Succession of Marian Ethel Plant Petry

SUCCESSION OF MARIAN ETHEL PLANT NO. 23-CA-474
PETRY
FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 823-478, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

April 24, 2024

MARC E. JOHNSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and John J. Molaison, Jr.

VACATED AND REMANDED
MEJ
SMC
JJM

COUNSEL FOR DEFENDANT/APPELLANT,
EDWARD D. SIREN, III, IN HIS CAPACITY AS INDEPENDENT EXECUTOR
OF THE ESTATE OF EDWARD D. SIREN, JR.
Alexandre E. Bonin
R. Christian Bonin
Jean-Marc Bonin
Paul A. Bonin

COUNSEL FOR DEFENDANT/APPELLEE,
CATHOLIC CHARITIES ARCHDIOCESE OF NEW ORLEANS
Richard A. Bordelon
Todd R. Gennardo
Ian P. Gunn

COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT,
GREATER NEW ORLEANS EDUCATIONAL TELEVISION FOUNDATION
("WYES"), UNITED STATES OLYMPIC & PARALYMPIC COMMITTEE,
CHILDREN'S HOSPITAL NEW ORLEANS, NATIONAL WILDLIFE
FEDERATION, LOUISIANA WILDLIFE FEDERATION, INC. AND BRIDGE
HOUSE CORPORATION
Peter J. Rotolo, III
A. Elyce Ieyoub

COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT,
BRIDGE HOUSE CORPORATION
Anne E. Raymond
Tyler J. Arbour

JOHNSON, J.

Appellants, Greater New Orleans Educational Television Foundation

(“WYES”), United States Olympic & Paralympic Committee, Children’s Hospital

New Orleans, National Wildlife Federation, Louisiana Wildlife Federation, Inc.,

and Bridge House Corporation (collectively “the Charitable Legacy Defendants”),

and the Intestate Heirs, represented herein by Edward D. Siren, III, in his capacity

as Independent Executor of the Succession of Edward D. Siren, Jr. (“Siren”), seek

review of the 24th Judicial District Court’s May 31, 2023 declaratory judgment in

favor of Appellee, Catholic Charities Archdiocese of New Orleans (“Catholic

Charities”), that found the late Marian Ethel Plant Petry’s testamentary bequest to

“Hope Haven in Marrero, Louisiana” has not lapsed and ordered that the bequest

be distributed to Catholic Charities. The Charitable Legacy Defendants and

Intestate Heirs also seek review of the court’s June 21, 2023 judgment denying the

Intestate Heirs’ motion for a new trial. For the following reasons, we vacate the

district court’s May 31, 2023 judgment and remand the matter for further

proceedings.

FACTS AND PROCEDURAL HISTORY

Marian Ethel Plant Petry died testate at the end of 2021. David T. Pointer,

whom she named as Independent Executor of her estate with full seizin and

without bond, successfully petitioned the court to probate her will and confirm his

appointment a few days after her death. Mrs. Petry married twice; she divorced

her first husband, and her second husband, John Henry Petry, Jr., preceded her in

death. The couple had a separate property regime, Mrs. Petry neither bore nor

adopted any children, and her parents also predeceased her. Her August 2012 will

made the following testamentary bequest:

I give and bequeath the property of which I die possessed equally to
the following charities:

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1) Childrens Hospital, New Orleans, Louisiana;
2) Hope Haven in Marrero, Louisiana;
3) Back Bay Mission, Biloxi, Mississippi;
4) Bridge House, New Orleans, Louisiana;
5) National Wildlife Federation;
6) Metropolitan Battered Women's Program, Inc.;
7) Jefferson Parish, SPCA;
8) Magnolia School, Jefferson Parish, Louisiana;
9) Louisiana Wildlife Federation;
10) Channel 12 WYES; and
11) United States Olympic Committee1

In the fall of 2022, Pointer filed a petition for declaratory judgment and

averred the following:

 All charities have been identified by their correct legal and
current name (if the name has changed) and tax exempt status and are
in good standing except for Hope Haven in Marrero, Louisiana, which
is now defunct;
 The land and buildings on which Hope Haven once operated are
owned by the Archdiocese of New Orleans (hereinafter the
“Archdiocese”);
 There are five non-profit businesses listed on the Louisiana
Secretary of State Business Listings related to Hope Haven including
Hope Haven-Madonna Manor, The Hope Haven League, Hope and
Healing Haven, Hope Haven Farms, Inc., and the Hope Haven
League. All of these businesses are listed as inactive; and
 The Archdiocese has ceased to operate any facilities for
residential treatment of unwed mothers and troubled youth, which was
the original purpose of Hope Haven.

Catholic Charities, and the Estate of Edward Daniel Siren, Jr., represented

by Mr. Siren, III, and all named legatees besides Hope Haven, were made

defendants to Mr. Pointers’ petition.

Children's Hospital New Orleans ("CHNO"), Greater New Orleans

Educational Television Foundation ("WYES"), Louisiana Wildlife Federation, Inc.

("LWF"), National Wildlife Federation ("NWF"), United States Olympic &

Paralympic Committee ("USOPC"), and Magnolia Community Services, Inc.

("MCS"), as a collective, as well as Catholic Charities and Bridge House, answered

1
Notably, the late Mr. Petry’s 2007 will left all of his property to the first eight charities included in Mrs.
Petry’s bequest, mentioned above, as contingent legatees, in case she preceded him in death.

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the petition and filed memoranda. Attached to the Catholic Charities memorandum

was the affidavit of Sister Marjorie Hebert, MSC, the current President and CEO of

Catholic Charities; a May 1985 extract of a meeting of the membership and board

of the Archdiocese of New Orleans transferring the management, operation,

control and maintenance of all institutions and/or programs of Hope

Haven/Madonna Manor to Associated Catholic Charities; a June 1985 meeting

minutes extract of the membership and board of Associated Catholic Charities

outlining adopted resolutions in connection with assuming responsibility for Hope

Haven/Madonna Manor; and a copy of a commercial search from the Secretary of

State’s website that showed that Catholic Charities was previously named

Associated Catholic Charities of New Orleans, Inc. and Sr. Hebert is the registered

agent and President of the organization.

Siren filed a Dilatory Exception of Unauthorized Use of Summary

Proceedings and Memorandum in Support of the Exception urging that the

proceeding, seeking declaratory relief in connection with the interpretation of a

testamentary disposition, should be conducted as an ordinary proceeding, and filed

an answer and a Response to the Petition for Declaratory Judgment. Pointer, in his

capacity as independent executor for the Succession of Marian Petry, filed an

Opposition to the Dilatory Exception.

The court heard the exception of unauthorized use of summary proceedings

in January 2024. The Intestate Heirs subpoenaed Sr. Hebert for that date, but she

was travelling abroad. The Intestate Heirs argued that they had no notice of

Catholic Charities’ basis to support a conclusion that the legacy to Hope Haven

had not lapsed, and whether the legacy had lapsed could be a factual determination

ripe for summary judgment at some point, but there was no need for rapid

adjudication of the issue at that time. Catholic Charities argued that it was always

intended to be the recipient of the legacy, because Hope Haven was one of its

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ministries, and in the alternative, under the unincorporated association statute [La.

R.S. 12:215, et seq.], it should receive the legacy. After determining that there was

no dispute amongst the parties regarding the facts of the case, the district court

ruled that summary proceedings were appropriate and denied the Siren’s exception

on behalf of the Intestate Heirs.

All parties stipulated that the facts stated in the Succession’s Petition for

Declaratory Judgment were true. However, the Legacy Defendants argued that the

will was clear and unambiguous, and extrinsic evidence should not be used to

determine the testator’s intent. They argued that the legacy to Hope Haven lapsed

because it ceased operations four years before Mrs. Petry executed her will, the

will contained a universal legacy because it disposed of the entirety of her estate,

and therefore, the legacy should accrete to the other legatees.

The Intestate Heirs agreed with the Legacy Defendants about the lapsed

legacy, but countered that the use of the word “equally” in the bequest created

fractions, which would make Mrs. Petry’s bequest a general legacy to separate

legatees. Thus, the Intestate Heirs would receive the legacy instead of Hope Haven

based on the laws of accretion. Catholic Charities responded that other legatees

were not referred to by their proper legal names, and the court was charged with

giving effect to the testator’s intent. Catholic Charities also noted that Mrs. Petry

incorporated her husband’s list of legatees, and Hope Haven was still operating as

a home for foster and troubled youth at that time.

After noting that there would be no issue if Hope Haven was still operating

an orphanage in Marrero, the judge advised the parties that he was inclined to find

that the bequest was a universal legacy for the benefit of several different charities,

and that if there were a lapse in legacy, then it would not fall into intestacy. The

court was unwilling to rule on whether the Hope Haven legacy had lapsed without

evidence regarding what “orphanage-type services” Catholic Charities currently

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provided. The judge left the hearing open for Catholic Charities to provide

additional evidence and allowed all parties to continue to participate in the

litigation pending further orders and judgments.

Sr. Hebert, the President and CEO of Catholic Charities since 2013, and

Gordon Wadge, her immediate predecessor, testified at separate hearings a week

apart at the end of March 2023. She testified that the current programs Catholic

Charities operates service and support vulnerable children, youth and their

families, and/or populations affected by out-of-home placements.

Sr. Hebert further testified that the Archdiocese still owned the land, and the

only Catholic Charities program that currently used the facilities was an adult

daycare program that used a building on the Madonna Manor side, operated by

PACE, a separate corporation owned by Catholic Charities. Sr. Hebert entered the

Order in 1960 and, with the exception of a ten-year period, has worked exclusively

in the Greater New Orleans Metro Area. She never visited Hope Haven institution

while it operated as an orphanage and did not know Mrs. Petry.

Gordon Wadge worked at Catholic Charities from 1979 – 2013, and served

as President and CEO for 10 years before leaving the organization. He testified that

he had a lot of interaction with Hope Haven during the first 10 years of his career

caring for abused, neglected and delinquent children in the State’s custody. Mr.

Wadge explained Catholic Charities closed Hope Haven Center because the

preferred model for servicing the population moved away from institutionalized

placements and group homes. To his recollection, the children who left Hope

Haven were not placed in other facilities ran by Catholic Charities.

Mr. Wadge further testified, “Hope Haven was certainly a ministry of

Catholic Charities, Hope Haven Center and Hope Haven campus services, yeah,”

and “Hope Haven” referred both to the orphanage “Hope Haven Center,” as well

as the facility “Hope Haven Campus”. He stated that the campus is divided into

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two sides – Hope Haven and Madonna Manor – by Barrataria Boulevard. Through

his work on a local board, Mr. Wadge had knowledge of the 99-year lease the

Archdiocese entered into with Jefferson Parish to use for the public’s benefit on the

west, or Hope Haven side. He explained that no services are being provided on the

leased side of the campus. He testified that Hope Haven still exists today as there is

activity on the campus, such as the operation of an adult day care center and

building renovations.

After Mr. Wadge’s testimony, the court confirmed that only Catholic

Charities presented evidence at the hearing “regarding[ . . .] what still exists that

Catholic Charities does that is similar to what they did at Hope Haven Center.”

Both the Legacy Defendants and Intestate Heirs objected to the court receiving any

evidence. The court overruled their objections, gave the parties two weeks to

submit any post-trial memoranda and recommended that they attempt to reach a

resolution by way of consent.

On May 31, 2023, the district court entered judgment in favor of Catholic

Charities and against the Legacy Defendants, Jefferson SPCA, Bridge House

Corporation and Intestate Heirs. The court found that Mrs. Petry’s testamentary

bequest to “Hope Haven in Marrero, LA” had not lapsed and ordered disbursement

to Catholic Charities. The district court found that the testimony of Sr. Hebert and

Mr. Wadge was sufficient to establish that “Hope Haven Campus” was in existence

at all relevant times. Therefore, the court concluded that the legacy to “Hope

Haven in Marrero, La” did not lapse and ordered the funds to be distributed to

Catholic Charities as the entity responsible for the management, care, and

maintenance of the Campus.

The court’s written reasons for judgment explained that 1) Mrs. Petry clearly

intended for her entire estate to benefits the charities and non-profit organizations

and rejected the Intestate Heirs’ argument; 2) although most of the parties

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interpreted the legacy as a legacy to “Hope Haven Center”, the testimony of Mr.

Wadge repeatedly distinguished the Center from “Hope Haven Campus”, and

interpreting the legacy as referring to Hope Haven Campus will effectuate the

legacy; 3) if the court’s accepted the Legacy Defendants’ and Intestate Heirs’

interpretation of the legacy as being strictly for the benefit of the children who

received services at the Center, then the court would have to assume that Mrs.

Petry knowingly drafted an impossibility into her will and find that the legacy has

lapsed; 4) Hope Haven Campus existed in 2012 and is still operating today;

Catholic Charities is still providing charitable services on the campus; and 5) the

failure to leave the bequest to Catholic Charities for the benefit of “Hope Haven in

Marrero, Louisiana” is no different from some of the other legacies whose

financial administrators’ names/identities were not shared with the charity itself

(i.e. “Channel 12 WYES” and Magnolia School, Jefferson Parish, Louisiana).

The Intestate Heirs/Siren III filed a motion for new trial and argued that the

trial court relied on inadmissible evidence in making its decision and the judgment

was contrary to law and evidence. The other parties objected to the fact that

Catholic Charities attached exhibits to its post-trial memorandum rather than

presenting the evidence at trial. Catholic Charities filed a letter to voluntarily

withdraw the exhibits attached to its post-trial memorandum. The trial court

denied the motion for new trial. The reasons for judgment explained that although

the withdrawn exhibits “succinctly demonstrate the relationship between Catholic

Charities and Hope Haven, those exhibits were not the foundation of the court’s

judgment.” The court drew its conclusions regarding the Center, Campus, and

Catholic Charities from Mr. Wadge and Sr. Hebert’s testimony, and stated that a

new trial “would only result in the submission of identical evidence.” This timely

appeal followed.

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ASSIGNMENTS OF ERROR

Appellants assign the following as error.

1. The district court erred in relying on extrinsic evidence to
determine Ms. Petry’s intent in drafting her bequest to Hope Haven
where the plain language of her Will is clear and unambiguous.

2. The district court erred in concluding that Ms. Petry’s testamentary
bequest to “Hope Haven in Marrero, Louisiana” has not lapsed, where
Hope Haven had ceased to exist before Ms. Petry died.

3. The district court erred in ordering that Ms. Petry’s testamentary
bequest to “Hope Haven in Marrero, Louisiana” be distributed to
Catholic Charities, where the legacy has lapsed according to the law,
where there is no evidence that Catholic Charities is entitled to the
bequest, and where the lapsed legacy devolves to all ten of the
remaining charities listed in Ms. Petry’s will.

4. The district court erred in denying the Estate of Edward D. Siren,
III’s Motion for New Trial, by relying on non-record evidence.

LAW AND ANALYSIS

A legal error occurs when a trial court applies incorrect principles of law and

such errors are prejudicial. Snider v. Louisiana Med. Mut. Ins. Co., 13-579 (La.

12/10/13), 130 So.3d 922, 929, citing Evans v. Lungrin, 97-541 (La. 2/6/98), 708

So.2d 731, 735. Legal errors are prejudicial when they materially affect the

outcome and deprive a party of substantial rights. Id. When a prejudicial error of

law skews the trial court's finding of a material issue of fact and causes it to

pretermit other issues, the appellate court is required, if it can, to render judgment

on the record by applying the correct law and determining the essential material

facts de novo. Id. We find that the district court committed legal error when it

chose to hear the matter as a summary proceeding.

There are three different modes of procedure used in civil matters in
Louisiana trial courts: ordinary, summary, and executory. La. C.C.P. art. 851.
Ordinary proceedings are used “in the district courts in all cases, except as
otherwise provided by law.” Id. “Summary proceedings are those which are
conducted with rapidity, within the delays allowed by the court, and without
citation and the observance of all the formalities required in ordinary proceedings.”

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La.C.C.P. art. 2591.

Succession of Gendron, 17-216 (La. App. 5 Cir. 12/27/17), 236 So.3d 802, 809.

The executor of Mrs. Petry’s estate requested a declaratory judgment that

determined whether the legacy to “Hope Haven in Marrero, LA” had lapsed. “A

claim for declaratory relief is not a summary proceeding; it requires a trial on the

merits where each party has an opportunity to present evidence in a form other

than verified pleadings and affidavits.” MAPP Const., LLC v. Amerisure Mut. Ins.

Co., 13-1074 (La. App. 1 Cir. 3/24/14), 143 So.3d 520, 530-31. The district court

heard the matter as a summary proceeding over the objection of the Intestate Heirs’

counsel. The district court recognized that the law requires that a testamentary

disposition be understood in the sense in which it can have effect, rather than one

in which it has none. La. C.C. art. 1612; see also Succession of Russell, 590 So.2d

606, 612 (La. App. 3d Cir. 1991), writ denied, 591 So.2d 700 (La. 1992), citing

Succession of Lambert, 210 La. 636, 28 So.2d 1, 8 (1946). However,

[w]here there is ambiguity in the description of the legatee, or the
thing which the testatrix intended to bequeath, or the quantum or
portion of the legatee, or where there is doubt as to the sense in which
the words are used by the testatrix, resort may be had to extrinsic
evidence. In fact, all circumstances throwing any light on the
testatrix's intention must be considered.

Succession of Cardone, 271 So.2d 338, 340 (La. App. 2d Cir. 1972), writ denied,

273 So.2d 300 (La. 1973), citing Succession of Smart, 214 La. 63, 36 So.2d 639;

La. C.C. arts. 1611 and 1715. Upon de novo review of the record, we find that the

district court erred in rendering judgment after a summary proceeding rather than

in an ordinary proceeding in which all parties are permitted to introduce evidence.

We therefore remand the matter so all parties have an opportunity to present

evidence to support their understanding of Mrs. Petry’s intent in making her

bequest. Accordingly, we pretermit discussion of Appellants’ assignments of

error.

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DECREE

Considering the foregoing, the May 31, 2023 judgment of the district court

finding that Mrs. Petry’s testamentary bequest to “Hope Haven in Marrero, La.”

had not lapsed and ordering disbursement of the legacy to Catholic Charities is

vacated. The matter is remanded for further ordinary proceedings consistent with

this opinion.

VACATED AND REMANDED

23-CA-474 10

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
APRIL 24, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-474
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
ALEXANDRE E. BONIN (APPELLANT) JEAN-MARC BONIN (APPELLANT) R. CHRISTIAN BONIN (APPELLANT)
IAN P. GUNN (APPELLEE) PETER J. ROTOLO, III (APPELLANT) TYLER J. ARBOUR (APPELLANT)

MAILED
A. ELYCE IEYOUB (APPELLANT) DYLAN K. KNOLL (APPELLEE) ROBERT E. TARCZA (APPELLEE)
ATTORNEY AT LAW RICHARD A. BORDELON (APPELLEE) ATTORNEY AT LAW
1100 POYDRAS STREET TODD R. GENNARDO (APPELLEE) 330 CARONDELET STREET
SUITE 2300 ATTORNEYS AT LAW SUITE 300
NEW ORLEANS, LA 70163 201 ST. CHARLES AVENUE NEW ORLEANS, LA 70130
SUITE 3920
PAUL A. BONIN (APPELLANT) NEW ORLEANS, LA 70170
ATTORNEY AT LAW
4224 CANAL STREET ANNE E. RAYMOND (APPELLANT)
NEW ORLEANS, LA 70119 ATTORNEY AT LAW
601 POYDRAS STREET
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