Succession of Schiro

691 So. 2d 1374, 1997 WL 170276
CourtLouisiana Court of Appeal
DecidedApril 9, 1997
Docket96-CA-1567
StatusPublished
Cited by9 cases

This text of 691 So. 2d 1374 (Succession of Schiro) 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 Schiro, 691 So. 2d 1374, 1997 WL 170276 (La. Ct. App. 1997).

Opinion

691 So.2d 1374 (1997)

SUCCESSION OF Mercedes Bland SCHIRO.

No. 96-CA-1567

Court of Appeal of Louisiana, Fourth Circuit.

April 9, 1997.
Rehearing Denied April 30, 1997.

*1375 Henry O'Connor, Jr., New Orleans, in Proper Person—Appellee.

James J. O'Connor, New Orleans, in Proper Person—Appellee.

A.D. Freeman, Byron Ann Cook, New Orleans, for Appellants Hugh B. O'Connor and Florence Civello, and Respondents Theresa Bland Cuccia, Hugh B. O'Connor and Alva Clark.

Vincent T. LoCoco, Vincent B. LoCoco, Many & LoCoco, New Orleans, for Appellee Florence O'Connor Onstad.

Dan D. Schaneville, Schaneville & Baringer, Baton Rouge, for Appellee Verinice Mayley O'Connor and Shan O'Connor.

David F. Edwards, Katy W. Kimbell, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Appellee Gayle Higgins Jones.

Before BYRNES, JONES and LANDRIEU, JJ.

LANDRIEU, Judge.

This is an appeal of a trial court judgment interpreting an olographic will and codicil which determined the inheritance rights of the legatees of Mercedes Bland Schiro who died on January 16, 1994, in New Orleans. Mrs. Schiro's will was dated November 5, 1984. It included an olographic codicil on the second page dated April 27, 1992 and a second olographic codicil dated June 29, 1989, each of which was probated with the will. Mrs. Schiro died without having had any children, but she had seven brothers and sisters, many of whom had children.

Essentially, in her will, Mrs. Schiro divided her estate into four equal parts, giving each of the first three parts to a specific sister, Florence O'Connor, Bella O'Connor or Theresa Cuccia, and that sister's descendants. Mrs. Schiro then divided the fourth part of her estate among various nieces and nephews, even if they already inherited through one of the first three dispositions.

Several months after Mrs. Schiro's succession was opened, Henry O'Connor and James J. O'Connor, two grandsons of Florence O'Connor, filed an action for declaratory judgment in the succession proceeding, seeking an interpretation of a particular legacy in Mrs. Schiro's will. Named as defendants were the co-executors, Hugh O'Connor and Florence Civello[1], and all others having an interest in the succession under the interpretation of the disputed legacy proposed by the co-executors.

In addition, the co-executors named Gayle Higgins Jones as a third-party defendant and asserted a separate action against her, seeking interpretation of two other legacies contained in Mrs. Schiro's will contrary to Ms. Jones's interests.

After a trial, the trial judge rendered judgment interpreting the first disputed legacy consistent with that proposed by Henry and James O'Connor and contrary to that proposed by the co-executors. Also, the trial judge ruled in favor of Gayle Higgins Jones and against the co-executors on the dispute between them.

FACTS

Mrs. Schiro was one of eight children born to Henry and Theresa Bland.[2] Her deceased sister, Bella O'Connor, had four children— Michael, Theresa, Alva, and Hugh. Michael died before Mrs. Schiro executed her will, and Theresa died after she made her will. Michael was survived by three children, and Theresa had one living child, Gayle Higgins Jones.

Mrs. Schiro's deceased sister, Florence O'Connor, had three sons—James, Jr., Henry, and John. Henry and John died before Mrs. Schiro executed her will, and James, Jr. died after she made her will. James, Jr. was survived by two children—Verinice Mayley *1376 and Florence Onstad. Henry was survived by four children—Henry, Jr., James, John, and Mercedes. John was survived by two children—Shan and Sharon.

The first part of Mrs. Schiro's residuary bequest was "[o]ne fourth to my deceased sister Florence Florence (sic) O'Connor children." The problem with this bequest is that only one of Florence O'Connor's children was living when Mrs. Schiro wrote her will. The trial judge determined that when Mrs. Schiro wrote "children" here, she intended "grandchildren."

The second part of Mrs. Schiro's residuary bequest was "[o]ne fourth to my deceased sister Bella O'Connor children namely Theresa Mary Higgins[,] Alva Clark and Hugh O'Connor."

The fourth[3] part of Mrs. Schiro's residuary bequest was:

The last fourth to be divided as follows Two (2) fourths of the last fourth to my niece Florence Civello [,] One (1) fourth of that last fourth to my niece Theresa Mary Higgins and the last fourth of that fourth to be divided between my niece Anna Holton my (sic) Henry O'Connor, James O'Connor and Mercedes O'Connor.

The problem with the second and fourth part of the residuary bequest is that Mrs. Higgins died in October of 1991, and thus she predeceased Mrs. Schiro. The trial judge used an invalid codicil[4] as corroboration of Mrs. Schiro's intent that these legacies go to Mrs. Higgins's daughter, Gayle Higgins Jones.

The co-executors appeal this judgment, assigning as error the failure to find that the legacy to the Florence O'Connor children or the legacies to Theresa Mary Higgins had lapsed under La. Civ.Code art. 1697.

Appellees are Florence O'Connor Onstad, Verinice Mayley O'Connor, Shan O'Connor, Gayle Higgins Jones, Henry O'Connor and James O'Connor. "Respondents to Appeal[5]," who are aligned with the co-executors, are Theresa Bland Cuccia, Hugh B. O'Connor[6], and Alva Clark.

DISCUSSION

Appellee, Florence O'Connor Onstad filed peremptory exceptions of res judicata, no cause of action and no right of action, claiming that the only appellants, the coexecutors, have no interest in this appeal in their capacities as co-executors. Furthermore, Ms. Onstad claims that since no legatee adversely effected by the judgment has appealed, the declaratory judgment is final as to them.

At the outset, we note that Ms. Onstad has improperly characterized her argument; instead of raising peremptory exceptions to appellants' appeal, Ms. Onstad should have filed a motion to dismiss the appeal under La.Code Civ. Proc. art. 2162. Nonetheless, there is no merit to her arguments, regardless of their characterization.

La.Code of Civ. Proc. art. 2084 provides:
A legal representative may appeal any appealable judgment rendered against him or affecting the property which he is administering, for the benefit of the person whose property he administers or whom he represents, whenever he considers an appeal necessary or advisable.

Specifically with regard to declaratory judgments, La.Code Civ. Proc. art. 1877 provides that all declaratory judgments may be reviewed as other orders, judgments, and decrees. Therefore, our statutory law envisions the appeal brought by the co-executors in this case.

Moreover, we agree with the reasoning offered by the Court in Succession of Vatter, 191 La. 875, 186 So. 597, 598 (1939):

It is clear, we think, that an executor may appeal from a judgment interpreting the will. It is the duty of an executor to carry out the provisions of the will as he *1377 understands them, the will being the law which governs his official actions. If the interpretation placed upon the provisions of the will by the trial court is contrary to the view entertained by the executor and his counsel, the executor may appeal from such ruling in order to have the controversy settled by a court of last resort.

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Cite This Page — Counsel Stack

Bluebook (online)
691 So. 2d 1374, 1997 WL 170276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-schiro-lactapp-1997.