Succession of James Oliver Love

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-245

SUCCESSION OF JAMES OLIVER LOVE

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 40,853
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and D. Kent Savoie, Judges.

AFFIRMED.

Leslie F. Halle
Gold, Weems, Bruser, Sues & Rundell
P. O. Box 6118
Alexander, LA 71307-6118
Telephone: (318) 445-6471
COUNSEL FOR:
Other Appellant - Manor Love

Penny H. Tullos
Stafford, Stewart & Potter
P. O. Box 1711
Alexandria, LA 71309-1711
Telephone: (318) 487-4910
COUNSEL FOR:
Other Appellee - Rebecca Love

THIBODEAUX, Chief Judge.

The Succession of James Oliver Love, represented by his brother,

Manor Love Sr., appeals a judgment in favor of the decedent’s spouse, Rebecca

Love, finding that two deposit accounts at Capital One Bank were the subjects of

valid donations inter vivos by James Love to Rebecca Love. Finding no manifest

error in the trial court’s judgment, we affirm.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in granting
a new trial and finding that the facts supported an
inter vivos donation of insurance proceeds by the
decedent to his spouse; and

(2) whether the trial court erred as a matter of law in
finding an inter vivos donation of insurance
proceeds by the decedent to his spouse.

II.

FACTS AND PROCEDURAL HISTORY

James Oliver Love owned a house in St. Landry Parish. He had no

children. James began dating Rebecca Tisdale Love. Rebecca owned a home in

Rapides Parish. James and Rebecca resided together in Rebecca’s home for the

last four and a half years of James’s life, but they did not legally marry until June

of 2012, after a series of life-changing events leading to James’s death in August

2012.

In April 2012 James went to check on his house in Opelousas, and an

unknown gas leak caused an explosive fire, injuring James and destroying his

house. In May 2012 James was diagnosed with terminal cancer and given only a

short time to live. At the end of May, James received approximately $130,000.00

in insurance proceeds which he deposited in a savings account and a checking

account with Capital One Bank. James spent his last two months setting his affairs

in order.

In June of 2012, James married Rebecca, and the couple went to the

bank to sign signature cards, making the Capital One accounts joint accounts.

James hired a driver to help him deliver items he owned, such as his tools, to

people he wished to have them. On July 2, 2012, James and Rebecca, and James’s

brother, Manor Love Sr., went to attorney Bruce Gaudin to take care of James’s

remaining assets. At his brother’s request, James left his immovable property to

his nephew, Manor Love Jr., by executing a donation inter vivos in the nephew’s

favor.1 The act of donation gave two lots in St. Landry Parish to Manor Love Jr.,

but it reserved to James any claim that he might have against Evangeline Gas

Company for the fire that had destroyed his house.

Also on July 2, 2012, James executed an unlimited power of attorney

in favor of Rebecca, giving her full authority, without reservation, to conduct all of

his affairs. The rights and powers granted included acting for him judicially,

making and receiving donations, withdrawing funds from any and all accounts, and

donating or pledging any property right owned or to be acquired by him, whether it

be movable, immovable, corporeal, or incorporeal. James told Rebecca that he

wanted her to have the funds in the joint accounts, and to pay all community debts

1
James intended to leave the house to Manor Love Sr.

2

and separate debts, including the balance on the mortgage on her home where they

resided together. He wanted her to be debt free before he died. He expressed his

wishes to others that he did not want her to have to go through a succession to get

the funds. Rebecca began to carry out his wishes but had not completed the

transactions when James died. Rebecca cared for James until he died on August 3,

2012, in Rebecca’s home, in a hospital bed in the couple’s bedroom.

Nine years earlier, in 2003, unbeknownst to Rebecca, James had

executed a brief one-page will. The will left two household items to one individual

and left the remainder of his estate to his brother, Manor Love Sr. The will also

designated Manor Love Sr. as the executor of James’s estate.

Several months after James’s death, Manor Love, Sr. (the Succession)

filed a petition to have Rebecca return the funds that she withdrew from the joint

accounts. Initially, the trial court found in favor of the Succession, ordering

Rebecca to return $91,527.55 of the $129,047.94 deposited in the accounts.

Rebecca’s motion for a new trial was granted, resulting in a judgment in her favor,

and dismissing the claims of the Succession. It is from this judgment that the

Succession appeals.

III.

STANDARDS OF REVIEW

Donative intent is a factual issue subject to the manifest error standard

of review. Rose v. Johnson, 06-518 (La.App. 3d Cir. 9/27/06), 940 So.2d 181, writ

denied, 06-2528 (La. 12/15/06), 944 So.2d 1273. Thus, a trial court's finding on

this issue cannot be reversed unless an appellate court, after review of the entire

record, finds both that no reasonable factual basis exists for the finding and that it

3

is manifestly erroneous or clearly wrong. See Stobart v. State, Through DOTD,

617 So.2d 880 (La.1993). In applying this standard, a trial court’s credibility

determinations are entitled to great deference. Hebert v. Rapides Parish Police

Jury, 06-2001 (La. 1/16/08), 974 So.2d 635 (on rehearing). The reviewing court

must keep in mind that if a trial court’s findings are reasonable based upon the

entire record and evidence, an appellate court may not reverse even if it is

convinced that had it been sitting as trier of fact it would have weighed the

evidence differently. Housely v. Cerise, 579 So.2d 973 (La.1991). This principle

is grounded not only upon the better capacity of the trial court to evaluate live

witnesses, but also upon the proper allocation of trial and appellate functions

between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Statutory interpretation is subject to a de novo review on appeal. Harrah’s Bossier

City Inv. Co., LLC v. Bridges, 09-1916 (La. 5/11/10), 41 So.3d 438.

IV.

LAW AND DISCUSSION

The Succession contends that the trial court erred in granting Rebecca

a new trial and then in finding that James completed a valid donation inter vivos to

Rebecca of the insurance proceeds that he had placed in joint accounts bearing

both his name and Rebecca’s name. The crux of the Succession’s argument turns

on the fact that James did not execute an authentic act entitled “donation inter

vivos” in conjunction with the other written acts concerning the funds in the joint

accounts in the weeks before his death. We find that James did complete a valid

donation inter vivos to Rebecca.

4

“A donation inter vivos is a contract by which a person, called the

donor, gratuitously divests himself, at present and irrevocably, of the thing given in

favor of another, called the donee, who accepts it.” La.Civ.Code art. 1468. “Every

donation made . . . by a married person to his or her spouse shall be as irrevocable

as if made to a stranger.” La.Civ.Code art. 2351. “A donation inter vivos is

without effect until it is accepted by the donee. The acceptance shall be made

during the lifetime of the donor.” La.Civ.Code art. 1544. “The acceptance of a

donation may be made in the act of donation or subsequently in writing.” Id.

“When the donee is put into corporeal possession of a movable by the donor,

possession by the donee also constitutes acceptance of the donation.” Id. “A

donation is effective upon acceptance. When the donation is effective, the

ownership or other real right in the thing given is transferred to the donee.”

La.Civ.Code art. 1551.

Generally, a donation inter vivos of a corporeal movable can be

accomplished by manual delivery, pursuant to La.Civ.Code art. 1543,2 while the

donation of an incorporeal movable requires an authentic act, unless the law

provides otherwise, pursuant to La.Civ.Code art. 1541.3 It has long been held that

“[a]n account on deposit is an incorporeal right.” La.Civ.Code art. 473; 4

Broussard v. Broussard, 340 So.2d 1309, 1313 (La.1976). However, there are

numerous exceptions to the form requirement of Article 1541. La.Civ.Code art.

2
“The donation inter vivos of a corporeal movable may also be made by delivery of the
thing to the donee without any other formality.” La.Civ.Code art. 1543.
3
“A donation inter vivos shall be made by authentic act under the penalty of absolute
nullity, unless otherwise expressly permitted by law.” La.Civ.Code art. 1541.
4
“Rights, obligations, and actions that apply to a movable thing are incorporeal movables.
Movables of this kind are such as bonds, annuities, and interests or shares in entities possessing
juridical personality.” La.Civ.Code art. 473.

5

1541, Revision Comment (b), Revision Comments–2008. Additionally, the

substantive requirements of divestment and donative intent must be fulfilled in

order to effect a valid donation. Rose v. Johnson, 940 So.2d 181.

INTENT

In her memorandum supporting her motion for a new trial, Rebecca

submitted that the trial court’s earlier judgment against her was contrary to the law

and evidence and should be reversed pursuant to La.Code Civ.P. arts. 1971 and

1972. The trial court agreed and issued written reasons for the new judgment in

her favor, stating that it had found her most credible and that she had provided

strong and convincing evidence of James’s donative intent. We find no manifest

error in the trial court’s conclusions in that regard.

As Rebecca pointed out, she was directed by James to pay off her

debts and his debts using the funds in the Capital One joint accounts, and he

checked with her each day to make sure that she was paying off the debts as he

requested. In compliance with his direction, she paid off three debts totaling

$33,938.09, via electronic transactions, prior to James’s death. It has long been

held that the withdrawal of funds under those circumstances meets the

requirements for the manual delivery of a corporeal movable, i.e., the funds,

pursuant to former La.Civ.Code art 1539, now La.Civ.Code art. 1543.

In Succession of Miller, 405 So.2d 812 (La.1981), the Louisiana

Supreme Court found that where the donor expressed her unqualified intent on

several occasions that the donee have money from the donor’s savings account,

and where the donee withdrew the funds before the donor’s death in accordance

with the donor’s wishes, there was a valid inter vivos donation by manual gift of

6

the funds. When the donor’s will to give and the donee’s actual possession of the

movable property operate simultaneously, there is a sufficient delivery to constitute

a valid manual donation inter vivos. Succession of Hunt, 47,372 (La.App. 2 Cir.

9/20/12), 135 So.3d 654.

The donee of a manual gift must show by strong and convincing proof

that the donor had intent to irrevocably divest himself of a thing and that delivery

was made; outward acts, together with any admissible evidence of the relationship

of the parties, are important to prove a manual donation. Broussard v. Crochet,

Broussard & Co., 477 So.2d 166 (La.App. 3 Cir. 1985). The deposition testimony

of Christopher Berrier and Julie Berrier corroborated Rebecca’s testimony

regarding James’s donative intent. Each testified to the close relationship that they

shared with Rebecca and James and to the time their family spent with the couple.

In particular, they testified that James specifically told them that he wanted to take

care of Rebecca financially. Julie Berrier explained that James wanted Rebecca to

be able to pay some things off with the money that he was leaving her. This

testimony of Christopher and Julie Berrier was uncontradicted by the Succession.

In further support of James’s donative intent at the end of his life was

evidence of his acts of divestment of his possessions after he was diagnosed with

terminal cancer in May 2012. These acts included: the signature cards signed at

the bank authorizing Rebecca to withdraw funds in June before he died in August;

the unlimited power of attorney that he executed in favor of Rebecca on July 2

before attorney Bruce Gaudin; the inter vivos donation of his immovable property

to his nephew, also executed before Bruce Gaudin on July 2; and his donation of

all of his tools, guns, and vehicles to his friends and family. All of these outward

acts demonstrate a pattern of behavior by James that support his donative intent

7

after the gas fire in April, which destroyed his house. Even his marriage to

Rebecca in June, after living with her for over four years, indicates that he wanted

to legally reinforce the other intentional steps he was taking to provide for her after

he was gone. Of particular import is the power of attorney.

THE POWER OF ATTORNEY

The record contains Rebecca’s affidavit stating that, after James was

diagnosed with terminal cancer and given only a short time to live, the couple met

with attorney Bruce Gaudin to settle James’s affairs. She averred that James told

Mr. Gaudin about the diagnosis and said he wanted to take care of his affairs so

that no legal proceedings would have to be filed after he died. She further stated

that James expressed his desire that Rebecca not be left to worry about any medical

bills, funeral and burial expenses, or any outstanding separate or community debts.

Accordingly, Mr. Gaudin prepared, and James executed, a donation inter vivos,

giving his nephew two lots in St. Landry Parish, and an unlimited power of

attorney giving Rebecca power over all of his remaining property and rights of

every kind. The pertinent parts of the power of attorney designated Rebecca . . .

to be his agent and attorney-in-fact, granting to the said
AGENT full authority to act for him in the conduct of all
of his affairs. Said Agent shall have full authority to act.
The mandate granted herein to include, but not be limited
to, full authority to:

(1) Open and answer all correspondence.

(2) Deposit in and withdraw from any banks
or financial institutions any and all funds,
notes, certificates and financial instruments
for account of PRINCIPAL.

(3) Make and endorse promissory notes and
other evidence of indebtedness in

8

PRINCIPAL’s name, and to draw, endorse
and accept checks and bills of exchange;

(4) Borrow money on the notes or other
obligations of PRINCIPAL, such to be
executed on PRINCIPAL’s behalf by
AGENT.

(5) Buy, accept, or receive by donation, any
type of property rights of PRINCIPAL.

(6) Sell, quitclaim, donate, partition,
exchange, compromise, mortgage, assign,
lease and/or pledge any or all property,
interests or rights of any kind owned or to be
acquired by PRINCIPAL, including rights in
corporeal and incorporeal property,
movables and immovables (specifically
including all real estate interests owned by
PRINCIPAL, wherever located), and to
receive and receipt for any sums or rights
receive thereby.

(7) Execute, in connection with the sale,
quitclaim, donation, partition, exchange,
compromise, mortgage, assignment, lease
and/or pledge of property on behalf of
PRINCIPAL, an[y] documents or
agreements necessary to accomplish the
foregoing, containing such terms as AGENT
in his or her sole discretion deems advisable,
including security clauses and confession of
judgment.

....

(11) Sue in PRINCIPAL’s name and on
PRINCIPAL’S behalf as well as be sued on
behalf of PRINCIPAL, including the right to
appear before all courts of law on
PRINCIPAL’s behalf for all purposes, and
further to compromise or refer to arbitration
any claims (whether asserted judicially or
not) for or against PRINCIPAL, and to make
transaction in matters of litigation.

(12) Extend or waive prescription on any
obligations due to PRINCIPAL.

9

(13) Represent PRINCIPAL judicially or
otherwise, whether as heir, legatee, creditor,
executor, administrator or otherwise, in all
successions or estates in which PRINCIPAL
maybe or become interested, including any
acceptance or renunciation thereof; to apply
for the administration thereof and demand,
obtain, and execute all orders an decrees as
AGENT may deem proper therein; to settle,
compromise and liquidate PRINCIPAL’S
interest therein; and to receive and receipt
for all property to which PRINCIPAL may
be entitled in such successions or estates.

(14) Sign and file any and all Federal, State
and local tax returns on PRINCIPAL’s
behalf and represent PRINCIPAL in any
connection therewith.

(15) Employ, on PRINCIPAL’s behalf, any
legal, financial, accounting, geological or
other assistance to reasonably protect
PRINCIPAL’s interests and rights.

(16) Accept or renounce a Succession.

(17) Make health care decisions for the
PRINCIPAL, such as a surgery, medical
expenses, nursing home residency, and
medication.

(18) PRINCIPAL hereby grants unto the
AGENT full release authority to obtain
medical information concerning the
PRINCIPAL. It is the intent of the
PRINCIPAL that the AGENT shall be able
to obtain any medical information
concerning the PRINCIPAL, and any
privacy rights granted to the PRINCIPAL by
the Health Insurance Portability and
Accountability Act (HIPAA) are waived.
All physicians, hospitals, pharmacies,
insurers and others are hereby directed to
release the health records of the
PRINCIPAL to the AGENT. This power of
attorney supersedes any prior information-
restricting agreement the PRINCIPAL may
have given to health care providers.

10

It is the intent of PRINCIPAL in executing this
mandate that said AGENT shall be empowered to act for
PRINCIPAL in any and all matters, without reservation
of any kind and to the fullest extent allowed by law, as
completely as if PRINCIPAL were acting for himself;
and that said AGENT shall have full power of
substitution herein and power of revocation of said
substitution.

In her motion for a new trial, Rebecca addressed the issue of donative

intent in the power of attorney, pointing out as error the trial court’s view that the

power of attorney did not give Rebecca authority to make inter vivos donations to

herself. In its written reasons for granting the new trial and finding strong donative

intent in favor of Rebecca on other grounds, the trial court did not retract that view

but stated summarily that the power of attorney “did not expressly authorize”

Rebecca to make donations to herself. Contract interpretation involves questions

of law, and those questions are reviewed de novo. Wooley v. Lucksinger, 09-0571

(La. 4/1/11), 61 So.3d 507. Accordingly, we find that, taken as a whole, and

especially under the circumstances of impending death in this case, the power of

attorney does expressly authorize Rebecca to withdraw funds from all accounts in

paragraph (2) and to donate corporeal and incorporeal property and rights of any

kind in paragraphs (6) and (7) without limitation.

Here, the power of attorney satisfies the laws of mandate requiring

express authority to make inter vivos donations under La.Civ.Code art. 2997(1).

Revision Comment (a) of that Article states: “There should be no doubt that under

the Louisiana Civil Code of 1870, a principal may expressly authorize the

mandatary to make a donation on behalf of the principal.” Id. The Comment

further states that in spite of tax and estate planning issues, “Civil Code Article

11

2997(1) (Rev. 1997) makes it clear that, under Louisiana law, a mandatary may be

given authority to make gifts by virtue of an express mandate.”

With regard to whose interest is being served, “[t]he contract of

mandate may serve the exclusive or the common interest of the principal, the

mandatary, or a third person.” La.Civ.Code art. 2991 (emphasis added). As for

the authority to donate to oneself, or self-deal, La.Civ.Code art. 2998 (emphasis

added) states: “A mandatary who represents the principal as the other contracting

party may not contract with himself unless he is authorized by the principal, or, in

making such contract, he is merely fulfilling a duty to the principal.” Our courts

have found that, unlike the legislative intent in the language of Articles 2996

(authority to alienate) and 2997 above, the language of Article 2998 does not

require that the authority to self-deal be expressed in writing; rather, the authority

to self-deal can be oral.

In Fernandez v. Hebert, 06-1558 (La.App. 1 Cir. 5/4/07), 961 So.2d

404, writ denied, 07-1123 (La. 9/21/07), 964 So.2d 333, the first circuit found that

the donor had intent to donate and the donor’s nephew had express oral authority

to act as mandatary and effect donations of stock to himself and his siblings, even

though the residuary legatee of the donor’s will claimed that the authority had to be

in writing. In reaching this conclusion, the Fernandez court interpreted the articles

on mandate by analyzing prior jurisprudence:

In Rutledge [v. Hibernia Corp., 00-0674 (La.App.
4 Cir. 1/16/02), 808 So.2d 765], the fourth circuit
examined whether a petition for damages for alleged acts
of negligence and breach of contract stated a cause of
action. There, Rutledge had averred that as caretaker of
the decedent, she had been given an unlimited power of
attorney authorizing her to perform all acts for the
decedent that she would be legally able to perform for
herself. Rutledge subsequently assisted the decedent in

12

making two donations to family members. While at the
bank acquiring funds for one of the donations, the
decedent instructed Rutledge to cash a certificate of
deposit and expressed her intent to donate the cashed
funds to Rutledge. It was alleged that Rutledge properly
completed the paperwork; a bank employee informed her
that the paperwork would be sent to a New Orleans office
for processing; and the bank employees were aware that
Rutledge had a power of attorney from the decedent.
After the decedent died, Rutledge returned to the bank to
inquire about the delay in delivery of the certificate of
deposit. She was advised an error had occurred and that
the bank had failed to process the paperwork properly.
Thus, the certificate of deposit was still in the decedent’s
name upon her death and believed to have been paid or
delivered to the decedent’s succession.

Noting that under the commercial laws, an
instrument is transferred by delivery to someone other
than its issuer for the purpose of giving the recipient the
right to enforce the instrument and concluding that the
power of attorney that Rutledge relied upon did not
expressly authorize her to make donations, the court
considered whether the allegations of the principal’s
verbal authority were sufficient to authorize her to make
the donation to herself on behalf of the decedent.
Pointing to La. C.C. art. 2998, which states “A
mandatary who represents the principal as the other
contracting party may not contract with himself unless he
is authorized by the principal, or, in making such
contract, he is merely fulfilling a duty to the principal,”
the Rutledge court applied that article to the allegations
of the petition and held that no written authorization by
the principal was required for a mandatary to self deal.
[Id.] at 771. Thus, the Rutledge court concluded the
petition stated a cause of action.

Fernandez, 961 So.2d at 410–11 (footnote omitted). The Fernandez court further

found La.Civ.Code art. 2993 instructive: “The contract of mandate is not required

to be in any particular form. Nevertheless, when the law prescribes a certain form

for an act, a mandate authorizing the act must be in that form.” In this case, the

mandate to donate was written and was in fact in authentic form, i.e., the power of

attorney, thus satisfying La.Civ.Code arts. 2997 and 2993. Because Rebecca was

13

authorized and instructed by James to use the funds for herself, La.Civ.Code art.

2998 is also satisfied.

Recently, in Tatum v. Riley, 49,670 (La.App. 2 Cir. 5/6/15), 166 So.3d

380, the second circuit found that the mother’s power of attorney authorized the

son to donate the mother’s property to himself, despite claims of his half-siblings

that the power of attorney had no express provision granting such authority. The

court found that the power of attorney granted the son broad and express authority

to act with regard to the mother’s property; and that the mother expressly

authorized the son to assign, sell, or otherwise dispose of property in any manner,

including making gratuitous, onerous, or remunerative donations. The court found

that the power of attorney was further evidence of donative intent: “[The mother]

shared a joint account with [the son] and named him as her agent in the power of

attorney. These facts suggest that she trusted him with her affairs and provide

some further evidence of her donative intent, as expressed by the authority

conferred upon [the son] in the power of attorney.” Tatum, 166 So.3d at 385.5

Here, we find that the power of attorney did expressly give Rebecca

unlimited power to withdraw the funds and make donations, and that James

authorized her to use the funds for herself, or donate the funds to herself. We

further find that the power of attorney was a means to facilitate the donation to

Rebecca when paired with the intentional actions of making the accounts joint

accounts and the instructions that James had given her about taking the funds and

being debt free. See Succession of Gorman, 209 La. 1092, 26 So.2d 150 (La.

1946). This intent is corroborated in the testimony of Christopher and Julie Berrier

5
But see In re Succession of Hunt, 47,372 (La.App. 2 Cir. 9/20/12), 135 So.3d 654, where
the court found no intent and the authority to donate did not authorize the mandatary to make
donations to himself, his wife, and his daughter.

14

regarding the funds James wanted to leave Rebecca and his satisfaction in knowing

that he could do this for her. Moreover, all of these facts and all of James’s actions

in giving away his other property support a pattern of behavior indicating that

James was engaged in estate planning. See Fernandez, 961 So.2d 404. This is also

apparent where, on the same day that he executed the power of attorney, four

weeks before he died, James executed a donation in favor of his nephew of the

land he had formerly bequeathed to his brother in a 2003 will. See Id.

Finally, we point out that in Rutledge, 808 So.2d 765, the donee was

found to have stated a cause of action against the bank based upon the donor’s

verbal instructions and authority to the donee, her mandatary, to self-donate under

La.Civ.Code art. 2998. The donee began the process of transferring the certificate

to her name under the power of attorney, but it was not completed, and she did not

institute the action until after the death of the donor. At the time of the donor’s

death, the certificate was still in the donor’s name and had not been converted to

cash or withdrawn by the donee.

Similarly here, Rebecca began to withdraw funds from the joint

accounts and pay bills as James wished under the power of attorney, but all of the

funds had not been withdrawn. Under the facts of this case, we find that of no

moment because we have found that the power of attorney was an authentic act

which facilitated James’s intent before he died to donate all of the funds to

Rebecca. To find otherwise would be contrary to James’s intent and would punish

Rebecca for staying by James’s side in the last four weeks of his life instead of

running to the bank to vaporize the accounts.

15

LOUISIANA CIVIL CODE ARTICLE 1550

The Succession contends that the trial court misinterpreted

La.Civ.Code art. 1550 as providing an exception to the authentic act requirement

for funds on deposit. We disagree. Article 1550 and its comments state as

follows:

Art. 1550. Form for donation of certain incorporeal
movables

The donation or the acceptance of a donation of an
incorporeal movable of the kind that is evidenced by a
certificate, document, instrument, or other writing, and
that is transferable by endorsement or delivery, may be
made by authentic act or by compliance with the
requirements otherwise applicable to the transfer of that
particular kind of incorporeal movable.

In addition, an incorporeal movable that is
investment property, as that term is defined in Chapter 9
of the Louisiana Commercial Laws, may also be donated
by a writing signed by the donor that evidences donative
intent and directs the transfer of the property to the donee
or his account or for his benefit. Completion of the
transfer to the donee or his account or for his benefit shall
constitute acceptance of the donation.

The Comments to Article 1550 explain:

(a) This Article is new. It is based in
part on the provisions of former Civil Code
Article 1536 (1870).

(b) In this Article, the words “for his
benefit” are included to cover situations
when the transfer may not be directly to the
donee’s account, but would be used to pay
something for his benefit, as for example, if
the transfer is made to a bank to pay off a
child’s debt. The same phrase is used in
Article 1505 concerning life insurance and
retirement benefits.

(c) Under Louisiana property law a
check or promissory note is classified as an
incorporeal movable. La. Civ. Code Art.

16

473. See Succession of Franklin, 968 So.2d
811, 42,496 (La. App. Cir. 10/17/07). The
transfer of such an instrument, whether
negotiable or non-negotiable, may be
governed by Chapter 9 of the Louisiana
Commercial Laws. A donation of such
property may be by, but does not necessarily
require, an authentic act.

There is an important distinction,
however, between a donation of the check
itself, which is an incorporeal movable, and
the donation of the money or funds
represented by the check. If A writes a
check to B, and B endorses and delivers the
check to C, the transfer to C is complete
upon B’s negotiation of the check to C. On
the other hand, if A intends to make a gift to
B of cash, and writes his personal check to
B, but B does not cash the check before A
dies, or B dies before cashing it, there is not
a completed gift of the funds in the bank
account.

At all times, donative intent is
required, but assuming donative intent, this
Article does not change the rule that an
attempted donation of cash by use of a
personal check does not constitute a
completed gift unless and until the check is
cashed. R.S. 10:3-203(a) provides that “an
instrument is transferred when it is delivered
by a person other than its issuer for the
purpose of giving to the person receiving
delivery the right to enforce the instrument.”
Thus, R.S. 10:3-105(c) provides that an
issuer is a “maker or drawer of an
instrument.” Thus, R.S. 10:3-203(a) does
not apply to the situation in which A gives
his personal check to B intending to make a
donation of the cash in A’s checking
account, because A is an “issuer” of his own
personal checks, and therefore R.S. 10:3-
203(a) does not apply.

Pursuant to the first paragraph of Article 1550, the Capital One

accounts are evidenced by a writing and the right to withdraw funds is transferred

17

by endorsement. When James and Rebecca signed the signature cards at the bank,

James signed to transfer the funds to Rebecca, and Rebecca signed to accept the

funds. The signing of signature cards has long been a requirement of the bank for

transferring accounts of deposit. In effect, Rebecca “negotiated” the transfer of the

accounts to her when she endorsed the signature cards, accepting the gift. The

language of Article 1550 does not limit its application to an account evidenced by

a certificate or an instrument, or even a document; nor does it require delivery, as it

states “transferrable by endorsement or delivery.” La.Civ.Code art. 1550

(emphasis added). Moreover, its reference to “endorsement” does not use the

spelling for the term of art “indorsement” that is used to sign over investment

securities in Louisiana’s Uniform Commercial Code–Investment Securities, at

La.R.S. 10:8-102.6 Instead, the language of Article 1550 is broad enough to cover

incorporeal deposit accounts 7 that are transferred by endorsements on signature

cards. Neither Article 1550 nor its Revision Comments, which are detailed and

specific, precludes application of the first paragraph to the Capital One checking

and savings accounts in this case. James did not write Rebecca a check for a

specific amount that she failed to negotiate or cash, which the Revision Comments

show would be fatal to her position. Rather, he donated all of the funds to her via

the signature cards and he executed a power of attorney in authentic form to

6
(11) ‘“Indorsement” means a signature that alone or accompanied by other words is
made on a security certificate in registered form or on a separate document for the purpose of
assigning, transferring, or redeeming the security or granting a power to assign, transfer, or
redeem it.” La.R.S. 10:8-102.
7
The Capital One accounts were “deposit accounts” pursuant to Chapter 9 of Louisiana’s
Uniform Commercial Code–Secured Transactions: ‘“Deposit account’ means a demand, time,
savings, passbook, or similar account maintained with a bank. The term does not include
investment property or accounts evidenced by an instrument.” La.R.S. 10:9-102(a)(29). Since
the definition of “deposit account” specifically excludes “investment property,” the second
paragraph of La.Civ.Code art. 1550 is not applicable.

18

facilitate that transfer. He was ill and dying and had no intention of going to the

bank or taking control of the funds. In making the accounts Rebecca’s accounts as

well, he gave up the exclusive rights to control the accounts, and in the power of

attorney, he reinforced Rebecca’s right to control the accounts.

In In re Succession of Gassiott, 14-1019 (La.App. 3 Cir. 2/4/15), 159

So.3d 521, writ denied, 15-493 (La. 5/15/15), 170 So.3d 968, a panel of this court

applied Article 1550 and found that the wife of the deceased accepted the gift of

settlement proceeds in a joint account when she signed the signature cards and

bank documents and could have withdrawn the funds at any time. Id. The panel

also found that the decedent husband, in creating the joint account had, for all

practical purposes, given up control when he gave his wife identical rights to the

funds. Id. It further found that “there are potentially two means by which the

donation inter vivos was effectuated: via donation at the time of creation of the

joint savings account or via the conversion of the funds to a corporeal movable

upon withdrawal thus requiring no formality.” Id. at 525. Importantly, the court

found that the donor had the intent to donate the account to his wife at the time he

created the joint account, and she accepted in writing by signing the signature

cards. Similarly here, the evidence is overwhelming that James took Rebecca to

the bank and had her execute signature cards for the purpose of giving the account

to her.

Following Gassiott, In re Succession of Harrison, 50,258 (La.App. 2

Cir. 11/18/15), 183 So.3d 579, quoted Gassiott and applied Article 1550 to an

uncle’s transfer of $92,000 to his niece by taking her to the bank and having the

manager transfer the funds from his account to a new account in the niece’s name.

Importantly in Harrison, the niece did not withdraw any of the funds during the

19

life of the donor, so there was no acceptance by withdrawal that appellant urges as

the only exception to an authentic act. Yet, the donation was found to be valid

because of the donor’s intent and the “extraordinary efforts” he went to in carrying

out his wishes. The court found, pursuant to Gorman, that the parties used “the

most expedient way of making and accepting the donation” and, as the supreme

court in Gorman has stated, “the law takes no account of useless formalities.” Id.

at 581. The evidence here is even stronger where James knew he was dying, and

all of his actions in his last two months show his intent in divesting himself of all

of his possessions by giving them to those he loved. This was particularly true for

Rebecca; he not only took her to the bank, he took her to the attorney’s office and,

wishing for there to be no succession proceedings and for her to have the funds

“presently” while he was alive, he was advised to execute the power of attorney.

In response to Gassiott, the Succession cites Succession of O’Krepki,

16-50 (La.App. 5 Cir. 5/26/16), 193 So.3d 574. There, the fifth circuit overturned

summary judgment in favor of the wife who had withdrawn funds from a joint

account on the day of the decedent’s death. The death however, was four years

after the couple opened the joint account, and, finding evidence lacking for

summary judgment, the appellate court remanded the case for a determination of

intent by the donor and acceptance by the wife during the life of the donor, which

is clearly not the case here before us.

As in Gassiott, Harrison, and O’Krepki, the Succession points to the

older jurisprudence interpreting La.Civ.Code art. 1536, which provided no

exceptions to the authentic-act requirement for the donation of incorporeal things.

See Succession of Miller, 405 So.2d 812 (La.1981). Prior to revision of the

applicable statutes, Article 1536 stated as follows: “An act shall be passed before a

20

notary public and two witnesses of every donation inter vivos of immovable

property or incorporeal things, such as rents, credits, rights or actions, under the

penalty of nullity.” While bank accounts, stocks, and certificates of deposit were

incorporeal movables which could only be donated by authentic act, the funds in

the accounts qualified as corporeal movables, which could be donated by manual

delivery, pursuant to La.Civ.Code art. 1539 (now La.Civ.Code art. 1543) as long as

the joint account holder “accepted” the donation during the lifetime of the donor.

See Id.

However, important changes have occurred in the laws affecting

donations inter vivos since 1981. Following Succession of Miller, which found on

rehearing that savings account funds were susceptible of manual delivery but

money represented by bearer bonds was not, the legislature enacted a statute

providing for a broad exception to Article 1536 in the form of negotiable

instruments. More specifically, in 1982, the legislature enacted La.R.S. 10:3-

201(4) which states:

Donations inter vivos of negotiable instruments shall be
governed by the provisions of this Chapter,
notwithstanding any other provision of the Louisiana
Civil Code or of any other law of this state relative to the
form of donations inter vivos, to the contrary.

The paragraph was made remedial and retrospective, as we stated in

Succession of Walker, 533 So.2d 70, 74 (La.App. 3 Cir. 1988), writ denied, 536

So.2d 1254 (La.1989):

Any donation inter vivos of a negotiable instrument made
on or before the effective date of this Paragraph, in
accordance with the provisions of Chapter 3 of Title 10
of the Louisiana Statutes of 1950 or the Louisiana Civil
Code or any other law of this state relative to the form of
donations inter vivos, is valid.

21

In Succession of Walker, we determined that a certified cashier’s check was a

negotiable instrument, such that the provisions of Title 10 applied rather than the

form requirements of the Louisiana Civil Code. Id.

Effective in 2009, the statutes on donations inter vivos were revised

by Acts 2008, No. 204, § 1, and Article 1536 became La.Civ.Code art. 1541,

which removes the no-exception concept and states: “A donation inter vivos shall

be made by authentic act under the penalty of absolute nullity, unless otherwise

expressly permitted by law.” La.Civ.Code art. 1541 (emphasis added). While

earlier decisions following the 1981 case of Succession of Miller reference manual

delivery as the “only exception” to the notarial act requirement, and even recent

cases have parroted the notion, the revision comments of 2008 state otherwise:

“Donations of both immovable and movable property must be made by notarial act

unless a particular exception applies. There are numerous exceptions to this

Article including Article 1543 (manual gift) and Article 1550 (stock certificates

and negotiable instruments).” La.Civ.Code art. 1541, Comment (b), Revision

Comments–2008 (emphasis added).

However, stock certificates and negotiable instruments are only two

examples of gifts addressed in Article 1550, and it does not limit its application to

only stock certificates and negotiable instruments. This is apparent in the first

paragraph discussing certificates, documents, instruments or other writings. And it

is apparent in Revision Comment (c) addressing checks and promissory notes,

“whether negotiable or non-negotiable,” that are governed by Chapter 9 of

Louisiana’s Uniform Commercial Code–Secured Transactions.

It is true that Gassiott and Harrison, discussed above, both involved

donees who converted the funds to either cash by withdrawal (Gassiott) or to a sole

22

account of her own (Harrison) before the death of the donor. However, neither of

those cases involved the power of attorney by authentic act that facilitated the

donation to Rebecca in this case. The evidence of James Love’s intent was strong

and convincing that he wanted Rebecca to have the funds in the accounts, and he

did everything he thought he should do in his remaining weeks. Rebecca testified

that when James executed the power of attorney in her favor, four weeks before he

died, he asked the attorney whether there was anything else he needed to do, and

the response was “no.” James wanted to die in peace, knowing that his affairs

were in order. Under Article 1550, the rights to the deposit accounts were

transferred to and accepted by Rebecca when she endorsed the signature cards and

bank documents always required for that particular kind of incorporeal movable.

Under revised La.Civ.Code art. 1551, “[a] donation is effective upon

acceptance. When the donation is effective, the ownership or other real right in the

thing given is transferred to the donee.” La.Civ.Code art. 1551. “Under this

Article delivery is not required if the acceptance is made by a means other than

corporeal possession.” Id. at Revision Comment (b). Under La.Civ.Code art.

2481, entitled Incorporeals, method of making delivery: “Delivery of incorporeal

movable things incorporated into an instrument, such as stocks and bonds, takes

place by negotiating such instrument to the buyer. Delivery of other incorporeal

movables, such as credit rights, takes place upon the transfer of those movables.”

Thus, Rebecca’s acceptance of the accounts by endorsement of the bank’s

documents also satisfies Articles 1550, 1551, and 2481.

23

V.

CONCLUSION

Based upon the foregoing, the judgment of the trial court in favor of

Rebecca Tisdale Love is affirmed. Costs of this appeal are assessed to the

Succession represented by Manor Love Sr.

AFFIRMED.

24