Succession of Paul Van Thornton

NOT FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-219

SUCCESSION OF PAUL VAN THORNTON

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, DOCKET NO. 59,497
HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.

AFFIRMED.

Kevin Thornton
Pro Se
10 Green Meadow Circle
Valley Mills, TX 76689
(254) 315-3809
IN PROPER PERSON-APPELLANT:
Kevin Thornton

Adam M. Sullivan
730 San Antonio Ave.
Many, LA 71449
(318) 256-0076
COUNSEL FOR DEFENDANTS-APPELLEES
Randal Brasher and Nancy Brasher

COOKS, Judge.

On August 23, 2004, Paul Van Thornton, who was legally domiciled and

residing in Sabine Parish, Louisiana, died in Houston, Texas. There was a

olographic will, dated February 14, 2004, which consisted of two sentences, reading

as follows:

I, Paul Van Thornton, leave all of my property and all other things that
I own to my wife, Jane Scott Thornton. And iff [sic] the state law says
my estate should be divided, I would have a usufruct to all my property
be given to my wife, Jane Scott Thornton, as long as she lives.

The Succession of Paul Van Thornton was judicially opened on December 5, 2006

and a Judgment of Possession was rendered on December 11, 2006, placing Jane

Scott Thornton into possession of seventy-five percent (75%) of Paul’s immovable

property in Louisiana and a boat. Placed into possession of twenty-five percent

(25%) of the same was Kevin Thornton, who was the son of Paul Van Thornton,

born out of wedlock. Neither the Detailed Descriptive List nor the Judgment of

Possession included any immovable property other than Louisiana immovable

property.

Several years after Paul died, Jane passed away. She died intestate and was

survived by her only children, Randal Brasher and Nancy Brasher, each of whom

are adopted. Subsequent to the Judgment of Possession in her Succession, it was

discovered that Paul Van Thornton owned, at the time of his death, an undivided

interest in a tract of immovable property located in Texas. The property has since

been sold, but the parties involved, Kevin Thornton and Randal Brasher and Nancy

Brasher, have been unable to agree on the distribution of the proceeds of the sale of

that property.

On January 31, 2017, in the Eleventh District Court in Louisiana, Kevin

Thornton filed a “Rule to Show Cause Why This Succession Should Not Be

Reopened Under La. C.C.P. Art. 3393 to Interpret the Last Will and Testament of

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Paul Van Thornton and Order.” At issue are the proceeds from the sale of the

aforementioned tract of property in Texas. Upon joint motion of the parties, the

proceeds of the sale, in the amount of $214,322.52, were deposited into the court

registry.

In his Rule, Kevin prayed for judgment recognizing himself as owner of all

the proceeds. He argued that Paul intended to bequeath all his estate to him and/or

that as a forced heir, he is entitled to recover, at a minimum, some portion of the

proceeds.

On March 7, 2017, Defendants, Randal and Nancy Brasher, filed peremptory

Exceptions of Prescription and Res Judicata, as well as a dilatory Exception of

Unauthorized Use of Summary Proceedings. All exceptions were denied.

On September 25, 2017, a trial on the merits was held. The trial court rendered

judgment denying Kevin’s Rule, and ordering that the proceeds of the sale of the

Texas property be distributed in accordance with the original December 11, 2006

Judgment of Possession (which provided for seventy-five percent (75%) to go to

Randal and Nancy and twenty-five percent (25%) to go to Kevin).

Kevin, who is representing himself, has filed a suspensive appeal from that

judgment, asserting several assignments of error:

A. The trial court was manifestly erroneous or clearly wrong by
interpreting the Will of Paul Van Thornton to have bequeathed a
legacy of full ownership of his entire estate rather than a usufruct
legacy of all of Paul’s property in favor of Jane Thornton. [“I would
have a usufruct to all of my Property be given to my wife Jane Scott
Thornton as long as she lives.”] This part of Paul’s Will was ignored
by the Trial Court defeating Paul’s intentions almost entirely, but
without comment by the Trial Court.

B. The Trial Court abused its discretion by ignoring terms of the Will
of Paul Van Thornton in combination with the legal effect of the
forced heirship “State law” of Louisiana which compelled a division
of his estate and the bequeathing of the usufruct legacy in favor of
Jane Thornton.

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C. The Trial Court abused its discretion by ignoring the terminating
effect of Jane Thornton’s death upon the usufruct legacy bequeathed
to her by the Will of Paul Van Thornton.

D. The Trial Court’s finding was an abuse of discretion when it
attributed a property ownership transfer from the estate [of] the
testator to the estate of [the] usufructuary, rather than to the estate
of the naked owner, as the correct legal effect of the termination of
a usufruct.

E. The Trial Court’s finding was an abuse of discretion when it ruled
that ownership of some or all of the funds currently being held in
the registry of the 11th Judicial District Court and constituting the
remaining estate of Paul Van Thornton may be transferred to Jane
Thornton, the usufructuary of the entire estate of Paul Van Thornton,
rather than to the naked owner of the entire estate of Paul Van
Thornton, Kevin Thornton.

F. The Trial Court’s finding was an abuse of discretion when and if it
ruled that the Will of Paul Van Thornton created a legacy that
transferred the ownership of any property to Jane Thornton in light
of the division of Paul’s estate due to Louisiana State law of forced
heirship.

Randal and Nancy answered the appeal and seek a modification of the judgment to

award the Estate of Jane Scott Thornton all the proceeds of the property sale which

were deposited into the court registry.

ANALYSIS

Kevin essentially makes two arguments in his brief. First, he argues that Paul

intended to bequeath the naked ownership of his entire estate to him, subject to a

lifetime usufruct in favor of his wife, Jane Scott Thornton. He asserts the olographic

will left by Paul “was written in confusing fashion, and it neglected to mention

anything about his 19 year-old son, Kevin.”

Louisiana Civil Code Article 1611(A) discusses the interpretation of

testaments and states:

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 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.

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While the will drafted by Paul is certainly brief, there is nothing to support

Kevin’s claim that it is confusing. The first sentence in the will states, “I, Paul Van

Thornton, leave all of my property and all other things that I own to my wife, Jane

Scott Thornton.” That language clearly and unambiguously provides that all his

property is to be left to his wife. He then goes on to state, that “iff [sic] state law

says that my estate must be divided, I would have a usufruct to all my property be

given to my wife, Jane Scott Thornton, as long as she lives.” This indicates an intent

to not leave any other person any portion of his estate other than what the law

requires him to do. Further, in the event, the law requires him to provide some

portion of his estate to another, then he intended to burden that forced portion with

a usufruct in favor of his wife. That is expressly permitted in our law under

La.Civ.Code arts. 1496 and 1499.

Admittedly, the will in question is not artfully drafted. However, the law is

clear that the testator’s intent controls the interpretation of his testament.

La.Civ.Code art. 1611(A). A testament “should be interpreted in a sense in which it

can have effect, rather than in one in which it can have none.” La.Civ.Code art.

1612. “The law is indulgent with documents written without the aid of counsel and

obeys the testator’s clear intention however informally conveyed.” Succession of

Achee, 16-716, p. 8 (La.App. 1 Cir. 8/16/17), 229 So.3d 5, 12 (citing In re Succession

of White, 06-1002 (La. App. 1 Cir. 5/4/07), 961 So.2d 439, 441).

We find the trial court did not err in finding Paul intended to leave his wife,

Jane, the entirety of his estate, less the minimum required by state law; and that the

minimum required by state law would then be burdened by a usufruct. Contrary to

Kevin’s argument, the second sentence of his will contemplating the potential

necessity that state law might require he leave some portion of his estate to a forced

heir, does not negate the clear intent of the first sentence where Paul clearly states

his intent to leave his wife full ownership of his estate.

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In his second argument, Kevin maintains the trial court erred in not awarding

him the entirety of the proceeds of the sale of the Texas immovable property that

was deposited in the registry of the Louisiana district court. Randal and Nancy

answered the appeal, asserting the trial court erred in not awarding them the entirety

of the proceeds. They maintain a domiciliary of Texas (which they argue Kevin is)

cannot assert a claim of forced heirship over real property situated in Texas when

the deceased died domiciled in Louisiana.

Louisiana Civil Code article 3534 is the applicable law for dealing with

successions involving immovable property located in another state. It provides:

Except as otherwise provided in this Title, testate and intestate
succession to immovables situated in another state is governed by the
law that would be applied by the courts of that state.

If the deceased died domiciled in this state and left at least one
forced heir who at the time was domiciled in this state, the value of
those immovables shall be included in calculating the disposable
portion and in satisfying the legitime.

Pursuant to the first paragraph of La.Civ.Code art. 3534, Texas law would normally

govern the succession to the property in question. As Randal and Nancy point out,

Texas does not have forced heirship laws, and has not since 1856.

Thus, Kevin’s only claim to his forced heir portion of the proceeds of the sale

of the property rests on whether he can fall under the second paragraph of article

3534. That provision requires him to establish he was domiciled in Louisiana at the

time of Paul’s death. The trial court did not produce any written reasons, nor were

any oral reasons given, for its ruling that Kevin was to receive his forced heir portion

(twenty-five percent) of the proceeds. Thus, we are unclear as to the reasoning

behind that ruling.

Under La.Civ.Code art. 3534, the trial court’s ruling would require a finding

that Kevin was domiciled in Louisiana at the time of Paul’s death. We will assume

that the trial court, thus, found Kevin was domiciled in Louisiana at the time of

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Paul’s death. A review of the record shows the evidence was conflicting on this

point. Kevin testified at both the preliminary hearing and at trial that he was born in

Texas, thereby establishing his original domicile. Kevin did testify he was living

with Paul at his home in Louisiana in the period of time preceding Paul’s death. That

testimony was corroborated by others at trial. Paul testified when he was around

eighteen (Kevin was nineteen when Paul died) he moved in with Paul at his home in

Many, Louisiana. Kevin did testify he never registered to vote in Louisiana, nor did

he obtain a Louisiana driver’s license.

This court in Smith v. Goins, 08-938, p. 2 (La.App. 3 Cir. 7/30/08), 994 So.2d

591, 594, stated “[d]omicile is defined as the principal establishment where one

habitually resides, with a corresponding intent to remain. La.Civ.Code art. 38;

Russell v. Goldsby, 00-2595 (La.9/22/00), 780 So.2d 1048.” We cannot say the trial

court erred in finding, at the time of Paul’s death, Kevin was domiciled in Louisiana.

He had been living with Paul in Louisiana for approximately one year at the time of

Paul’s death. This seemingly would constitute the principal establishment where he

habitually resided, and we cannot say it was unreasonable to conclude Kevin had a

corresponding intent to remain prior to Paul’s death. Therefore, we will affirm the

trial court’s judgment ordering the proceeds of the Texas property be distributed in

accordance with the original December 11, 2006 Judgment of Possession.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of this appeal are assessed equally between the parties.

AFFIRMED.

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