Succession of Alice Foster Cottrell

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-841

SUCCESSION OF ALICE FOSTER COTTRELL

VERSUS

IRMA LAVERGNE QUIRK

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 03-P-2816-A
HONORABLE ROBERT BRINKMAN, DISTRICT JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Glenn B. Gremillion, and Elizabeth A. Pickett,
Judges.

Cooks, J., Dissents in part.
I believe “The balance of my personal belongings I die possessed of every nature
and kind,” is broad enough to include not only “furniture, automobiles, clothes,
jewelry, etc.” but cash, bank accounts, and other forms of instruments.

AFFIRMED.

A. Gerard Caswell
P. O. Box 1600
Eunice, LA 70535
(337) 457-7378
Counsel for Appellees:
Ruby J. Fisher McGlothin
Estate of Bessie Fisher Summers
Ray Fisher
Clie Mae Beacham Price
Floyd Leon Simpson
Aline Marie Simpson Minniear
Patricia Simpson Santos
Estate of Claude Vincent Foster
Dorothy Foster Kneipp
Rose Ella Simpson Cesarini
Estate of Lillian Ewing
Annetta Foster Sanders
Vera June Foster Cornay
William Gerald Simpson
Helen Maxine Simpson Die
Lester Wayne Simpson
Sandra Jean Simpson Bates
Ela Ann Simpson Kite
William Louis Simpson
Gerald Wayne Simpson
Dorothy Lee Simpson Phillips
Patricia June Simpson Miller
Myrtle Ivy Simpson McCullough
Vernon Hardin Simpson
Mary Carolyn Simpson Stagg

Bruce A. Gaudin
100 W. Bellevue St.
Opelousas, LA 70570
(337) 948-3818
Counsel for Appellant:
Irma Lavergne Quirk

M. Terrance Hoychick
Young, Hoyhick & Aguillard
P. O. Drawer 391
Eunice, LA 70535-0391
(337) 457-9331
Counsel for Appellees:
Doris Reese Stagg
Dixie Lea Broussard Saucier

Jacque B. Pucheu, Jr.
Pucheu, Pucheu & Robinson
P.O. Box 1109
Eunice, LA 70535
(337) 457-9075
Counsel for Appellee:
Austin Cottrell
Sarah Cottrell
John A. Cottrell, Jr.

GREMILLION, Judge.

The defendant, Irma Lavergne Quirk, appeals the judgment of the trial

court finding that she was not a universal or general legatee in the succession of Alice

Foster Cottrell. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Cottrell died in June 2003. She and her late husband had no children.

Her closest living relative, her sister, Belle Foster, died in September 1999, and she

also had no children.

Cottrell executed a three page olographic will dated June 17, 1994. She

also executed an olographic codicil dated April 20, 1996.1 In her last will and

testament, Cottrell named twenty-two legatees to receive all of her assets. The codicil

made an additional particular legacy. The last legacy contained in the testament was

to Quirk, in which Cottrell left her “residence . . . and the balance of my personal

belongings I die possessed of every nature and kind.”

Two of the legatees, George Joubert and Foster, predeceased Cottrell

causing these legacies to lapse. The legacy to Joubert bequeathed 164 acres in

Acadia Parish. The legacy to Foster bequeathed one-half of sixty acres located in

Morrow, Louisiana, and “all jewelry I die possessed of and any remaining cash after

all debts are paid.” The co-administratrixes and counsel for the estate decided that

since there were no universal legatees under the will, the lapsed legacies would go to

the nearest living relatives of Cottrell, who were twenty-five cousins.

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The codicil, which was handwritten on an envelope, stated, “As a codicil to my last will
and testament I give and bequeath my Merrill Lynch account to John Austin Cottrell, my
nephew.”

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In November 2004, the co-administratrixes filed a petition for authority

to sell immovable property, namely the immovable property bequeathed to Joubert

and Foster. Quirk filed a rule to interpret testament in January 2005, urging that she

should be named the universal legatee under the will and that the heirs should not

receive the proceeds from the sale of the immovable property. Following a hearing

in March 2005, the trial court ruled that Quirk should only receive personal items

such as “furniture, automobiles, clothes, jewelry, etc.,” but not bank accounts or other

forms of investments. The remainder of the assets including financial investments

and immovable property that had been willed to Joubert and Foster were to devolve

by intestacy.

The judgment homologating tableau of distribution and of possession

was signed by the court in April 2005. It identified Quirk as the legatee of Cottrell’s

home, jewelry (including the jewelry which accreted to her after the lapse of Foster’s

legacy), and all personal belongings, including “clothing, furnishings, appliances,

memorabilia, and photographs.” Quirk now appeals and assigns as error the trial

court’s finding that she was not a universal or general legatee and in finding that the

balance of Cottrell’s estate, which was not bequeathed to the special legatees,

including the lapsed legacies, should devolve by intestacy.

LAW

The trial court’s factual findings as to the issue of whether Quirk is a

universal or general legatee under Cottrell’s testament are afforded great weight and

will not be disturbed in the absence of manifest error. See Succession of Young, 96-

1206 (La.App. 3 Cir. 3/5/97), 692 So.2d 1149.

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

1611 through 1616. These articles provide that the trial 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 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, 95-542, p. 3 (La.App. 3 Cir. 11/2/95),

667 So.2d 1091, 1093, writ denied, 96-0795 (La. 5/10/96), 672 So.2d 925. 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.2d 732 (1939). The language

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

acceptation.” Id. at 668, 736.

The Joubert and Foster legacies lapsed because they predeceased

Cottrell. La.Civ.Code art. 1589. “Testamentary accretion takes places when a legacy

lapses.” La.Civ.Code art. 1590. Louisiana Civil Code article 1595 states:

All legacies that lapse, and are not disposed of under the
preceding Articles, accrete ratably to the universal legatees.

When a general legacy is phrased as a residue or balance of the
estate without specifying that the residue or balance is the remaining
fraction or a certain portion of the estate after the other general legacies,
even though that is its effect, it shall be treated as a universal legacy for
purposes of accretion under this article.

“A universal legacy is a disposition of all of the estate, or the balance of the estate

that remains after particular legacies.” La.Civ.Code art. 1585. “A general legacy is

a disposition by which the testator bequeaths a fraction or a certain proportion of the

estate, or a fraction or a certain proportion of the balance of the estate that remains

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after particular legacies.” La.Civ.Code art. 1586. “Any portion of the estate not

disposed of under the foregoing rules devolves by intestacy.” La.Civ.Code art. 1596.

At issue in this case is whether Quirk is a universal or general legatee

because of Cottrell’s use of the words “the balance of my personal belongings I die

possessed of every nature and kind.” Quirk argues that personal belongings include

cash and property or, in the alternative, that if this phrase applies only to movables

that the bequest is a general legacy of a portion (i.e. movables), and pursuant to article

1595, she should be treated as a universal legatee. Having reviewed the record, we

find no manifest error in the trial court’s ruling. The trial court stated in its reasons

for judgment:

The decedent took special care in spelling out how particular
legacies were to be paid to her nieces, nephews, and cousins. She also
took particular care in making bequests of bonds. After making several
particular legacies, she appears to dispose of the balance of her estate to
her sister, Belle Foster, and her friend, Irma Quirk. All cash remaining
after her debts were paid was to go to Belle Foster. The remainder of
her personal belongings were to go to Irma Quirk. Special attention
should be given to the fact that she separated cash from personal
belongings in her will. That evinces an intent on the decedent’s part to
leave Irma Quirk personal belongings other than cash, which was to go
to Belle. This court interprets the will as leaving Irma Quirk all personal
belongings, except cash, after all the particular legacies regarding
personal belongings have been satisfied under the will. Personal
belongings would include furniture, automobiles, clothes, jewelry, etc.
The conclusions reached by the court are further supported by the fact
that the decedent made no changes in her will with respect to the
bequests that were made to Belle Foster even though Belle Foster
predeceased her by three years.

Quirk relies on Dupuy v. Walther, 98-669 (La.App. 3 Cir. 10/28/98), 721

So.2d 995, urging that it stands for the proposition that “personal belongings”

includes immovable property and financial accounts. We disagree. In Dupuy, the

decedent’s olographic will stated, “I desire that all my personal belongings be given

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to my brother.” The decedent’s brother (Walther) was the sole legatee and he was

placed into possession of all his immovable and movable property. The decedent’s

sister (Dupuy) filed a petition to set aside the judgment of possession. Following a

hearing, Dupuy’s claims were dismissed and Walther was declared the universal

legatee. On appeal, Dupuy argued that her brother intended to only dispose of his

personal belongings and not his financial accounts or immovable property. We

discussed Succession of Meeks, 609 So.2d 1035 (La.App. 2 Cir. 1992), writ denied,

612 So.2d 86 (La.1993), but distinguished it from the facts present in Dupuy. In

Meeks, 609 So.2d at 1038, the appellate court stated:

The term “personal belongings,” when given its usual and ordinary
meaning, would not include business property and various financial
holdings. When used in a testament the term enjoys no settled or fixed
technical meaning but would include those things which had some
intimate relation to the person of the testratrix such as household items,
jewelry, home furnishings, clothing and other items which are truly
personal in nature. To hold that financial and business assets would fall
within the category of “personal belongings” would give that term a
strained meaning, ignoring its restrictive nature and proper signification.

We distinguished Dupuy from these facts in which there was more than one legatee

in the testament and the testatrix had sought the advice of counsel. In Dupuy, there

was no other legatee than Walther, and we agreed that the testator intended for

Walther to be the universal legatee. We do not find that holding at odds with the facts

of this case. Further, we agree with the second circuit’s definition of “personal

belongings” as those things which generally do not include immovable property and

financial accounts. It is clear from reviewing Cottrell’s testament that she intended

that certain immovable property and financial holdings would go to specific persons.

We find nothing in the bequest to Quirk making her a universal legatee. Additionally,

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our review of the record convinces us that Cottrell only intended that Quirk receive

any and all personal belongings as understood in the above definition. We find the

trial court respected those wishes by awarding Quirk the jewelry portion of Foster’s

lapsed legacy.

Moreover, while counsel’s alternative argument that Quirk is a general

legatee because she was left a specific fraction (i.e. movables) is novel, it is not

accurate. The Civil Code provides for an exclusive list of things that make up a

general legacy and none were present here. See La.Civ.Code art. 1586. Quirk’s

legacy was particular and the trial court correctly found that the two lapsed legacies,

other than the jewelry, would devolve by intestacy.

CONCLUSION

The judgment homologating tableau of distribution and of possession is

affirmed. All costs of this appeal are assessed against the defendant-appellant, Irma

Lavergne Quirk.

AFFIRMED.

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