovered among the effects of the decedent in the premises where she resided another olographic will and an attached codicil, these having been dated June 14, 1941 and July 29, 1941, respectively. They, on the petition of the daughter, were also probated.

On October 28, 1949 Miss Bonnie W. Rolling, individually and as testamentary executrix, petitioned the district court, pursuant to the Uniform Declaratory Judgments Act, LSA-R.S. 13:4231 et seq., to have it “interpret and determine the true and correct legal intent and effect of the provisions and dispositions contained in said documents” (the probated two wills and codicil). The court dismissed the petition on exceptions of no right and no cause of action and a plea of prematurity filed by decedent’s sons.

On an appeal this court reversed and set aside that decision, overruled the exceptions and plea, and remanded the cause to be proceeded with according to law. See 224 La. 23, 68 So.2d 744.

On the remand the district court tried the declaratory judgment cause on its merits. Subsequently, it ruled: “The Court believes, and so holds, that the testatrix, by the will dated May 4th, 1946, did not intend to revoke the will dated June 14th, 1941 and the codicil dated July 29th, 1941, and further, that the testatrix intended to and did make the following dispositions, to-wit:” (Here recognition is given to seven dispositions from the two wills which, considered in their entirety, appear to afford to the daughter a decided advantage over her brothers.) From the judgment the four sons are presently appealing.

In the will of June 14, 1941 the decedent first described herself as “Mrs. Charles Rolling, nee Julia Bonnabel, of the Parish of Jefferson, State of Louisiana”, and she then made the following bequests; 1. To her husband the usufruct of $10,000 in bonds (no specific ones named) and to her four sons equally the naked ownership thereof. 2. To her daughter certain particularly described real estate (apparently her home) in Brockenbrough Court, Metairie Ridge, Jefferson Parish, and “personal [731]*731effects and belongings including furniture, jewelry, household effects and all other effects” in her home, all of these having been bequeathed as an extra portion and not subject to collation. 3. To her daughter one-half of the double tomb in Metairie Cemetery and to the sons the other half. 4. To the sons, to be shared and shared alike, her real estate located in Metairieville, Jefferson Parish. 5. To her daughter “$10,000 in bonds; the remainder of my stock and bonds to be equally divided between my four sons.” In conclusion, the testatrix named her daughter and John Rau as executors of her estate.

In the codicil of July 29, 1941 she merely gave instructions concerning payment of the usufruct bequeathed to her husband and designated her daughter trustee for the share left to one of the sons (evidently a minor then).

Following the death of her husband Mrs. Rolling made the second will involved herein, of date May 4, 1946, which (with the numerous mispelled words corrected) recited :

“State of Louisiana
Parish of Jefferson
May 4-1946
“I, Mrs. Chas. W. Rolling, nee Julia Bonnabel of the Parish of Jefferson, State of Louisiana do make and constitute this my last will and testament. I will and bequeath to my daughter Bonnie W. Rolling all my personal effects and belongings including furniture jewelry household effects and all other effects in our home.
“I will and bequeath to my daughter Bonnie W. Rolling one half of my double tomb in Metairie Cemetery, the half in which her father is buried the other half I leave to my four sons Alfred, Erie, Laurance and Julian Emanuel, I will and bequeath to my daughter Bonnie W. Rolling my stock in Swift and Company and my stock in Atlas Corporation, I will and bequeath to my four sons Alfred, Erie, Laurance and Julian Emanuel
“The remainder of my estate consisting of stock, Bonds and real estate, to share and share alike. I hereby appoint my daughter Bonnie W. Rolling and Rev. Felix Miller as executors of my estate, or either of them, should any one of them be unable or unwilling to act, the said executors or either of them to have full seizen of my estate and to serve without bond.
“Mrs. Chas. W. Rolling nee Julia Bonnabel”

It is the contention of appellants (the four sons) that the document of May 4, 1946 constituted decedent’s last will and testament, and that by it she tacitly revoked the prior will (together with the attached codicil) in its entirety.

On the other hand appellee, the daughter, urges (as the trial court held) that the posterior document effected only a particular [733]*733revocation of specific dispositions of the prior one; and that the provisions of both wills, except where conflicting, must be carried out. In their brief her counsel state: “* * * In her will of 1946, she repeated two particular legacies given to her daughter in her 1941 will and disposed of the $10,000.00 in bonds previously left to her husband, and gave the jewelry, household effects, and so forth, to her daughter, but not as an extra portion as she did in the 1941 will, thereby making a change of this particular legacy.”

“The revocation of testaments by the act of the testator is express or tacit, general or particular.

******

“It is tacit when it results from some other disposition of the testator, or from some act which supposes a change of will.

“It is particular when it falls on some of the dispositions only, without touching the rest.” LSA-Civil Code Article 1691.

“Posterior testaments, which do not, in an express manner, revoke the prior ones, annul in the latter only such of the dispositions therein contained as are incompatible with the new ones, or contrary to them, or entirely different.” LSA-Civil Code Article 1693.

“When a person had ordered two things, which are contradictory, that which is last written is presumed to be the will of the 'testator, in which he has persevered, and a derogation to what has before been written to the contrary.” LSA-Civil Code Article 1723.

“A subsequent will, showing by its whole tenor that it was intended to contain all the testamentary dispositions of the deceased, revokes a prior will, in so far as it contains dispositions incompatible with those contained in the will last made.” Succession of Bobb, 42 La.Ann. 40, 7 So. 60. See also Succession of Pizzati, 141 La. 645, 75 So. 498 and Succession of Ryan, 228 La. 447, 82 So.2d 759 (on rehearing).

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Succession of Hammett
247 So. 2d 249 (Louisiana Court of Appeal, 1971)

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Bluebook (online)
86 So. 2d 687, 229 La. 727, 1956 La. LEXIS 1341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-rolling-la-1956.