Succession of Cladie J. Wade

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #014

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 21st day of March, 2025 are as follows:

BY Hughes, J.:

2024-C-00635 SUCCESSION OF CLADIE J. WADE (Parish of Rapides)

REVERSED AND REMANDED. SEE OPINION.

Justice Jeanette Theriot Knoll, retired, heard this case as Justice Pro
Tempore, sitting in the vacant seat for District 3 of the Louisiana Supreme
Court. She is now appearing as Justice ad hoc for Justice Cade R. Cole.

Weimer, C.J., additionally concurs and assigns reasons.

SUPREME COURT OF LOUISIANA

No. 2024-C-00635

SUCCESSION OF CLADIE J. WADE

On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Rapides

HUGHES, J.*

This case presents two questions for this court. First, is the 2009 codicil valid

in whole or in part and does it revoke the conditional legacy in the 2007 will?

Second, is the conditional legacy in the will valid? We hold that the attempted

conditional legacy in the codicil is invalid, that the conditional legacy in the will is

not revoked, and that the conditional legacy in the will is valid. We reverse the

decisions of the lower court, and remand for proceedings consistent with this

opinion.

FACTS

Cladie J. Wade died testate on May 8, 2011 while domiciled in Rapides Parish,

Louisiana. She executed a statutory will on August 13, 2007, dividing most of her

estate between her children Alma Rea Wade and Carl Wade. She also executed a

codicil on November 17, 2009. The issue presented in the case at bar concerns a

rental property in Oakland, California and conditional legacies in the August 13,

2007 will and 2009 codicil. The California property was never owned by Cladie as

it was bequeathed to Alma by a family member.

* Justice Jeanette Theriot Knoll, retired, heard this case as Justice Pro Tempore, sitting in the
vacant seat for District 3 of the Louisiana Supreme Court. She is now appearing as Justice ad hoc
for Justice Cade R. Cole.

The conditional legacy in the 2007 will states:

With respect to the property in Oakland, California which was
owned by Theodore Harris and willed to me but placed in the name of
Alma Rea Wade’s name [sic] for accommodating purposes only, I will
and bequeath that this property be sold and after all obligations
incidental to the sale of the property have been paid, the remaining
portion is to be divided equally among CARL WADE, ALMA REA
WADE and CLADIE J. WADE. . . .
If ALMA REA WADE does not sell the property in California
and divide the proceeds from the sale in the manner I have previously
suggested, I will and bequeath that all bequests I have made to Alma
Rea Wade would be revoked and all of those bequests would go to
CARL WADE. In other words, if she does not sell the property and
divide the assets as requested, she is not to receive any bequests from
me; Carl is to receive everything.

The 2009 codicil, styled as an “addendum,” stated:

The original will dated August 13, 2007 is to remain in effect “as
is”. I revoke any and all subsequent wills I may have made revoking
the contents of the will of August 13, 2007.
On this day, I reaffirm that the will and testament that I expect to
be probated, upon my death, is the will and testament dated August 13,
2007 executed before the undersigned notary.
The purpose for my adding this addendum is to resolve the
dispute involving the property that is located at 1501 Campbell Street,
Oakland, California. With respect to that property which is in the name
of Theodore Harris of which I am the owner, I will and bequeath that if
the property is not sold prior to my death, I want the property to be
owned equally by my two children, namely: ALMA REA WADE and
CARL J. WADE. Further, if the property does not sell quickly or does
not sell for what my two children feel is a fair and just amount, I will
and bequeath that the property will continue to be rented and after all
expenses are subtracted from the monthly rental, the residue will be
divided equally between my two children, ALMA REA WADE and
CARL J. WADE.
When the property in California is sold, then the proceeds will
be divided equally between my two children. [Emphasis in original.]

PROCEDURAL HISTORY

This is the second time this court has considered this case.

The Prior Judgment

Initially, Alma challenged the conditional legacy in the 2007 will through

summary judgment. Alma also challenged the conditional legacy in the 2009 codicil.

Alma argued that the condition on her legacy -- to sell the California property and

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divide the proceeds with Carl -- was in contravention of Louisiana Civil Code article

1519 as it is “contrary to the laws or to morals.” Carl argued that the conditional

legacy is an optional bequest not repugnant to the law or to good morals, and that

Cladie’s intent is clear and should be enforced.

The trial court upheld the conditional legacy in the 2007 will and gave Carl

possession of Alma’s share. This judgment was suspended for forty-five days to

allow Alma to sell the California property if she chose to do so. Alma appealed.

Without addressing the codicil, the court of appeal reversed on the basis that the

conditional legacy was illegal and void under Louisiana Civil Code article 1519,

concluding:

We cannot sanction allowing Cladie to accomplish after death
that which she could not lawfully do during her life. Further, we believe
to rule otherwise would result in far-reaching consequences of
elevating a testator’s intent over the public interest of property
ownership. . . .
Simply stated, Cladie’s testamentary rights cannot outweigh
Alma’s property ownership rights. We feel that to rule any other way
would condone the ‘wishes and conceits of the dead’ at the expense of
‘the rules of public order and policy which regulate the living.’

Succession of Wade, 20-589 (La. App. 3 Cir. 7/21/21), 326 So.3d 306, 307, 311

(quoting Succession of Feitel, 146 So. 145, 147 (La. 1933)).

This court granted Carl’s writ application and vacated the judgments of the

trial court and court of appeal, stating:

The condition attached to the daughter’s legacy in the testator’s
original will is a ‘testamentary provision’ subject to revocation under
Louisiana Civil Code article 1608(2). Although the subsequent codicil
does not mention the condition, it does address the ownership and use
of the immovable property targeted by the condition. These codicil
provisions are vague and ambiguous insofar as they bear on the
testator’s intent as to the condition. The interpretation of the codicil
involves factual questions that are not appropriate for resolution by
summary judgment. See La. Code Civ. Pro. art. 966; see also La. Civ.
Code art. 1611A; Succession of Stewart, 301 So. 2d 872, 877 (La.
1974); In re Succession of Bernat, 11-368 (La. App. 3 Cir. 11/2/11), 76
So. 3d 1287, 1291, writ denied, 12-0263 (La. 3/30/12), 85 So. 3d 122.

Succession of Wade, 21-1171 (La. 11/23/21), 328 So.3d 72.

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The Instant Judgment

After a hearing where Carl and Alma testified,1 the trial court entered a

judgment on December 13, 2022 finding that “the disinherison clause in the will and

the related clause in the codicil to both be invalid” because “they involved the

decedent’s exercising control over property in California which she did not own.”

The court of appeal affirmed in a 3-2 decision. Succession of Wade, 23-252

(La. App. 3 Cir. 4/24/24), 387 So.3d 831. It held that the will and the codicil contain

bequests concerning a property that the testator did not own and are therefore without

effect. The court of appeal also held that the 2009 codicil, while not a valid legacy

of the California property, did have the effect of revoking the will’s disposition of

the California property and related condition. See In re Hendricks, 08-1914 (La.

App. 1 Cir. 9/23/09), 28 So.3d 1057.

LAW AND ANALYSIS

The first issue we must address is whether the bequest in the codicil is valid,

and if it is not valid, whether the codicil revokes the conditional legacy in the will.

Louisiana Civil Code article 1611(A) provides in part:

The intent of the testator controls the interpretation of his testament. If
the language of the testament is clear, its letter is not to be disregarded
under the pretext of pursuing its spirit.

Absent the existence of a forced heir, a testator is free to dispense of her estate

in any manner and impose any conditions not contrary to law or good morals. See

La. C.C. art. 1519 (“In all dispositions inter vivos and mortis causa impossible

conditions, those which are contrary to the laws or to morals, are reputed not

written.”). In cases involving null provisions of a will, “the invalidity of a portion of

a will does not invalidate the will in its entirety.” Succession of Walters, 259 So. 2d

12, 14 (La. 1972).

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The attorney who drafted the will and codicil died before the hearing.

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We agree with the lower courts that the provision found in the last two

paragraphs of the codicil are not valid. The codicil states: “With respect to that

property which is in the name of Theodore Harris of which I am the owner, I will

and bequeath that if that property is not sold prior to my death, I want the property

to be owned equally by my two children . . . .” The codicil goes on to state that if the

property does not sell quickly or does not sell for what Alma and Carl feel is a “fair

and just amount,” Cladie “will[s] and bequeath[s] that the property will continue to

be rented” and the proceeds divided equally between the children.

The disposition of the California property in the codicil is an impossibility

under Louisiana Civil Code article 1519 as Cladie did not own the property, despite

what was written in the will and codicil. Furthermore, even if she did own the

property, the provision in the codicil would not be valid as she is attempting to

control the use of property after her death. Succession of Feitel, 146 So. 145, 147

(La. 1933) (invalidating a provision against alienation or mortgaging for ten years).

Thus, this portion of the codicil is to be treated as not having been written. La. C. C.

art. 1519.

We disagree, however, with the appellate court’s determination that the

codicil revoked the will’s condition on the California property. Louisiana Civil Code

article 1608(2) provides: “Revocation of a legacy or other testamentary provision

occurs when the testator . . . [m]akes a subsequent incompatible testamentary

disposition or provision.” The 2009 codicil stated:

The original will dated August 13, 2007 is to remain in effect “as
is”. I revoke any and all subsequent wills I may have made revoking
the contents of the will of August 13, 2007.
On this day, I reaffirm that the will and testament that I expect to
be probated, upon my death, is the will and testament dated August 13,
2007 executed before the undersigned notary. (Emphasis in original.)

We find that this language in the codicil is clear that the 2007 will is not being

revoked by the codicil and that the 2007 will is to be probated. As stated in Judge

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Bradberry’s dissent, we would be “hard pressed to read that language as a revocation

of the 2007 will.” Succession of Wade, 387 So.3d 831 (Bradberry, J., dissent)

(unpub.). Once the invalid sections are deemed not written, as directed by Article

1519, there is nothing in the codicil that would revoke the conditional legacy in the

will. The codicil states that the will is to remain in effect “as is.” Given this clear

language, we hold that the codicil did not revoke the conditional legacy in the will.

The second issue presented is whether the conditional legacy in the will is

valid. The conditional legacy in the will states that if Alma “does not sell the property

in California and divide the assets as requested, she is not to receive any bequests

from me; Carl is to receive everything.”

Louisiana Civil Code article 1528 provides: “The donor may impose on the

donee any charges or conditions he pleases, provided they contain nothing contrary

to law or good morals.” This court has given effect to other conditional legacies. See,

e.g., Baten v. Taylor, 386 So.2d 333 (La. 1979) (enforcing a will bequeathing

property to testator’s wife upon the condition that she survive him for thirty days,

or, if the condition is not fulfilled, to his nephews, finding such provision not

contrary to law); Succession of Ruxton, 78 So.2d 183 (La. 1955) (enforcing provision

in a will bequeathing a sum of money to legatee on condition she was unmarried at

the time of testator’s death, finding such a provision was not against good morals

and there was no law prohibiting it).

In Succession of Wagner, the testator, whose wife pre-deceased him, wished

for his girlfriend to inherit a certain piece of land and made that bequest in his will.

Succession of Wagner, 431 So.2d 10, 11 (La. App. 4 Cir. 1983). The land was

community property, so the testator owned an undivided one-half interest. His will

provided: “In the event that any of my children should object to the above and

foregoing disposition of that particular lot to Marie Amick, then I will and bequeath

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to the said Marie Amick the disposable portion of my entire estate.” Id. By reviewing

the will and the testimony of the attorney who drafted it, the court concluded that the

testator was fully aware he could not bequeath full ownership in the lot and needed

the “concurrence of his children” in order to effect his wishes. Id. at 12. The court

further concluded that such a provision was within the parameters of Article 1528.

Id. The court noted that the children could not be required to transfer their interest

in the lot and that the conditional bequest did not deprive the forced heirs of anything

to which they were legally entitled. Id.

It is true, as the lower courts note, that one cannot bequeath what one does not

own, and any such legacy is void to that extent. La. C.C. art. 1519; Succession of

Marion, 112 So. 667 (1927). It is also true that a testator cannot attempt to control

use of a property after death. Succession of Feitel, 146 So. at 147. Here, the testator

was directing the disposition of her own property at death by means of a conditional

legacy, so the question is whether the provision is contrary to law or good morals.

Succession of Maloney, 23-01447 (La. 9/4/24), 392 So.3d 302, 305 (“Absent the

existence of a forced heir, a testator is free to dispense of her estate in any manner

and impose any conditions not contrary to law or good morals. See La. C.C. arts.

1519 and 1528.”)

In the present case, Alma is not a forced heir, and Cladie was not obligated to

leave her anything. Although Cladie did not own the California property, she was

not attempting to bequeath that property, nor was she attempting to control the use

of bequeathed property after her death. Like the children in Wagner, the conditional

provision simply gives Alma a choice to sell the California property in order to

receive an inheritance. We find nothing in this conditional legacy to be contrary to

law or good morals.

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CONCLUSION

Based on the forgoing, we hold that the 2009 codicil did not revoke the

conditional legacy in the will concerning the property in Oakland, California, and

that the conditional legacy in the will is valid and enforceable. We reverse the

decisions of the lower courts, and remand for proceedings consistent with this

opinion.

REVERSED AND REMANDED.

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SUPREME COURT OF LOUISIANA

No. 2024-C-00635

SUCCESSION OF CLADIE J. WADE

On Writ of Certiorari to the Court of Appeal, Third Circuit,
Parish of Rapides

WEIMER, C.J., additionally concurring.

Although the evidence is not precisely clear, apparently the testator, Cladie

Wade, expected to be bequeathed the California property from her nephew. Cladie

was unable to visit her nephew in California immediately prior to his death, but her

daughter, Alma Wade, did go to California. Ultimately, the nephew willed the

California property to Alma rather than Cladie. Cladie’s disappointment in Alma

receiving the California property appears to have fueled Cladie’s decision to attempt

to ensure that her son, Carl Wade, and her daughter, Alma, received equal portions

of inherited property. When these facts are considered in conjunction with the

conditional testamentary dispositions of Cladie, her motive appears to have been to

achieve equality and fairness regarding what her son and her daughter each received

in inherited family property.

While motive is not necessarily a factor in evaluating why a particular

condition is inserted into a testament, it can shed light on whether the condition is

“contrary to the laws or to morals” and, thus, reputed as if not written. See La. C.C.

art. 1519.

Achieving equality and fairness between siblings in what is inherited is not

contrary to the law or morals. Indeed, in the absence of a will, each child is treated

equally when inheriting from a parent. See La. C.C. art. 888.