STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
NO. 06-1271
VIRGIE MAE BERTRAND TRAHAN, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE SUCCESSION OF OLIVIA BELLARD BERTRAND
VERSUS
ALFRED LOUIS BERTRAND, SR.
********** APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C-477-05 HONORABLE CHARLES QUIENALTY, DISTRICT JUDGE, AD HOC
**********
GLENN B. GREMILLION JUDGE
Court composed of Glenn B. Gremillion, Michael G. Sullivan, and James T. Genovese, Judges.
WRIT DENIED.
James B. Doyle P. O. Box 5241 Lake Charles, LA 70606-5241 (337) 474-9989 Counsel for Plaintiff/Respondent: Virgie Mae Bertrand Trahan Succession of Olivia Bellard Bertrand Michael E. Roach P. O. Box 1747 Lake Charles, LA 70602 (337) 436-2900 Counsel for Plaintiff/Respondent: Virgie Mae Bertrand Trahan Succession of Olivia BellardBertrand
Tim Cassidy Cassidy & Gunnell P.O. Box 1446 Jennings, LA 70546 (337) 824-7322 Counsel for Defendant/Applicant: Alfred Louis Bertrand, Sr. GREMILLION, Judge.
The plaintiff, Virgie Mae Bertrand Trahan, and the defendant, Alfred
Louis Bertrand, Sr., both seek supervisory writs on the trial court’s judgment granting
in part and denying in part a peremptory exception of no right of action in favor of
Alfred and the denial of his peremptory exception of prescription. For the foregoing
reasons, we deny the writs.
FACTS
Ira Bertrand and Olivia Bellard Bertrand were the parents of Virgie and
Alfred. On September 24, 1992 and September 30, 1992, Ira and Olivia executed
inter vivos donations of immovable property in favor of Alfred. Ira passed away on
October 25, 1992. Olivia passed away on September 2, 2000, after which Virgie was
appointed administratrix of her estate. On July 11, 2005, Virgie filed a Petition to
Declare Donations Null and Void seeking to have the 1992 donations to Alfred
declared null and void as donations omnium bonorum, pursuant to La.Civ.Code art.
1489. She filed the petition individually as an heir and as administratrix of her
mother’s estate. In her petition, she alleged that the two donations divested her
parents of all of their real estate and its accompanying income leaving them in
necessitous circumstances. Thus, she alleged that the property or its value should be
returned to her parents’ estates and that Alfred was indebted to the estates for all
proceeds generated from the property.
In response to the petition, Alfred filed an answer and peremptory
exceptions of no right of action and prescription. Following a hearing on the
exceptions, the trial court rendered judgment sustaining the exception of no right of
1 action as to Virgie’s standing to file the petition in her capacity as administratrix of
her mother’s estate and in her individual capacity as a forced heir to her mother.
However, it denied the exception as to her capacity as a forced heir of her father.
Finally, it denied the exception of prescription finding that a cause of action based on
a donation omnium bonorum was imprescriptible. Virgie and Alfred both sought
supervisory writs from this judgment.
ISSUES
In his writ application, Alfred questions whether Virgie has a right of
action to challenge the donations made to him by his father, pursuant to La.Civ.Code
art. 1498, and whether her claim has prescribed pursuant to the civil code articles
pertaining to reduction of an excessive donation. Virgie, on the other hand, questions
whether she has the right, as an heir of her mother, to seek the nullity of a donation
omnium bonorum following the abolition of forced heirship pursuant to La.Civ.Code
art. 1493. She further asks whether she has a right to seek the nullity of the donations
in her capacity as administratrix of her mother’s estate, and to sue for the loss of
income to the estate occurring during the lifetime of the donor.
DONATION OMNIUM BONORUM
The cause of action known as a donation omnium bonorum is found in
Article 1498 of the Louisiana Civil Code, which provides:
The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence. If he does not do so, a donation of a movable is null for the whole, and a donation of an immovable is null for the whole unless the donee has alienated the immovable by onerous title, in which case the donation of such immovable shall not be declared null on the ground that the donor did not reserve to himself enough for his subsistence, but the donee is bound to return the value that the immovable had at the time that the donee
2 received it. If the donee has created a real right by onerous title in the immovable given to him, or such right has been created by operation of law since the donee received the immovable, the donation is null for the whole and the donor may claim the immovable in the hands of the donee, but the property remains subject to the real right that has been created. In such a case, the donee and his successors by gratuitous title are accountable for the resulting diminution of the value of the property.
Although there is not an abundance of jurisprudence, the following
findings are evident from our review of the law pertaining to donations omnium
bonorum. First, the right to attack such a donation may only be brought by the donor,
during his/her lifetime, or by their forced heirs. Maxwell v. Maxwell, 180 La. 35, 156
So. 166 (La.1934); Haynes v. Haynes, 02-535 (La.App. 1 Cir. 5/9/03), 848 So.2d 35;
Owen v. Owen, 325 So.2d 283 (La.App. 2 Cir. 1975), reversed on other grounds, 336
So.2d 782 (La.1976); Succession of Moran v. Moran, 25 So.2d 302 (La.App. 1 Cir.
1946).
Second, a donation omnium bonorum is absolutely null and, as such, is
imprescriptible. Broussard v. Doucet, 236 La. 217, 107 So.2d 448 (La.1958);
Abshire v. Levine, 546 So.2d 642 (La.App. 3 Cir. 1989); Owen, 325 So.2d 283;
Givens v. Givens, 273 So.2d 863 (La.App. 2 Cir.), writ denied, 275 So.2d 868 (1973).
Louisiana Civil Code Article 7 provides, “Persons may not by their juridical acts
derogate from laws enacted for the protection of the public interest. Any act in
derogation of such laws is an absolute nullity.” It is well settled that the public policy
behind this statute is to prevent a donor from divesting him/herself of all of their
property such that they become a ward of the state.
Based on the foregoing, we find that the trial court correctly granted the
peremptory exception of no right of action with regard to Virgie’s standing to bring
3 this suit in her capacity as the administratrix of Olivia’s estate. Further, based on the
forced heirship laws in effect at the time of Olivia’s death, the trial court correctly
held that Virgie had no standing to bring this action as a forced heir of Olivia, but did
have standing as a forced heir of Ira. The forced heirship laws, as amended in 1996,
provided that only a child, twenty-three years old or younger at the time of his/her
parent’s death, qualified as a forced heir. The record suggests that Virgie was in her
sixties in 1992; thus, she would have been well past the age limit for forced heirship
when Olivia died in 2000.
Alfred argues that Virgie’s claim in her capacity as a forced heir of Ira
is prescribed as her claim is simply an action to reduce an excessive donation
impinging on her legitime. He cites La.Civ.Code arts. 1503 and 1504. Louisiana
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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
NO. 06-1271
VIRGIE MAE BERTRAND TRAHAN, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE SUCCESSION OF OLIVIA BELLARD BERTRAND
VERSUS
ALFRED LOUIS BERTRAND, SR.
********** APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C-477-05 HONORABLE CHARLES QUIENALTY, DISTRICT JUDGE, AD HOC
**********
GLENN B. GREMILLION JUDGE
Court composed of Glenn B. Gremillion, Michael G. Sullivan, and James T. Genovese, Judges.
WRIT DENIED.
James B. Doyle P. O. Box 5241 Lake Charles, LA 70606-5241 (337) 474-9989 Counsel for Plaintiff/Respondent: Virgie Mae Bertrand Trahan Succession of Olivia Bellard Bertrand Michael E. Roach P. O. Box 1747 Lake Charles, LA 70602 (337) 436-2900 Counsel for Plaintiff/Respondent: Virgie Mae Bertrand Trahan Succession of Olivia BellardBertrand
Tim Cassidy Cassidy & Gunnell P.O. Box 1446 Jennings, LA 70546 (337) 824-7322 Counsel for Defendant/Applicant: Alfred Louis Bertrand, Sr. GREMILLION, Judge.
The plaintiff, Virgie Mae Bertrand Trahan, and the defendant, Alfred
Louis Bertrand, Sr., both seek supervisory writs on the trial court’s judgment granting
in part and denying in part a peremptory exception of no right of action in favor of
Alfred and the denial of his peremptory exception of prescription. For the foregoing
reasons, we deny the writs.
FACTS
Ira Bertrand and Olivia Bellard Bertrand were the parents of Virgie and
Alfred. On September 24, 1992 and September 30, 1992, Ira and Olivia executed
inter vivos donations of immovable property in favor of Alfred. Ira passed away on
October 25, 1992. Olivia passed away on September 2, 2000, after which Virgie was
appointed administratrix of her estate. On July 11, 2005, Virgie filed a Petition to
Declare Donations Null and Void seeking to have the 1992 donations to Alfred
declared null and void as donations omnium bonorum, pursuant to La.Civ.Code art.
1489. She filed the petition individually as an heir and as administratrix of her
mother’s estate. In her petition, she alleged that the two donations divested her
parents of all of their real estate and its accompanying income leaving them in
necessitous circumstances. Thus, she alleged that the property or its value should be
returned to her parents’ estates and that Alfred was indebted to the estates for all
proceeds generated from the property.
In response to the petition, Alfred filed an answer and peremptory
exceptions of no right of action and prescription. Following a hearing on the
exceptions, the trial court rendered judgment sustaining the exception of no right of
1 action as to Virgie’s standing to file the petition in her capacity as administratrix of
her mother’s estate and in her individual capacity as a forced heir to her mother.
However, it denied the exception as to her capacity as a forced heir of her father.
Finally, it denied the exception of prescription finding that a cause of action based on
a donation omnium bonorum was imprescriptible. Virgie and Alfred both sought
supervisory writs from this judgment.
ISSUES
In his writ application, Alfred questions whether Virgie has a right of
action to challenge the donations made to him by his father, pursuant to La.Civ.Code
art. 1498, and whether her claim has prescribed pursuant to the civil code articles
pertaining to reduction of an excessive donation. Virgie, on the other hand, questions
whether she has the right, as an heir of her mother, to seek the nullity of a donation
omnium bonorum following the abolition of forced heirship pursuant to La.Civ.Code
art. 1493. She further asks whether she has a right to seek the nullity of the donations
in her capacity as administratrix of her mother’s estate, and to sue for the loss of
income to the estate occurring during the lifetime of the donor.
DONATION OMNIUM BONORUM
The cause of action known as a donation omnium bonorum is found in
Article 1498 of the Louisiana Civil Code, which provides:
The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence. If he does not do so, a donation of a movable is null for the whole, and a donation of an immovable is null for the whole unless the donee has alienated the immovable by onerous title, in which case the donation of such immovable shall not be declared null on the ground that the donor did not reserve to himself enough for his subsistence, but the donee is bound to return the value that the immovable had at the time that the donee
2 received it. If the donee has created a real right by onerous title in the immovable given to him, or such right has been created by operation of law since the donee received the immovable, the donation is null for the whole and the donor may claim the immovable in the hands of the donee, but the property remains subject to the real right that has been created. In such a case, the donee and his successors by gratuitous title are accountable for the resulting diminution of the value of the property.
Although there is not an abundance of jurisprudence, the following
findings are evident from our review of the law pertaining to donations omnium
bonorum. First, the right to attack such a donation may only be brought by the donor,
during his/her lifetime, or by their forced heirs. Maxwell v. Maxwell, 180 La. 35, 156
So. 166 (La.1934); Haynes v. Haynes, 02-535 (La.App. 1 Cir. 5/9/03), 848 So.2d 35;
Owen v. Owen, 325 So.2d 283 (La.App. 2 Cir. 1975), reversed on other grounds, 336
So.2d 782 (La.1976); Succession of Moran v. Moran, 25 So.2d 302 (La.App. 1 Cir.
1946).
Second, a donation omnium bonorum is absolutely null and, as such, is
imprescriptible. Broussard v. Doucet, 236 La. 217, 107 So.2d 448 (La.1958);
Abshire v. Levine, 546 So.2d 642 (La.App. 3 Cir. 1989); Owen, 325 So.2d 283;
Givens v. Givens, 273 So.2d 863 (La.App. 2 Cir.), writ denied, 275 So.2d 868 (1973).
Louisiana Civil Code Article 7 provides, “Persons may not by their juridical acts
derogate from laws enacted for the protection of the public interest. Any act in
derogation of such laws is an absolute nullity.” It is well settled that the public policy
behind this statute is to prevent a donor from divesting him/herself of all of their
property such that they become a ward of the state.
Based on the foregoing, we find that the trial court correctly granted the
peremptory exception of no right of action with regard to Virgie’s standing to bring
3 this suit in her capacity as the administratrix of Olivia’s estate. Further, based on the
forced heirship laws in effect at the time of Olivia’s death, the trial court correctly
held that Virgie had no standing to bring this action as a forced heir of Olivia, but did
have standing as a forced heir of Ira. The forced heirship laws, as amended in 1996,
provided that only a child, twenty-three years old or younger at the time of his/her
parent’s death, qualified as a forced heir. The record suggests that Virgie was in her
sixties in 1992; thus, she would have been well past the age limit for forced heirship
when Olivia died in 2000.
Alfred argues that Virgie’s claim in her capacity as a forced heir of Ira
is prescribed as her claim is simply an action to reduce an excessive donation
impinging on her legitime. He cites La.Civ.Code arts. 1503 and 1504. Louisiana
Civil Code Article 1503 states, “A donation, inter vivos or mortis causa, that
impinges upon the legitime of a forced heir is not null but merely reducible to the
extent necessary to eliminate the impingement.” Louisiana Civil Code Article 1504
provides:
An action to reduce excessive donations may be brought only after the death of the donor, and then only by a forced heir, the heirs or legatees of a forced heir, or an assignee of any of them who has an express conventional assignment, made after the death of the decedent, of the right to bring the action.
He further cites La.Civ.Code art. 3497, which allows an heir five years in which to
bring an action to reduce an excessive donation.
Alfred cites several cases and the Louisiana Civil Law Treatise in
support of his argument. The treatise states that “[f]orced heirs have been permitted
to challenge such donations after the donor’s death, yet only to the extent of their
4 legitimes.” Frederick William Swaim, Jr., and Kathryn Venturatos Lorio, 10
Louisiana Civil Law Treatise, Succession and Donations, § 11.11, p. 290 (1995)
(citing Succession of Turgeau, 130 La. 650, 58 So. 497 (1912)). The authors then
posed the following question:
An interesting question remains as to the time forced heirs have to challenge such a donation. Is it five years as with any reduction, or is the action not subject to prescription because a donation omnium bonorum is absolutely null? If the action is to be treated as a reduction, limiting the forced heirs to their legitime, then perhaps the prescriptive period for reduction should control.
Id.
We disagree that the five-year liberative prescriptive period applies in
this instance. Virgie’s cause of action is based on alleged prohibited donations
omnium bonorum, in which Olivia and Ira divested themselves of so much of their
property that they could no longer support themselves. We agree with the trial court
that once a donation is an absolutely nullity, it cannot somehow become legitimate
again. As stated in Pardon v. Moore, 39,949, pp. 10-11 (La.App. 2 Cir. 8/17/05),
908 So.2d 1253, 1259 (citing Gram Realty Co. v. Northern Homes, Inc., 308 So.2d
502 (La.App. 1 Cir. 1975)), “The prescription of five years cannot cure a defect in a
tax sale which is absolutely null and void as no peremptive or prescriptive period can
breathe life into something that never existed.” If the donations by Ira and Olivia are
found to be donations omnium bonorum, then they are prohibitive donations which
are absolutely null and void and considered as never having existed. Thus, we find
no merit in Alfred’s argument that just because the action is brought by Virgie, the
donations are revived so that Article 3497 prevents her from pursing her cause of
action. Rather, we agree with the second circuit that Article 3497 does not act in such
5 a way that the five-year prescriptive period found therein cures the defective
donations and then acts to deprive her of her cause of action. Accordingly, we find
that the trial court correctly held that Virgie’s right to bring this suit, in her capacity
as a forced heir of Ira, is imprescriptible.
CONCLUSION
For the foregoing reasons, the writ filed by Alfred Louis Bertrand, Sr.,
on the peremptory exceptions of no right of action and prescription is denied. We
further deny the writ filed by Virgie Mae Bertrand Trahan. The costs of these writs
are assessed equally to the parties.