Succession of Viosca

202 So. 2d 511, 1967 La. App. LEXIS 4969
CourtLouisiana Court of Appeal
DecidedJuly 17, 1967
DocketNo. 2701
StatusPublished
Cited by6 cases

This text of 202 So. 2d 511 (Succession of Viosca) 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 Viosca, 202 So. 2d 511, 1967 La. App. LEXIS 4969 (La. Ct. App. 1967).

Opinion

SAMUEL, Judge.

The decedent herein, Oswald W. Viosca, died on October 10, 1965 leaving his two daughters, Lynn Viosca Brignac and Joan (Andree) Viosca Gamble, as his only heirs. He left a last will naming his brother Jules (Jules J. Viosca, Jr., hereinafter in this opinion referred to simply as Jules Viosca) testamentary executor. Jules Viosca qualified as executor and in due course filed inventories of the assets of the estate. Lynn Viosca Brignac then filed a rule- to show cause in the form of a motion to traverse the Orleans inventory. She alleged the decedent had purchased certain bonds having a face value of approximately $139,000; that those bonds were in the possession of Jules Viosca; and that the same should be inventoried as assets of the decedent’s estate. Jules Viosca and the notary who had taken the Orleans Parish inventory were ordered to show cause why the bonds should not be determined to be assets of the decedent and why they should not be included in the Orleans inventory of assets of the decedent’s estate.

After trial on the merits of the rule there was judgment recognizing the bonds as assets of the decedent and ordering that they be inventoried as such. Jules Viosca has appealed claiming, as he did in the trial court, that he is the owner of the bonds.

The bonds are twenty-seven $5,000 unregistered negotiable Louisiana Fiscal Authority Series D 3Y%% bonds due March 15, 1973 and bearing certificate numbers 1591-1617. They were purchased from E. F. Hutton & Company, Inc., a New Orleans security dealer, on September 21, 1964. The purchase price of $138,296.87 was paid by a National Bank of Commerce in New Orleans cashier’s check in that amount. The sole question before us is whether the bonds are the property of the succession of Oswald W. Viosca or the property of Jules Viosca.

Testifying on behalf of plaintiff in rule were the two daughters and heirs of the decedent, Mrs. Brignac and Mrs. Gamble; John P. Mitchell, a salesman for Hutton; and Walter D. Kingston, Jr., manager of Hutton’s bond department at the time of the purchase. Testifying on behalf of Jules Viosca, in addition to himself, were Miss Doris Claire Fleckinger, who had been his secretary for 22 years but who was not in his employ at the time of trial, and C. F. Andressen and Rodney J. Emmer, officers of the National Bank of Commerce. The record also contains documentary evidence.

Mrs. Brignac testified: Her father had often discussed his financial affairs with her and had expressed interest in municipal or tax-free bonds. Three or four mdnths prior to the purchase thereof, he mentioned the bonds here involved, telling her he was buying the bonds because, being very ill at the time and knowing he had only six months to live, insurance rates were much too high and he wanted to protect his children. After the purchase had been made he told her of the same in the presence of her maid and her mother-in-law. (We note that neither the maid nor the mother-in-law was called as a witness by plaintiff in rule.) He did not tell her where the bonds were nor did he lead her to believe they belonged to anyone else.

Mrs. Gamble testified she had worked for her father as secretary from 1961 to 1963 and from August 31, 1965 to just before the date of his death. He had discussed his financial affairs with her and particularly had discussed purchasing municipal bonds for tax purposes. He fre[513]*513quently referred to the purchase of the bonds here involved because he wanted to he sure she and her sister “ * * * would be provided for and without having to pay all of the inheritance taxes that the Government, you know, usually applies to an estate”. She was present on occasions when her father discussed purchasing bonds with Mitchell, whom she had been seeing socially, and at no time did he indicate he was purchasing the bonds in suit for anyone else. He never told her where the bonds were located. Her father and her uncle Jules had an arrangement between themselves under which Miss Fleckinger, her uncle’s secretary, prepared her father’s tax returns and acted as his bookkeeper. In return her father, a practicing attorney at law for many years, did all of her uncle’s legal work without charge. Just prior to his death the decedent had made arrangements with Mitchell to purchase about $30,000 of municipal bonds.

John P. Mitchell testified he had known the decedent since 1962. At that time he began seeing Mrs. Gamble socially and he had continued to see her to the time of trial. Oswald Viosca was interested in municipal bonds. The decedent phoned him relative to the purchase of the bonds in question, informing him of what bonds he wanted and where they were located (at another New Orleans brokerage firm). He inquired whether Mitchell could get the bonds and make a commission and received an affirmative answer. As Mitchell was concerned primarily with stocks he contacted Kingston in Hutton’s bond department and an account was opened in Oswald Viosca’s name. This witness was not present when the bonds were picked up; he had another appointment at the time and when he returned the transaction had been completed. He did see the decedent as the latter was leaving the Hutton building just after the purchase had been made and delivery taken. At that time Oswald Viosca did not have the bonds with him. At no time did the decedent ever indicate to this witness that the bonds were being purchased for anyone else. Shortly before his death the decedent had made arrangements with this witness to purchase municipal bonds in the amount of approximately $30,000 but the bonds were not received by Hutton until after his death and the transaction was not completed. Mitchell also testified he received a commission on the sale of the bonds involved herein and that' he did save the purchaser some money on the purchase price.

Walter D. Kingston, Jr., the manager of Hutton’s bond department, testified: The decedent, who had been referred to him by Mitchell approximately two months prior to the purchase in question, expressed an interest in purchasing bonds on several occasions and Kingston showed him several offerings. The negotiations culminated in the purchase of the bonds involved here. Several days before delivery of the bonds was made Jules Viosca came to Kingston’s office with a check for thé purpose of picking up the bonds. But he left abruptly without obtaining them. The witness did not remember why Jules Viosca had left and was under the impression, but was not certain, Hutton had the bonds at that time. On September 21, 1964 Oswald Viosca and a lady “evidently his secretary” came to Kingston’s office. The check, which the decedent had with him, was brought downstairs to the cashier and receipted for by her; the cashier also completed a delivery receipt. The bonds were counted and checked in the presence of Kingston, Oswald Viosca and the secretary. ' No comment was made to the effect that the bonds were being purchased for anyone else. However, on cross examination this witness admitted that the “negotiations” he referred to had been conducted only over the telephone; he had never met the decedent prior to September 21, 1964; and on that date he satisfied himself as to Oswald Viosca’s identity by checking the latter’s drivers license.

Miss Fleckinger testified: Jules Viosca was in the real estate business and she had [514]*514been his secretary for 22 years. He would invest money from the business as the same accumulated. She discussed with him the advisability of purchasing municipal bonds because of their tax-free status. Then she and Jules Viosca went to see Mr.

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202 So. 2d 511, 1967 La. App. LEXIS 4969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-viosca-lactapp-1967.