Succession of Russell Leavines

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-923

SUCCESSION OF RUSSELL LEAVINES

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 40,234
HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Billy Howard Ezell, Judges.

AFFIRMED.

Victor Herbert Sooter
Sooter & Associates
P. O. Box 1671
Alexandria, LA 71309
Telephone: (318) 448-8301
COUNSEL FOR:
OTHER APPELLEE - Betty Taylor Leavines

Zebulon M. Winstead
Crowell and Owens, L.L.C.
P. O. Box 330
Alexandria, LA 71309-0330
Telephone: (318) 445-1488
COUNSEL FOR:
OTHER APPELLANT - Mayme Holt Brown

THIBODEAUX, Chief Judge.

Mayme Holt Brown appeals a trial court judgment finding that the

testament of her great-grandfather, Russell Leavines (“the decedent”), bequeathed

a piece of immovable property known as Tract II to his wife, Betty Taylor

Leavines. The decedent died testate in 2011; his will left his “family home and

residence” to Brown, subject to a usufruct in favor of Betty Leavines, and left his

“remaining property” to Betty Leavines. At the time of his death, the decedent

possessed two pieces of immovable property, known as Tract I and Tract II. Based

on the decedent’s testament, the Detailed Descriptive List of his property, and the

parties’ memoranda, the trial court concluded that the decedent’s testament clearly

and unambiguously bequeathed Tract II to Betty Leavines as part of the decedent’s

“remaining property.” For the following reasons, we affirm the judgment of the

trial court.

I.

ISSUE

The sole issue in this case is whether the trial court correctly

determined that the decedent’s last will and testament clearly and unambiguously

bequeathed the piece of land known as Tract II to his widow, Betty Leavines.

II.

FACTS AND PROCEDURAL HISTORY

Russell Leavines died testate on October 22, 2011. He was married

twice and was survived by Betty Leavines. The decedent had one daughter from

his first marriage; Brown is his great-granddaughter. The decedent and Betty

Leavines had no children.

The decedent’s notarial last will and testament, dated August 23,

2011, includes two bequests relevant to this case. The first is a bequest to Brown,

which reads:

I give and bequeath to my great granddaughter, Amy
Holt Brown . . . all of my right, title, and interest in and
to my family home and residence (currently 9768
Highway 28 West, Boyce, Louisiana, 71409) in naked
ownership, subject to a right of usufruct in favor of Betty
[Taylor Leavines], which shall terminate upon her death
or remarriage.

The second bequest provides: “I give my remaining property to my wife, Betty

Taylor Leavines.” “Property” was defined in the testament as “property of which I

[the decedent] die possessed, of whatever nature or kind, wherever located and

however acquired, whether now owned by me or hereafter acquired.”

After Betty Leavines (the executrix of the decedent’s estate) and

Brown filed a Petition for Probate, Betty Leavines filed a Petition for Partial

Possession, which included a Detailed Descriptive List of the decedent’s property.

The list included, among other items, descriptions for two pieces of immovable

property. The first, “Tract I,” was described as:

Certain pieces, parcels, or tracts of land, together with all
buildings and improvements thereon and all rights, ways,
and privileges thereunto belonging or appertaining,
being, lying, and situated in Rapides Parish, Louisiana,
and being more particularly described as follows:

The East Half (E½) of Lot Three (3) and all
of Lot Four (4) of the Thomas F. Leavines
Partition situated in Section Fifty (50),
Township Four (4) North, Range Three (3)
West, Rapides Parish, Louisiana, as per plat
thereof recorded in Conveyance Book 645,

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Page 577, or the records of Rapides Parish,
Louisiana.

The second, “Tract II,” was described as:

A certain piece, parcel, or tract of land, being, lying and
situated in Rapides Parish, Louisiana, and being more
particularly described as Southeast Quarter (SE¼) of the
Northwest Quarter (NE¼) [sic] of Section Fifty (50),
Township Four (4) North, Range Three (3) West,
Rapides Parish, Louisiana LESS AND EXCEPT certain
tracts particularly described in the Act of Exchange dated
November 14, 1978, recorded in Conveyance Book 950,
Page 500 of the records of Rapides Parish, Louisiana, the
property herein conveyed containing an area of 11.38
acres, more or less, and being that property acquired by
Russell Leavines from Thomas E. Leavines in the Act of
Exchange described hereinabove.

In the Petition for Partial Possession, Betty Leavines noted that she and Brown

disputed whether Tract II was part of the bequest of the family home and

residence. Brown did not join in the Petition for Partial Possession.

The trial court ordered the parties to submit memoranda of law on

ownership of Tract II, as well as on whether the testament was clear and

unambiguous or whether the trial court ought to hear oral testimony. Brown

argued that the decedent had included Tract II in his homestead exemption under

La.R.S. 20:1, and that this indicated that Tract II was also part of his residence and

therefore bequeathed to Brown. She listed under “Undisputed Facts” in her

memorandum that “[t]he deceased went to the Rapides Parish Tax Assessor’s

Office while alive and signed a form designating both [Tract I] and [Tract II] as his

homestead under La. R.S. 20:1.” However, the record contains no such form or

other evidence of the decedent’s homestead. Betty Leavines asserted that

jurisprudence does not require “homestead” to be synonymous with “residence” or

“family home.” Betty Leavines also pointed out that the decedent’s will does not

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include Tract II in the description of the family home and Tract II was acquired

separately from Tract I, indicating that it is not part of the family home and

residence located on Tract I.

The trial court largely adopted Betty Leavines’s reasoning and

concluded that Tract II was clearly and unambiguously part of the bequest to her.

It did not address Brown’s argument regarding the homestead exemption. The trial

court issued its judgment based on the testament, the Detailed Descriptive List, and

the parties’ memoranda, but it did not hold a hearing to take testimony or other

evidence. Brown filed a timely appeal of the judgment, arguing that the trial court

erred in ruling that Tract II was part of the “remaining property” bequeathed to

Betty Leavines.

III.

LAW AND DISCUSSION

Brown argues on appeal that since both Tract I and Tract II were

designated as the decedent’s homestead pursuant to La.R.S. 20:1, Tract II was

clearly and unambiguously part of the “family home and residence” bequeathed in

naked ownership to Brown. Alternatively, Brown argues that the will is not clear

and unambiguous, and the case should be remanded so the trial court can conduct a

hearing to take evidence to determine the decedent’s intent. Betty Leavines

responds that Louisiana jurisprudence does not hold that a homestead under

La.R.S. 20:1 is synonymous with the family home or residence. She contends that

since Tract II was acquired separately, has a separate property description from

Tract I, and is not included in the description of the family home in the decedent’s

testament, Tract II is not part of the bequest to Brown.

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Before we reach the merits of the parties’ argument, we must

determine the proper standard of review in this case.

Standard of Review

Both parties frame the issue in this case as a question of fact, which

would normally be reviewed under the manifest error-clearly wrong standard of

review. See In re Succession of Bernat, 11-368 (La.App. 3 Cir. 11/2/11), 76 So.3d

1287, writ denied, 12-263 (La. 3/30/12), 85 So.3d 122. However, in this case, the

trial court did not hold a hearing or take evidence. Rather, the trial court only

reviewed and interpreted the language of the testament. When no evidence is

introduced to the trial court, the doctrine of manifest error does not apply. See

MWD Servs., Inc. v. Humphries, 09-668 (La.App. 3 Cir. 12/9/09), 26 So.3d 906.

Instead, “[i]nterpretation of an instrument’s language is a question of law that this

court reviews to determine whether the trial court was legally correct.” In re

Succession of Collett, 09-70, p. 2 (La.App. 3 Cir. 6/3/09), 11 So.3d 724, 726, writ

denied, 09-1485 (La. 10/2/09), 18 So.3d 112 (citing Cleland v. City of Lake

Charles, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied, 03-1380, 03-

1385 (La. 9/19/03), 853 So.2d 644, 645). Therefore, we will review the trial

court’s judgment for legal error.

Interpretation of Testament

Louisiana Civil Code Articles 1611 through 1616 govern the

interpretation of testaments. Louisiana Civil Code Article 1611(A) is particularly

relevant to this case:

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

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pursuing its spirit. The following rules for interpretation
apply only when the testator’s intent cannot be
ascertained from the language of the testament. In
applying these rules, the court may be aided by any
competent evidence.
This court has previously found, with regard to the interpretation of testaments:

“Courts must interpret a will according to its plain
language since ‘the intent of the testator is the paramount
consideration in determining the provisions of a will.’”
Succession of Hackney, 97-859, p. 5 (La.App. 3 Cir.
2/4/98); 707 So.2d 1302, 1306, writ denied, 98-596
(La.4/24/98); 717 So.2d 1172 (quoting Succession of
Schiro, 96-1567, p. 6 (La.App. 4 Cir. 4/9/97); 691 So.2d
1374, 1377, writs denied, 97-1400, 97-1423 (La.9/5/97);
700 So.2d 518). The intention of the deceased must be
ascertained from the whole will, and effect must be given
to every part of the will as far as the law will permit.
“Where it is a question of the choice between two
interpretations, one of which will effectuate, and the
other will defeat, a testator’s intention, the court will
carry out the intention of the testator.” Carter v.
Succession of Carter, 332 So.2d 439, 441 (La.1976)
(quoting Succession of LaBarre, 179 La. 45, 48, 153 So.
15, 16 (1934)). Additionally, Louisiana case law has
recognized that in the interpretation of wills, the first and
natural impression conveyed to the mind on reading the
will as a whole is entitled to great weight. “The testatrix
is not supposed to be propounding riddles but rather to be
conveying her ideas to the best of her ability so as to be
correctly understood at first view.” Succession of Meeks,
(La.App. 2 Cir. 1992); 609 So.2d 1035, 1038, writ
denied, 612 So.2d 86 (La.1993).
In re Succession of Helms, 01-1357, pp. 2-3 (La.App. 3 Cir. 3/6/02), 810 So.2d

1265, 1267-68.

In this case, the plain language of the testament bequeaths “my [the

decedent’s] family home and residence” to Brown, subject to a usufruct in favor of

Betty Leavines, and “my [the decedent’s] remaining property” to Betty Leavines.

The trial court concluded, and the parties do not dispute, that the family home is

located on Tract I. This interpretation is further aided by the property descriptions

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of each tract: Tract I includes “all buildings and improvements thereon,” whereas

Tract II is described only as “[a] certain piece, parcel or tract of land” without any

buildings. The bequest to Brown (the “family home and residence (currently 9768

Highway 28 West, Boyce, Louisiana, 71409)”) indicates that the family home and

residence are located in the same place: Tract I. Tract II has a separate property

description, and there is nothing to indicate that it was part of the “residence”

located on Tract I. The will and the detailed property description therefore clearly

bequeath Tract I to Brown in naked ownership as the “family home and residence”

and Tract II to Betty Leavines as part of the decedent’s “remaining property.”

We further note that Brown’s argument regarding the decedent’s

supposed homestead exemption is not supported by any evidence and cannot be

considered by this Court. Brown argues that Tract II is part of the residence

because it was included in the decedent’s homestead exemption under La.R.S.

20:1. While Brown claims that the inclusion of Tract II in the homestead

exemption is an “[u]ndisputed [f]act[],” there is no evidence in the record that this

was true, or even that the decedent ever designated a homestead under La.R.S.

20:1. “Evidence not properly and officially offered and introduced into evidence

cannot be considered” by a court of appeal. Ray Brandt Nissan, Inc. v. Gurvich,

98-634, p. 3 (La.App. 5 Cir. 1/26/99), 726 So.2d 474, 476 (citing Touzet v. Mobley,

612 So.2d 890 (La.App. 5 Cir. 1993), writ denied, 612 So.2d 890 (La.1993)).

Accordingly, Brown’s argument that Tract II was included in the homestead

exemption and therefore was part of the decedent’s residence will not be

considered by this Court.

Because we find the decedent’s will clear and unambiguous, we need

not consider Brown’s argument that the case ought to be remanded to determine

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the decedent’s intent. The trial court’s judgment that the decedent’s testament

bequeathed Tract II to Betty Leavines was legally correct.

IV.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are

assessed to the appellant, Mayme Holt Brown.

AFFIRMED.

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