Succession of Elizabeth Smith Foster .

SUCCESSION OF ELIZABETH * NO. 2019-CA-0209
SMITH FOSTER
*
COURT OF APPEAL
*
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2014-08855, DIVISION “A”
Honorable Ellen M Hazeur, Judge
******
Judge Rosemary Ledet
******
(Court composed of Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Tiffany
G. Chase)

John A. E. Davidson
Christopher J. Davidson
DAVIDSON & DAVIDSON, APLC
2901 Independence Street
Suite 201
Metairie, LA 70006

COUNSEL FOR PLAINTIFFS/APPELLANTS

C. Hunter King
THE KING LAW FIRM
2245 Virginia Street
Baton Rouge, LA 70802

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED

JULY 31, 2019

This is a succession case. Dona Foster Zeno opened the succession of her

mother, Elizabeth Smith Foster, by filing a petition attaching Mrs. Foster’s notarial

testament. The trial court rendered a judgment ordering that the testament be filed

and executed according to its terms. From that judgment, Ms. Zeno’s brothers—

Etheridge Foster, Larry Foster, and Melvin Foster (collectively the “Foster

Brothers”)—appeal. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Before her death, Mrs. Foster was married twice. First, she was married to

Clay Williams. Of that marriage, two children were born—Fay Tubman1 and Artis

Atkins. Second, she was married to Charles Foster, Sr. Of that marriage, five

children were born—Ms. Zeno, the Foster Brothers, and Charles Foster, Jr.2 Ms.

Zeno has two children—Meleka King Pierce and Alvin King.

On August 4, 1998, Mrs. Foster executed a notarial testament. The testament

disposed of Mrs. Foster’s estate as follows:

I give and bequeath to my daughter, Donna Foster [Zeno], as a
special legacy, my entire estate, including my home located at 413,

1
Ms. Tubman is deceased.
2
Both Charles Foster, Sr., and Charles Foster, Jr., are deceased.

1

415 State Street and the real estate on which the home is situated,
along with all furniture and fixtures and any other assets that I might
own at the time of my death, on the sole condition that she allow Fay
Tubman, Artis Atkins and Meleka King to live at 415 State Street so
long as they may choose to do so.

In the event that my daughter, Donna Foster [Zeno], should
decide not to accept this condition, then I give and bequeath to my
children. Fay Tubman, Artis Atkins and Donna Foster [Zeno] and to
my grandchildren, Alvin King and Meleka King [Pierce], in equal
portions, the full ownership of my entire estate.

On October 2, 2013, Mrs. Foster died. On September 9, 2014, Ms. Zeno

opened Mrs. Foster’s succession by filing a petition. Attached to the petition was a

document purporting to be Mrs. Foster’s notarial testament. The trial court ordered

that the testament be filed and executed according to its terms and rendered

judgment placing Ms. Zeno in possession of Mrs. Foster’s estate.3

The Foster Brothers filed a petition to annul the judgment, asserting that the

testament was not in original form and was, thus, presumed revoked; that Ms. Zeno

had not rebutted the presumption of revocation; and, in the alternative, that the

terms of the testament were invalid as a matter of law. In response, Ms. Zeno

conceded that the testament attached to the petition was not in original form, but

she contended that the trial court’s judgment was nonetheless valid.

The trial court found that the document attached to Ms. Zeno’s petition was

not Mrs. Foster’s original testament and that, thus, for the judgment to be valid, La.

C.C.P. art. 2854 required that a notary conduct a search for the original.4 Because

3
See La. C.C.P. art 2891 (providing that “[a] notarial testament, a nuncupative testament by
public act, and a statutory testament do not need to be proved. Upon production of the testament,
the court shall order it filed and executed and this order shall have the effect of probate”).
4
La. C.C.P. art. 2854 provides, in relevant part, that “[i]f the testament is not in the possession of
the petitioner, he shall pray that the court direct that a search be made for the testament by a
notary of the parish.”

2

this had not been done, the trial court, pursuant to La. C.C.P. arts 19715 and 1972,6

annulled its prior judgment and ordered a trial.7

After the trial, on January 2, 2019, the trial court rendered judgment in favor

of Ms. Zeno and against the Foster Brothers. In its judgment, the trial court made

the following findings:

After further review of the pleadings and the testimony offered
at the hearing, the Court finds that a copy of the statutory testament
offered by Donna Foster Zeno should be permitted to be filed into the
record of these proceedings, the Court finding that the said document
is a valid copy of the last will and testament of Elizabeth Smith Foster
. . . . The evidence does not support that the decedent had either
revoked or destroyed the original of her testament prior to her death.
Further, the Court is satisfied, based on its review of the pleadings and
testimony, that, the “Statutory Will” captures and otherwise, expresses
the decedent’s testamentary intent.

The Court finds that the provisions of the will concerning
ownership of the property located at 413,415 State Street to be valid
and enforceable. The first provision grants ownership of the property
to Donna Foster Zeno subject to a use as a domicile by Ms. Zeno’s
half-sisters, Fay Tubman and Artis Atkins, and Ms. Zeno’s daughter,
Meleka King as long as they choose to reside there. The Court finds
that the decedent’s testamentary intent was to create a usufruct in
favor of Fay Tubman, Artis Atkins and Meleka King with the naked
ownership of the property in favor of Donna Foster Zeno. Thus, the
enjoyment of the property by Fay Tubman, Artis Atkins and Meleka
King, by the terms of the testament, necessarily ends at the earlier of
their individual decisions not to use the home or upon their deaths.

5
La. C.C.P. art. 1971 provides, in relevant part, that “[a] new trial may be granted, upon
contradictory motion of any party or by the court on its own motion, to all or any of the parties
and on all or part of the issues, or for reargument only.”
6
La. C.C.P. art. 1972 provides, in relevant part, that “[a] new trial shall be granted, upon
contradictory motion of any party, . . . [w]hen the verdict or judgment appears clearly contrary to
the law and the evidence.”
7
See La. C.C.P. art. 2901 (providing, in relevant part, that “[i]f an objection is made to the ex
parte probate of a testament, . . . the testament may be probated only at a contradictory trial of
the matter”). The trial court also appointed a notary to conduct a search for Mrs. Foster’s original
will. Pursuant to that order, the notary conducted a search and entered into the record a notice of
evidence testifying that the notary had conducted a search of Mrs. Foster’s residence but was
unable to locate Mrs. Foster’s original will.

3

Accordingly, the trial court ordered that the testament be filed and executed

according to its terms. This appeal followed.

DISCUSSION

This case presents essentially two issues: whether Ms. Zeno rebutted the

presumption of revocation; and whether the terms of the testament are valid. We

address each issue separately.

Presumption of Revocation

It is uncontested that Mrs. Foster’s original testament cannot be located and

that the document attached to the petition is a copy. “[T]he failure to find a will

which was duly executed and in the possession of, or readily accessible to, the

testator, gives rise to a legal presumption of revocation by destruction . . . .”

Succession of Talbot, 530 So.2d 1132, 1134-35 (La. 1988). The presumption also

arises when a copy of the testament exists but the original cannot be located. Id.

The presumption is rebuttable, however, “and so may be overcome by

sufficient evidence.” Id. As a general matter, the presumption “may be rebutted by

clear proof (1) that the testator made a valid will; (2) of the contents or

substantiality of the will; and (3) that the will was not revoked by the testator.”

Succession of Dalier, 09-0393, p. 3 (La. App. 4 Cir. 8/12/09), 19 So.3d 8, 10

(quotation marks omitted) (citing Succession of Claiborne, 99-2415, p. 3 (La. App.

1 Cir. 11/3/00), 769 So.2d 1267, 1268 (in turn citing Succession of Nunley, 224 La.

251, 69 So.2d 33, 35 (1953))).

In this case, the first two requirements are met. As noted, it is uncontested—

indeed, the testimony at trial established—that Mrs. Foster executed a valid

4

notarial testament on August 4, 19988 and that the document attached to the

petition is a copy of that testament.

Regarding the third requirement—proof that the testament was not revoked

by the testator—it has been observed that “[c]lear and convincing proof that a

person other than the testator destroyed the will without the direction, consent or

permission of the testator would be sufficient to overcome the presumption that the

testator revoked the will by destroying it.” Succession of Doucet, 42,963, p. 7 (La.

App. 2 Cir. 2/6/08), 975 So.2d 738, 741-42 (citing Succession of Bagwell, 415

So.2d 238 (La. App. 2d Cir. 1982)). Moreover, the jurisprudence has “recognized a

sliding scale of proof sufficient to rebut the presumption depending on the

8
At the time, the requirements of a notarial testament for a testator who was able to read and
write were as follows:

The notarial testament shall be prepared in writing and shall be dated and
executed in the following manner. If the testator knows how to sign his name and
to read, and is physically able to do both, then:

(1) In the presence of the notary and two competent witnesses, the testator
shall declare or signify to them that the instrument is his testament and
shall sign his name at the end of the testament and on each other separate
page.

(2) In the presence of the testator and each other, the notary and the
witnesses shall sign the following declaration, or one substantially similar:
“In our presence the testator has declared or signified that this instrument
is his testament and has signed it at the end and on each other separate
page, and in the presence of the testator and each other we have hereunto
subscribed our names this ____day of _________, ____.”

La. C.C. art. 1577 (added by Acts 1997, No. 1421, § 1, eff. July 1, 1999); see also La. C.C. art.
1577, cmt. (a) (noting that “[t]his article reproduces the substance of R.S. 9:2442,” which was
repealed when La. C.C. art. 1577 was enacted, and, thus, “d[id] not change the law”). The will
attached to the petition is in writing; attests that Mrs. Foster was able to read and write; is signed
and dated on each page; and bears the signatures of a notary and two witnesses, all of whom
declared as follows:

The Testator has signed this will consisting of two pages at the end and on
each separate page, and has declared or signified in our presence that it is her last
will and testament, and in the presence of the testator and each other we have
hereunto [subscribed] our names this 4th day of August, 1998 in Metairie,
Louisiana.

Thus, the testament is in valid notarial form.

5

weakness or strength of the evidence surrounding the lost original.” Succession of

Altazan, 96-0409, pp. 4-5 (La. App. 1 Cir. 11/8/96), 682 So.2d 1320, 1322. In

Talbot, the Supreme Court articulated the factors governing the strength of the

presumption as follows:

The presumption may be weak or strong, and more or less
easily rebuttable, depending on the clarity of the evidence as to
whether the testator was the author of the will’s destruction, whether
he expressed an intention to revoke the will, whether he had access to
other originals of the will prior to his death, whether he treated any
ext[a]nt copy of the will as not having been revoked, and as to any
other issue bearing upon the testator’s intention with respect to the
destruction and revocation of the will.

530 So.2d. at 1135. A trial court’s determination as to whether the presumption of

revocation has been rebutted is reviewed under the manifest error-clearly

erroneous standard of review. See Succession of Beard, 483 So.2d 1228, 1230 (La.

App. 4th Cir. 1986); see also Succession of Doucet, 42,963, p. 7 (La. App. 2 Cir.

2/6/08), 975 So.2d 738, 742 (observing that “[t]he district court’s findings of fact

regarding the presumed revocation of a will by destruction are subject to manifest

error review”).

In this case, the presumption of revocation is weak. There is no evidence that

Mrs. Foster was the author of the testament’s destruction, that she ever expressed

an intention to revoke the testament, or that she ever treated any copy of the

testament as having been revoked.

To the contrary, Ms. Zeno offered considerable evidence that Mrs. Foster

did not revoke her testament. The testimony at trial established that Mrs. Foster’s

testament was destroyed as a result of water damage caused by Hurricane

Katrina—that is, without her “direction, consent or permission.” The evidence

further established that, in addition to the copy of the testament in Mrs. Foster’s

6

possession, the attorney who drafted the testament retained in his records either the

original or a copy of the testament;9 that Hurricane Katrina also destroyed the

testament in her attorney’s possession; and that Mrs. Foster’s attorney did not

inform Mrs. Foster of the destruction of the testament in his possession. Thus, from

Hurricane Katrina to her death in 2013, Mrs. Foster reasonably could have

believed that, notwithstanding the inadvertent destruction of the testament in her

possession, her attorney still retained at least a copy, if not the original testament.

In opposition to this evidence, the Foster Brothers offered photographs and

expert testimony purporting to establish that the roof of Mrs. Foster’s home was

not damaged by Hurricane Katrina. Ms. Zeno’s counsel, however, established that

siding was missing from the back of the home—where the closet in which Mrs.

Foster stored her testament was located—and that, notwithstanding the condition

of the roof and because of the overall condition of the home, rainwater “could

possibly [have been] diverted into the house.”

In light of the evidence offered in this case and the weakness of the

presumption, we cannot say the trial court’s finding that Ms. Zeno rebutted the

presumption of revocation was manifestly erroneous. We next consider the issue of

which terms of Mrs. Foster’s testament, if any, control the disposition of her estate.

Terms of the Testament

“The intent of the testator controls the interpretation of his testament.” La.

C.C. art. 1611. Thus, it has been observed that “[t]he intent of the testator is the

9
The attorney who drafted Mrs. Foster’s will testified at trial that he could not remember
whether the will in his possession was the original, a duplicate original, or merely a copy; he also
testified, however, that his “customary practice would have been to keep an original [and] give
an original to the client.”

7

paramount consideration in determining the provisions of a will.” Succession of

Williams, 608 So.2d 973, 975 (La. 1992).

“If the language of a testament is unambiguous, its letter is not to be

disregarded under the pretext of pursuing its spirit;” and “rules for interpretation

apply only when the testator’s intent cannot be ascertained from the language of

the testament.” La. C.C. art. 1611. “Language is ambiguous when it can be

reasonably interpreted to mean different things.” Succession of Theriot, 16-639, pp.

8-9 (La. App. 3 Cir. 5/17/17), 221 So.3d 862, 868-69 (quoting Adams v. Willis, 00-

589 p. 5 (La. App. 3 Cir. 11/2/00), 777 So.2d 5, 9) (quotation marks omitted). The

determination of whether language is ambiguous is a question of law. Louisiana

Ins. Guar. Ass'n v. Interstate Fire & Cas. Co., 93-911 (La. 1/4/94), 630 So.2d 759,

764. Questions of law are reviewed under a de novo standard of review. Succession

of Harlan, 17-1132, p. 5 (La. 5/1/18), 250 So.3d 220, 223.

In this case, the trial court determined that the language of Mrs. Foster’s

testament “captures and otherwise[] expresses the decedent’s testamentary intent.”

That intent, the trial court determined, “was to create a usufruct in favor of [Ms.]

Tubman, [Ms.] Atkins and [Ms. Pierce] with the naked ownership of the property

in favor of [Ms.] Zeno.” We agree.10

10
The Foster Brothers suggest that Mrs. Foster’s omission of the word “usufruct” from her testament
renders the testament ambiguous. We disagree for two reasons. First, it is well-settled that the failure
to use the word “usufruct” (or, for that matter, “use,” “use and benefit,” or “enjoyment”) “is not
fatal to the validity of [a] bequest as a usufruct.” Succession of Moran, 479 So.2d 350, 352 (La.
1985) (citing Succession of Goode, 425 So. 2d 673, 681 (La. 1982)). “What is required is a
manifestation of the will of the testator to confer less than full ownership to the legatee.” Id. The
language of Mrs. Foster’s testament unambiguously manifests her intent to confer use of the home on
Ms. Tubman, Ms. Atkins, and Ms. Pierce and to confer naked ownership of the home on Ms. Zeno.
Second, the Civil Code requires that “[a] disposition should be interpreted in a sense in which it
can have effect, rather than one in which it can have none.” La. C.C. art. 1612. The Foster
Brothers concede that, if the testament is read as not conferring a usufruct, “[w]e are left with an
undefined interest in real property” and that “[o]ur law does not support [the]creation of novel
interests in real property.” Accordingly, the Foster Brothers’ construction, which would render
the disposition without effect, must yield to the trial court’s construction.

8

The Foster Brothers concede that “granting a usufruct or right of habitation

to [Ms. Tubman, Ms. Atkins, and Ms. Pierce]” would be “[a] lawful disposition,”11

They contend, however, that Ms. Zeno’s right to accept naked ownership of the

home subject to the usufruct or to reject the legacy, thereby triggering operation of

the alternative legacy, constitutes a testamentary disposition committed to the

choice of a third person, in violation of La. C.C. art. 1572.12

Ms. Zeno, however, is not a third person—she is an heir. See generally

Derouen v. Derouen, 03-623 (La. App. 3 Cir. 1/28/04), 865 So.2d 940 (discussing

in detail the history of and jurisprudence interpreting La. C.C. art. 1572; observing

that there is “no jurisprudence that directly addresses . . . whether under Article

1572, an heir and/or particular legatee is a ‘third person’ to whom a testamentary

disposition is committed”; and concluding that an heir is “not a third party to the

will and that Article 1572 is [thus] not applicable”); see also Fontenot v. Fontenot,

339 So.2d 897, 903, n. 1 (La. App. 3rd Cir. 1976) (observing that “generally

speaking, legal heirs are not regarded as third persons in the law”). Mrs. Foster’s

testament confers on Ms. Zeno, as an heir, no greater authority than is conferred on

any heir—the choice either to accept or reject a legacy. Such a choice does not

violate La. C.C. art. 1572.

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed.

AFFIRMED

11
See La. C.C. art. 1522 (providing that “[a] disposition inter vivos or mortis causa by which the
usufruct is given to one person and the naked ownership to another is not a prohibited
substitution”).
12
La. C.C. art. 1572 (provides, in relevant part, that “[t]estamentary dispositions committed to
the choice of a third person are null, except as expressly provided by law.”

9