Succession of Clifton J. Derouen v. Eugene Derouen and Linda Cannon

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

03-623

SUCCESSION OF CLIFTON J. DEROUEN

VERSUS

EUGENE DEROUEN AND LINDA CANNON

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 39,013
HONORABLE DAVID PAINTER, DISTRICT COURT JUDGE

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GLENN B. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Glenn B. Gremillion, and
Elizabeth A. Pickett, Judges.

Thibodeaux, C.J., dissents and assigns written reasons.

AFFIRMED AND REMANDED.

Thomas M. Bergstedt
Felton Paul Leger
Brian W. Arabie
Bergstedt & Mount
1011 Lake Shore Dr., Ste 200
Lake Charles, LA 70601
Telephone: (337) 433-3004
COUNSEL FOR:
Appellee - Deborah H. Derouen

Andre' Joseph Buisson
Woodley, Williams, etc.
P. O. Box 3731
Lake Charles, LA 70602
Telephone: (337) 433-6328
COUNSEL FOR:
Appellee - Donald K. Derouen

Timothy O'Dowd
921 Ryan St.
Lake Charles, LA 70601
Telephone: (337) 310-2304
COUNSEL FOR:
Appellant - Eugene Derouen and Linda Cannon

GREMILLION, Judge.

In this succession case, the trial court found that a clause in the testator’s

will, which provided that his son was to receive a particular legacy of “an extra

portion . . . [of] an interest in [his] property equal to 15 acres of his choice,” was valid

and refused to nullify the will. For the following reasons, we affirm and remand for

further consideration.

FACTS

Clifton J. Derouen executed his last will and testament on August 6,

1999; he died on June 22, 2000. He had four children: Donald K. Derouen, Jarrett

B. Derouen, Eugene C. Derouen, and Linda Derouen Cannon. In Section IV of his

will, Clifton left a particular legacy to Jarrett that provided as follows:

As an extra portion, not subject to collation, I give and bequeath to my
son, Jarrett B. Derouen, an interest in my property equal to 15 acres of
his choice.

Both Jarrett and Donald were appointed co-executors of their father’s estate (Clifton

Estate). Jarrett and Donald acted together in administering the estate until Jarrett’s

death on October 17, 2000. After Jarrett’s death, Donald was confirmed as the sole

executor of the Clifton Estate. Jarrett died before he exercised his choice as provided

in Section IV of Clifton’s last will and testament.

Deborah Derouen, the widow and executrix of Jarrett’s estate, notified

Donald that she, as Jarrett’s successor, selected the fifteen acres of land as provided

in Section IV of Clifton’s last will and testament as Jarrett’s choice. Thereafter, Linda

and Eugene filed a petition to nullify Clifton’s last will and testament. Deborah

claims that Section IV of the last will and testament is still valid and that she should

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be allowed to make the choice that belonged to Jarrett prior to his death. Donald, as

the sole executor of the Clifton Estate, sought a declaratory judgment on the issue of

whether Section IV is nullified because the legatee is deceased. After a trial on the

merits, the trial court found that the provision bequeathing fifteen acres of land to

Jarrett was valid as written, which allowed Jarrett’s heirs the right to choose that

which was originally given to Jarrett in Section IV of Clifton’s last will and testament.

From this judgment, Linda and Eugene appeal.

ISSUES

An issue in this case is whether a section of a last will and testament that

gives an heir and co-executor of the estate an extra portion and power to choose an

interest in the estate equal to fifteen acres of property is null where that heir died prior

to making such choice. The second issue is whether the authority to make the

selection of property shifts to the surviving executor of the estate, if the section in

question is not nullified.

LAW AND DISCUSSION

In interpreting a will, the courts in Louisiana are guided by La.Civ.Code

arts. 1611 through 1616. These articles provide that the court must ascertain the intent

of the testator and that the testator’s intent must be given effect. La.Civ.Code arts.

1611, 1612. “The above cited code articles direct us to interpret a testament in a way

that furthers, rather than frustrates, the testator’s lawful intent.” Morgan v. Leach, 96-

173, p. 5 (La.App. 1 Cir. 9/27/96), 680 So.2d 1381, 1384. “The cardinal principle of

the interpretation of acts of last will is to ascertain and honor the intent of the testator

ascribing meaning to a disposition so that it can have effect.” Lingo v. Courmier, 95-

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542, p. 3 (La.App. 3 Cir. 11/2/95), 667 So.2d 1091, 1093, writ denied, 96-795 (La.

5/10/96), 672 So.2d 925.

In interpreting these articles, the courts endeavor to ascertain the
testator’s intention, and all other rules of construction are only means to
that end. The Supreme Court has indicated that the function of the courts
is to carry out the intention of the testator and effect should be given to
all language contained in the will if possible.

Succession of Bel, 377 So.2d 1380, 1383 (La.App. 4 Cir. 1979). When the words of

the testament are plain and unambiguous, the testator’s intent should be ascertained

from the language used in the testament, giving the words used their usual

significance. Succession of Vatter, 192 La. 657, 188 So. 732 (1939). The language

used in the testament “must be understood according to its common, popular

acceptation.” Id. at 668, 736. If the language of the testament is clear, its letter is not

to be disregarded under the pretext of pursuing its spirit. La.Civ.Code art. 1611. The

language, as well as Clifton’s intent, is plain and unambiguous. Clifton sought to give

Jarrett an extra share of his property, of Jarrett’s choosing.

The provision in Clifton’s will at issue is in Section IV that gives Jarrett

an interest in property equal to fifteen acres of his choice. Appellants first argue that

Section IV violated La.Civ.Code art. 1572 because the testamentary disposition in

Section IV was committed to Jarrett’s choice, a third person to the will. Louisiana

Civil Code Article 1572 provides in pertinent part:

Testamentary dispositions committed to the choice of a third
person are null, except as expressly provided by law. A testator may
delegate to his executor the authority to allocate specific assets to satisfy
a legacy expressed in terms of a value or a quantum, including a
fractional share.

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Additionally, appellants argue that, even if Jarrett is not a “third person” to the will,

Article 1572 was still violated because Section IV left it to only one of two of the

executors of the estate to make a distribution of property.

Initially, we shall determine if Jarrett is a third party to the will as it

relates to this particular bequest. We note that Jarrett is both a legatee and a

succession representative under the will. In that regard, Deborah contends that,

because Section IV of the will is a particular legacy, Article 1572 and La.Code Civ.P.

art. 3192 (which provides for the duties and powers of multiple succession

representatives) are inapplicable to Clifton’s bequest to Jarrett. To support her

position that Jarrett, as a legatee, is not a third party to the will, she cites four cases.

First, in Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3 Cir. 1976), writ

denied, 342 So.2d 217 (La.1977), the issue involved whether the failure of the

deceased to properly record a notarial adoption nullified the adoption, thereby

allowing only the children of the deceased from a previous marriage, who were not

adopted, to inherit as forced heirs from the deceased’s estate. The court, in a footnote,

concluded that, under these particular facts, with respect to the public records doctrine,

legal heirs are not generally regarded as third persons in the law. Id. at 904, n.1.

While the facts and issue in Fontenot are dissimilar to those in the case sub judice, the

case does demonstrate that, if heirs were third parties, they could have relied on the

public records doctrine and defeated the adopted daughter’s claim to be a forced heir.

Likewise, in Haggard v. Rushing, 76 So.2d 52 (La.App. 2 Cir. 1954), the

issue was a matter of whether the heirs were third persons with respect to the public

records doctrine. In Haggard, the deceased, prior to his death, executed a document

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in favor of Rushing authorizing him to use the surface of a piece of property for a

fence. The deceased did not record this document. Upon Haggard, Sr.’s death, his

children were placed in possession of his land and recognized as the owners. After

a discussion on the interpretation of contracts, the court concluded that Haggard, Sr.

gave Rushing a usufruct over the property. The children then claimed that, because

that usufruct was not recorded, they were not bound to honor the contract as third

parties. The court held that, as heirs of Haggard, Sr., they were bound by contracts

made by him and, in that sense, they were not third parties. Again, while the facts of

this case are not “on all fours” with Deborah’s position that Jarrett was not a third

party to his father’s last will and testament, it demonstrates that heirs are not

considered third parties in these instances. The last two cases cited by Deborah,

Porterfield v. Parker, 189 La. 720, 180 So. 498 (1938), and Green v. McDade, 17

So.2d 637 (La.App. 2 Cir. 1944), also pertain to the definition of a “third person” with

respect to heirs and the public records doctrine and will not be discussed in detail in

this opinion. However, the cases provide some guidance for our analysis and mitigate

to the finding that legatees are not third parties to wills.

We have found no jurisprudence that directly addresses the issue that we

are faced with in the instant case, that is, whether under Article 1572, an heir and/or

particular legatee is a “third person” to whom a testamentary disposition is committed

making that portion of the testament null and void.

In Tel-American, L.L.C. v. Columbia Telecommunications, Inc., 00-1989,

p. 3 (La.App. 4 Cir. 5/16/01), 789 So.2d 627, 629, our colleagues of the fourth circuit

discussed the following with respect to defining “third party:”

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“Third party” is a term of art. Black’s [L]aw Dictionary, Sixth
Edition, defines “Third party”:

One not a party to an agreement, a transaction, or an action
but who may have rights therein

This is consistent, for example with Chapter 7 of Title IV of the
Louisiana Civil Code (Art. 1978, et seq.) entitled, “Third Party
Beneficiary.”

[La.Civ.Code] art. 3506(32) [in Title XXV. Of the Signification
of Sundry terms of Law Employed in This Code] defines “Third
Persons” as:

With respect to a contract or judgment, third persons are all
who are not parties to it. . . .

The court goes on to note that the “definition of ‘third party’ or ‘third person’ as one

not a party to an agreement is so time honored and universal that the courts of this

state do not even feel it necessary to define the term when employing it.” Id.

At the outset, one would not consider the legatee a third party to a

donation mortis causa in the same sense that one would not consider a vendee or

donee a third party to their respective agreements or transactions. The legatee is “a

party to an agreement, a transaction, or an action,” who has “rights therein.” Id.

Further, there is no definition of a third person in Article 1572. However,

Comment (a) to the article sheds light on the meaning of the phrase “choice of a third

person.” It reads:

The source of this Article is Article 1573 of the Civil Code of 1870,
which originally provided that "the custom of willing by testament, by
the intervention of a commissary or attorney in fact, is abolished." In
1982 the article was amended to grant a testator limited power to
delegate authority to an executor to select assets to distribute in
satisfaction of certain legacies. The 1982 amendment to Article 1573
has been preserved and significantly expanded to permit the delegation
of authority to an executor to select assets to distribute in all instances
where the legacy of the share of the estate is designated by quantum or

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value. The revision clarifies that "quantum" includes fractional shares,
such as one-fourth or one-half of something, and intentionally removes
the language in Article 1573 (1870) that limits the ability to delegate
such authority to the instances where the designation of the quantum or
value is made "either by formula or by a specific sum". This article
permits delegation of authority in all instances where the legacy is a
quantum or value, whether or not the bequest is by formula or by specific
sum.

It is clear from the comment and the history of this article that former Article 1573 did

away with the testator’s ability to appoint a third party, such as a commissary or

attorney-in-fact, to decide the provisions of the will. Such is not the case at hand.

Jarrett was a legatee and a party to the will and not a commissary or attorney-in-fact.

Moreover, granting a legatee the choice of certain assets is not in

contravention of any of the rules for donations mortis causa. In Succession of Meeks,

609 So.2d 1035 (La.App. 2 Cir. 1992), writ denied, 612 So.2d 86 (La.1993), the

testator left to her nephew “twenty-five thousand together with the contents of my

home and any other personal belongings of his choice which I shall own at the time

of my death.” She left the remainder of her property to a church. The issue was

whether the terms “and any other personal belongings” constitutes a bequest of the

decedent’s entire estate to the nephew. The court held that the term “personal

belongings” did not include financial assets and business property, but things that the

testatrix had some intimate relation to such as household items, jewelry, her vehicle,

etc. Thus, the court found that the church was the universal legatee of the remainder

of the estate. Although not stated, it is implied that, as the universal legatee, the

church would receive all of the non-personal belongings and the personal items that

remained after the nephew made his choice of items that he wanted.

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Accordingly, we find that Jarrett was not a third party to the will and that

Article 1572 is not applicable to the instant case. We affirm the trial court’s finding

that the will was valid.

EFFECT OF JARRETT’S DEATH

Since the will is valid, Jarrett inherited his choice of fifteen acres from

his father. The question now presented is whether Deborah, as Jarrett’s executrix, can

make that choice. For this issue, the comments to La.Civ.Code art. 1586 provide

some guidance. Comment (e) states, “An executor may be given the power to select

assets to satisfy a general legacy without changing the nature of the legacy. See Civil

Code Articles 1302 and 1725 (1870) and Article 1571 of this revision.” La.Civ.Code

art. 1302 (1870) reads in part (emphasis added):

There is no occasion for partition, if the deceased has regulated it
between his lawful heirs, or strangers, or if the deceased has expressly
delegated the authority to his executor to allocate specific assets to
satisfy a legacy expressed in terms of a quantum or value; and in such
case the judge must follow the will of the testator or his executor.

Further, Article 1725 provides: “If a testator has designated the quantum or value of

his estate which he bequeaths to a legatee either by formula or by specific sum, he

may expressly delegate to his executor the authority to select assets to satisfy the

quantum or value.” (Emphasis added). Finally, Article 1572 allows a testator to

“delegate to his executor the authority to allocate specific assets to satisfy a legacy

expressed in terms of . . . a quantum, including a fractional share.” Clearly, the law

provides that an executrix may “allocate” and “select” assets to satisfy a legacy

expressed in a quantum; i.e., fifteen acres of his choice.

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However, the record does not contain a copy of Jarrett’s testament nor

was any testimony adduced at trial as to its contents. Accordingly, we must remand

this case to the trial court to determine if Jarrett expressly delegated the authority to

choose the certain acres to fulfill his legacy to the executor of his estate, Deborah.

She may have been given the authority to choose the acres while another person(s)

was named the legatee. If the testament does not expressly delegate the power to

choose the acres to the executrix, but Deborah is the heir, she may choose the

particular acres as an heir, a position which would not conflict with her role as

executrix. If Jarrett did not expressly delegate the authority to choose, then the

property devolves in the manner he expressly provided for and his heirs inherit the

right to choose the fifteen acres.

CONCLUSION

For the above reasons, the judgment of the trial court regarding the

nullity of Section IV of Clifton Derouen’s last will and testament is affirmed in all

respects. This case is remanded to the trial court for further consideration. The costs

of this appeal are taxed against the defendants-appellants, Eugene Derouen and Linda

Derouen Cannon, in solido.

AFFIRMED AND REMANDED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-623

SUCCESSION OF CLIFTON J. DEROUEN

VERSUS

EUGENE DEROUEN AND LINDA CANNON

THIBODEAUX, J., dissenting.

We all agree on the law which is to be applied; my disagreement focuses

on the interpretation of the various codal provisions. Indeed, La.Civ.Code arts. 1611-

1616 focus on the intent of the testator. As the majority points out, we must focus on

the lawful intent of a testator. Clifton sought to give his son, Jarrett, an extra portion

of his property. Nothing, of course is wrong with this. But, it must be done correctly.

The problems are that Jarrett is a third person to the will, the provision attempting to

give him an extra portion is ambiguous, and the will did not specifically delegate to

Jarrett the authority to allocate as executor of Clifton’s estate.

The jurisprudence relied upon by the majority does not support its

position. For instance, in Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3 Cir. 1976),

writ denied, 342 So.2d 217 (La.1977), the court, in a footnote, concluded that under

the particular facts of that case, legal heirs are not generally regarded as third persons

in the law with respect to the public records doctrine. Fontenot at 904, n.1. Because

the facts and the issue in Fontenot are so dissimilar to the facts and issue in this case,

the court’s holding in Fontenot is not dispositive of the issue in here. Likewise, in

Haggard v. Rushing, 76 So.2d 52 (La.App. 2 Cir. 1954), the public records doctrine

was implicated. Again, the facts do not support Deborah’s position that Jarrett is not

a third party to his father’s last will and testament. The last two cases, Porterfield v.

Parker, 180 So. 498 (La.1938) and Green v. McDade, 17 So.2d 637 (La.App. 2 Cir.

1944) also pertain to the definition of a “third person” with respect to heirs and the

public records doctrine. The public records doctrine is not an issue in this case. The

majority’s reliance on these cases is misplaced.

Neither side contests the indisputable fact that Jarrett was not a party

signatory to Clifton’s last will and testament. Only the testator, Clifton, signed the

will. To the extent that jurisprudence is persuasive authority under Louisiana’s civil

law system, my interpretation of and reliance upon Tel-American, L.L.C. v. Columbia

Telecommunications, 00-1989, (La.App. 4 Cir. 5/16/01), 789 So.2d 627, is different

than that of the majority’s. In Tel-American, the fourth circuit explained:

“Third party” is a term of art. Black’s [L]aw
Dictionary, Sixth Edition, defines “Third party”:

One not a party to an agreement, a transaction,
or an action but who may have rights therein

This is consistent, for example with Chapter 7 of
Title IV of the Louisiana Civil Code (Art. 1978), et seq.)
entitled, “Third Party Beneficiary.”

[La.Civ.Code] art. 3506(32) [in Title XXV. Of the
Signification of Sundry terms of Law Employed in This
Code] defines “Third Persons” as:

With respect to a contract or judgment, third
persons are all who are not parties to it. . . .

Id. at 629.

The court goes on to note that the “definition of ‘third party’ or ‘third person’ as one

not a party to an agreement is so time honored and universal that the courts of this

state do not even feel it necessary to define the term when employing it.” Id.

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Deborah argues that even if Jarrett is considered a third person to

Clifton’s last will and testament, that Jarrett, as executor, had “authority to allocate

specific assets to satisfy a legacy . . .” under La.Civ.Code art. 1572. However,

Clifton’s will did not specifically delegate to Jarrett the allocation authority as

executor of his estate. Clifton’s will merely named Jarrett as co-executor with his

brother, Donald. Moreover, even if Jarrett could have made the allocation to himself

as co-executor of his father’s estate, he failed to do so prior to his death. Thus, this

argument is without merit. Section IV of Clifton’s last will and testament violated the

provisions of La.Civ.Code art. 1572 and is, therefore, null.

Furthermore, even if Jarrett, as a legatee to the last will and testament of

his father is not a “third person” as provided in La.Civ.Code art. 1572, Section IV of

the testament is still invalid. The only unambiguous part of the bequest is that Jarrett

was to receive an extra portion. Clifton wished to bequeath to Jarrett “an interest.”

It is unclear what type of interest he intended to give to Jarrett. Further, the bequest

states that the “interest” is in “[Clifton’s] property.” The bequest fails to state what

type of property, whether movable or immovable. Last, the “interest” in “property”

given to Jarrett is the equivalent of “15 acres.” It is unclear whether the value of

whatever “interest” in whatever “property” is to equal the value of “15 acres” or

whether Jarrett is to choose fifteen acres of land. It is plausible that Clifton intended

that Jarrett receive cash or other property equal to the value of fifteen acres of land

which he would choose rather than the actual land.

For the foregoing reasons, I dissent.

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