Succession of Keffer Thomas Delino, II v. the Jake Delino Trust

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-1053

SUCCESSION OF KEFFER THOMAS DELINO, II

VERSUS

THE JAKE DELINO TRUST, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 98814
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Van H. Kyzar, Judges.

REVERSED.

Louis G. Garrot, III
P. O. Box 366
Abbeville, LA 70511-0366
Telephone: (337) 652-8618
COUNSEL FOR:
Plaintiff/Appellee - Succession of Keffer Thomas Delino, II

Lawrence L. Lewis, III
Onebane Law Firm, APLC
P. O. Box 3507
Lafayette, LA 70502-3507
Telephone: (337) 237-2660
COUNSEL FOR:
Defendant/Appellant - Carole Delino Niebler

Paul G. Moresi, III
P. O. Box 1140
Abbeville, LA 70511-1140
Telephone: (337) 898-0111
COUNSEL FOR:
Defendants/Appellants - The Jake Delino Trust and James D. Delino, Jr.

THIBODEAUX, Chief Judge.

Plaintiff, the succession representative of the Succession of Keffer

Thomas Delino, II, filed suit against the defendants, the Jake Delino Trust (Trust),

Carole Delino Niebler (Carole), and James D. Delino, Jr. (Jimmy), seeking to

annul a transfer of trust interest. Created in the testament of James D. Delino, Sr.

(James), the Trust named both Jimmy and his brother, Keffer Thomas Delino, II

(Keffer), income beneficiaries for life and directed the trustee, upon their deaths, to

distribute the corpus of the trust to their “legal heirs.” After Keffer’s passing, a

one-half interest in the corpus was transferred to Jimmy subject to a lifetime

usufruct in favor of their mother, Carole, as directed by our law on intestacy. The

trial court, however, found that Keffer’s universal legatee was his only legal heir

and granted the motion to annul the transfer.

Interpreting the Trust in accordance with the law in effect at the time

of its creation, we find that the trial court legally erred in his judicial construction

of the term “legal heir” and in his annulment of the transfer of trust interest.

Accordingly, we reverse the trial court’s judgment in its entirety.

I.

ISSUES

The defendants entreat us to consider:

(1) whether the trial court erred in refusing to consider
the testamentary intent of James D. Delino, Sr. in
creating the Jake Delino Trust and in regard to his
disposition of the principal interest of the deceased
income beneficiary in the corpus of the trust;

(2) what was the testamentary intent of James D.
Delino, Sr. in instructing in his will that the
principal interest in the corpus of the Jake Delino

Trust attributable to the deceased beneficiary
would go to the deceased beneficiary’s “legal
heirs”;

(3) whether the trial court erred in its determination of
the meaning of the phrase “legal heirs” in James D.
Delino, Sr.’s last will and testament;

(4) in view of the above issues, whether the trial court
erred in annulling the Transfer of Trust Interest;

(5) whether the trial court erred in holding that Keffer
Thomas Delino, II’s interest in the Jake Delino
Trust was an asset of his succession that passed
under his will to his universal legatee, Brent
Andrew Griffin; and

(6) whether the trial court erred in its finding that there
was no language in James Delino, Sr.’s will
signifying that he wanted to preclude his sons from
leaving their estates at death to a third party (a
non-Delino)?

II.

FACTS AND PROCEDURAL HISTORY

On May 17, 1989, James executed his last will and testament in which

he provided that, upon his death, the vast majority of his estate would go into a

spendthrift trust. He named as income beneficiaries his two sons, Keffer and

Jimmy. The testament further provided that, upon the death of the first income

beneficiary, the deceased beneficiary’s interest in the Trust would terminate, and

the Trust would continue as to the surviving income beneficiary until his death.

Upon the termination of the Trust as to any interest, James directed the trustee to

distribute the proportionate part of the trust corpus to the “legal heirs” of the

deceased income beneficiary. In relevant part, the testament provided:

If it has not already been done, at my death I
establish a trust to be called the Jake Delino Trust. I
appoint my sister, Alfreda Delino as Trustee to serve

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until her death or incapacity. When that occurs, I appoint
my wife, Carole A. Hoffpauir, as Trustee.

I give and bequeath all of the balance of my
separate property to the Jake Delino Trust. Further, I
give the naked ownership of my interest in all community
property to the Jake Delino Trust, together with the
naked ownership of my interest in the residence and lot
where my mother is presently residing[.]

The following provisions will apply to the Jake
Delino Trust:

1. On December 15 of each year, all income
produced by the Jake Delino Trust will be distributed
equally to Keffer Thomas Delino, II and James Delino,
Jr., my two sons. This distribution will be made after all
taxes and expenses have been deducted from the income.

2. This trust shall terminate as to the interest of
each beneficiary of income upon the death of each
beneficiary of income, and continue as to the beneficiary
of income who survives until his death.

3. Upon termination of the trust as to any interest,
the trustee shall distribute the proportionate part of the
corpus of the trust to the legal heirs of the income
beneficiary who has passed away.

4. This shall be a “spend thrift trust”, that is,
voluntary and involuntary alienation by a beneficiary of
his interest shall be prohibited to the maximum extent
permitted by Louisiana Law.

James died on January 29, 1990. He was survived by his wife,

Carole, and his two sons. Upon his death, the Trust was created, and the property

transferred to the trustee. Thereafter, as lifetime income beneficiaries, Keffer and

Jimmy received income from the Trust.

Keffer died on April 20, 2012, leaving no descendants and no

surviving spouse. In his last will and testament, Keffer bequeathed his entire estate

to his companion, Brent Andrew Griffin (Brent).

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On June 6, 2013, Carole, as trustee, along with Jimmy executed an

instrument entitled “Transfer of Trust Interest,” which was then recorded in the

Conveyance Records of the Parish of Vermillion. The transfer conveyed a one-

half interest in the corpus of the Trust to Jimmy subject to Carole’s lifetime

usufruct. On June 4, 2014, Brent, as the testamentary executor of Keffer’s

succession, instituted the instant nullity action. Brent asserted that he was Keffer’s

“legal heir” and, therefore, the transfer of the immovable property to Jimmy and

Carole should be annulled and the property included in Keffer’s succession.1

This matter was originally tried on October 12, 2015, and the trial

court rendered judgment on December 28, 2015, setting aside the transfer and

awarding judicial interest to the plaintiff. In his reasons, the trial court found that

Brent, as Keffer’s universal legatee, was “the only legal heir to inherit the estate of

Keffer Delino, II.” The defendants moved for a new trial and, on April 29, 2016,

the trial court found that the award of judicial interest, which was not prayed for or

provided by law, was clearly contrary to the law and the evidence. The trial court

then granted a new trial as to all issues.

On March 1, 2017, the trial court, without allowing the introduction of

any evidence, “reinstitute[d]” his original ruling of December 28, 2015.

Defendants requested the opportunity to proffer witnesses and exhibits relative to

testamentary intent. The trial court ordered the evidence be taken by depositions,

which were conducted on April 3, 2017, and are now part of the record on appeal.

On June 15, 2017, the trial court rendered judgment, annulling the transfer and

1
Brent is now deceased, having left his entire estate to a non-profit trust—The Brent
Griffin Pet Trust—“to be formed to care for his dog, Bouvier, and to be used to benefit and care
for abandoned and neglected dogs and cats in the Abbeville, Louisiana area.” Debra Garrot, the
trustee of the non-profit pet trust, now serves as representative of both Keffer’s and Brent’s
successions.

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awarding $50,000 in compensatory damages plus legal interest from September 16,

2016.

III.

STANDARD OF REVIEW

An appellate court reviews questions of fact under the manifest error-

clearly wrong standard of review. 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, when a trial court merely reviews and interprets testamentary language

without the introduction of evidence, its interpretation is a question of law, which

we review de novo. Succession of Leavines, 15-923 (La.App. 3 Cir. 3/2/16), 215

So.2d 800, writ denied, 16-0865 (La. 9/6/16), 205 So.3d 918.

IV.

LAW AND DISCUSSION

A trust is “the relationship resulting from the transfer of title to

property to a person to be administered by him as a fiduciary for the benefit of

another.” La.R.S. 9:1731 (1990). The person “to whom title to the trust property

is transferred” is the trustee. La.R.S. 9:1781 (1990). A trustee administers the

property as a fiduciary of the “person for whose benefit the trust was created[,]”

known as the beneficiary. La.R.S. 9:1801 (1990). There may be beneficiaries “as

to income or principal or both.” La.R.S. 9:1805 (1990). The income beneficiary is

the one “to whom income is payable,” whereas a principal beneficiary is “entitled

to principal” or the corpus of the trust. La.R.S. 9:1725(2) & (4) (1990). While a

lifetime “interest in income terminates upon the death of the designated

beneficiary,” the interest of a principal beneficiary, upon his death, “vests in his

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heir or legatees, subject to the trust” and the laws regulating successions and

donations. La.R.S. 9:1964 & 1972 (1990).

Most importantly, though, the settlor is the “person who creates a

trust.” La.R.S. 9:1761 (1990). “A trust or a disposition in trust may be made

subject to any conditions not forbidden in [the Louisiana Trust] Code and not

against public order or good morals.” La.R.S. 9:1736 (1990). Moreover, “[a]

settlor may dispose of property in trust to the same extent that he may dispose of

that property free of trust and to any other extent authorized by this Code.”

La.R.S. 9:1737 (1990). The settlor can also restrict, to the full extent permitted by

law, the “alienation by a beneficiary of an interest in income or principal” through

the creation of a spendthrift trust. La.R.S. 9:1725(7) (1990). Testamentary trusts,

like the one at issue herein, “may be created only in one of the forms prescribed by

the laws regulating donations mortis causa.” La.R.S. 9:1751 (1990).

“In construing a trust, the settlor’s intention controls and is to be

ascertained and given effect, unless opposed to law or public policy.” Richards v.

Richards, 408 So.2d 1209, 1211 (La.1981).

[T]he words used in a trust instrument must be construed
in that sense which will best effectuate the intent of the
creator or settlor of the trust and, if possible, to avoid the
destruction of the trust. In the determination of the
settlor’s intent, the words used will be taken in their
usual, ordinary, or natural meaning in the absence of
anything in the instrument under consideration to deflect
from that meaning.

La.R.S. 9:1753 (1990), Comments—Prof. Leonard Oppenheim (quoting 90 C.J.S.

§ 161h). “A trust instrument shall be given an interpretation that will sustain the

effectiveness of its provisions if the trust instrument is susceptible of such an

interpretation.” La.R.S. 9:1753. As with any testamentary disposition,

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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.” 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.”

In re Succession of Helms, 01-1357, pp. 2-3 (La.App. 3 Cir. 3/6/02), 810 So.2d

1265, 1267-68 (citations omitted).

All trusts “shall be governed by the laws in effect at the time of their

creation.” La.R.S. 9:2252 (1990). “A testamentary trust is created at the moment

of the settlor’s death.” La.R.S. 9:1821 (1990). Because James died in 1990, his

Trust is governed by the law in effect at that time. In 1990, the Louisiana Trust

Code directed that its provisions be liberally construed “in favor of freedom of

disposition” and in pari materia with the general provisions of our law, except

when a specific provision exempted application of the more general rule:

The provisions of this Code shall be accorded a
liberal construction in favor of freedom of disposition.
Whenever this Code is silent, resort shall be had to the
Civil Code or other laws, but neither the Civil Code nor
any other law shall be invoked to defeat a disposition
sanctioned expressly or impliedly by this Code.

La.R.S. 9:1724 (1990).

The pivotal issue in this case is the proper interpretation of the

provisions of the testamentary trust regarding the distribution of property upon the

death of one of the income beneficiaries. To resolve this issue, we must determine

the meaning of the term “legal heir” as that term was understood under the law in

effect in 1990 so to ascertain the intent of the settlor, which is paramount.

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Turning now to the provisions of the testament, it is not disputed that

both Jimmy and Keffer were the named income beneficiaries. No one contests that

the “proportionate part” of the property attributable to Keffer’s root was to be

distributed upon his death to his legal heirs. The dispute in the present matter

arises over the proper interpretation of that term in light of the fact that Keffer died

testate.

In rendering its decision, the trial court focused upon Keffer’s

testamentary intent. However, the property was transferred to the trustee by James.

As the settlor, it is James’s testamentary intent that ultimately controls the

disposition of his property. As contemplated by the Trust Code, James explicitly

provided that the respective interests of both his income beneficiaries would

terminate upon their deaths. Therefore, upon his death, Keffer’s interest in the

Trust terminated, both by law and testament. In this manner, Keffer had no

inheritable interest in the Trust to bequeath. And his naming Brent as his universal

legatee is of no moment to the determination of the issue herein because the

property was never part of Keffer’s patrimony or his succession.

Rather, James directed the trustee to distribute the property

attributable to Keffer’s root to Keffer’s “legal heirs.” At the time of the Trust’s

creation, the Civil Code defined the term “legal heir” as one “who is called by law

to the inheritance.” La.Civ.Code art. 940 (1990). Moreover, caselaw had long

held, in accordance with our civilian tradition, that “legal heirs” are “heirs of the

blood.” Succession of Justus, 44 La.Ann. 721, 723, 11 So. 95, 95 (1892).

Jurisprudence further acknowledged the distinction, codified in our Civil Code

since its inception, between testamentary heirs or legatees and legal heirs or heirs

of the blood based upon the nature of successions:

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According to our Civil Code, there are three sorts
of successions: (1) The testamentary succession, or that
which results from the institution of an heir contained in
a testament executed by the deceased; (2) the legal
succession, or that which the law has established in favor
of the nearest relation of the deceased, and (3) the
irregular succession, or that which is established in favor
of certain persons, or of the State in default of heirs either
legal or instituted by testament. Arts. 875, 876, 877, 878.

The kinds of heirs that correspond to these three
species of successions are described in Article 879 as:
(1) Testamentary or instituted heirs; (2) legal heirs or
heirs of the blood, and (3) irregular heirs.

Succession of Wesley, 224 La. 182, 188-89, 69 So.2d 8, 10-11 (1953).

Through the revision of our Civil Code in 1981, the legislature, under

the recommendation of the Louisiana Law Institute, amended the law to recognize

only two types of successions: (1) the testate succession that “results from the will

of the deceased,” La.Civ.Code art. 874 (1990); and (2) the intestate succession that

“results from provisions of law in favor of certain persons,” La.Civ.Code art. 875

(1990). Under the revision, only two corresponding types of successors were

recognized: “Testate successors, also called legatees. Intestate successors, also

called heirs.” La.Civ.Code art. 876 (1990).

With this understanding of the relevant law, it is clear that the term

“legal heir” was, in 1990, a codified, as well as jurisprudentially recognized,

reference to heirs of the blood and of the nearest relation to the deceased that were

called by our law to inherit. Accordingly, we find that, at the time of the Trust’s

creation, the term “legal heir” was a term of art or legal shorthand, generally

understood as referring to the class of successors “called by law” because of their

kinship resulting from a blood relationship to a decedent. We further find that,

through his use of this term, the settlor clearly intended for his property to be

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distributed to those persons called by law to inherit the property attributable to his

sons’ proportionate roots, i.e., their heirs of the blood of nearest relation.

Under the law in effect in 1990,

If the deceased leaves no descendants but is
survived by a father, mother, or both, and by a brother or
sister, or both, or descendants from them, the brothers
and sisters or their descendants succeed to the separate
property of the deceased subject to a usufruct in favor of
the surviving parent or parents.

La.Civ.Code art. 891 (1990). Pursuant to this provision, Keffer’s legal heirs, as

would have been contemplated by the settlor at the time of the Trust’s creation,

were, in fact and law, his brother and his mother. At the time of his death and the

transfer of interest, Keffer’s legal heirs were still, under the current law, his brother

and his mother. La.Civ.Code art. 891.2

Moreover, we note that to interpret the term “legal heir” in the manner

in which the trial court did would effectuate a power of appointment prohibited

under the law in 1990. Specifically, allowing Keffer’s testamentary disposition to

control would run afoul of the provisions of La.Civ.Code art. 1573 (1990), which

provided, in pertinent part:

The custom of willing by testament, by the
intervention of a commissary or attorney in fact, is
abolished.

Thus the institution of heir and all other
testamentary dispositions committed to the choice of a
third person are null, even should that choice have been
limited to a certain number of persons designated by the
testator.

Under the trial court’s interpretation, the settlor would have effectively granted to

Keffer, a third party, the choice as to the disposition of the settlor’s property. As

2
Louisiana Civil Code Article 891 was amended in 2004; but the amendment did not
affect a change in the law on this particular issue, and the quoted language was retained verbatim.

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such, the testamentary trust provision would have been contra bonos mores and,

thus, not enforceable under either the Trust Code or the Civil Code. See La.R.S.

9:1736; La.Civ.Code art. 1573.

Because the transfer of trust interest at issue herein clearly comports

with the intent of the settlor, as well as the law, we find the trial court legally erred

in nullifying the transfer.3 Accordingly, we reverse the trial court’s judgment in its

entirety.

V.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court.

Costs of this appeal are assessed to the Plaintiff/Appellee, the

succession representative of the Succession of Keffer Thomas Delino, II.

REVERSED.

3
This holding renders all remaining assignments of error moot.

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