Succession of Cladie J. Wade

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

20-589

SUCCESSION OF CLADIE J. WADE

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 40,223
HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of John D. Saunders, John E. Conery, D. Kent Savoie, Candyce G.
Perret, and Jonathan W. Perry, Judges.

Savoie, J., concurs in part with reasons.

Perret, J., dissents in part with reasons.

REVERSED.

C. Sherburne Sentell, Jr.
111 North Monroe Street
Post Office Box 875
Minden, Louisiana 71058-0875
(318) 377-0123
COUNSEL FOR:
Alma Rea Wade

Lewis O. Lauve, Jr.
Bussey & Lauve, LLC
3112 Jackson Street
Alexandria, Louisiana 71301
(318) 449-1937
COUNSEL FOR:
Carl Wade, individually and as
Administrator for the Estate of Cladie J. Wade

PERRY, Judge.

This appeal weighs a statutory will’s conditional legacies. The trial court

ruled the conditional legacies were valid and enforceable. For the reasons set forth

below, we reverse, finding the conditional legacies violate public policy.

FACTS

Cladie J. Wade (Cladie) died testate on May 8, 2011, while domiciled in

Rapides Parish, Louisiana. She effectuated a statutory will on August 13, 2007,

dividing most1 of her belongings between her only children, Alma Rea Wade (Alma)

and Carl Wade (Carl).2 The primary issue before this court concerns the following

conditional legacies contained in Cladie’s will:

With respect to the property in Oakland, California which was
owned by Theodore Harris and willed to me but placed in the name of
Alma Rea Wade’s name [sic] for accommodating purposes only, I will
and bequeath that this property be sold and after all obligations
incidental to the sale of the property have been paid, the remaining
portion is to be divided equally among CARL WADE, ALMA REA
WADE and CLADIE J. WADE.

....

If ALMA REA WADE does not sell the property in California
and divide the proceeds from the sale in the manner I have previously
suggested, I will and bequeath that all bequests I have made to Alma
Rea Wade would be revoked and all of those bequests would go to
CARL WADE. In other words, if she does not sell the property and
divide the assets as requested, she is not to receive any bequests from
me; Carl is to receive everything.

Alma and Carl both sought judicial determinations via motions for summary

judgment on the legality of Cladie’s conditional legacies. Alma chiefly argued the

condition on her legacy was contrary to the laws or to morals in violation of Article

1
Except for Cladie’s bequests of the usufruct of a house to Shirley Thibodeaux and $8,000
from a savings account to Noelle Foster, Cladie distributed household furnishings, her interests in
several immovable properties, and roughly $100,000 separately to either Alma or Carl.
2
Carl was named as executor in Cladie’s statutory will.

1519 of the Louisiana Civil Code.3 Additionally, she requested $4,771.09 for

expenses she allegedly paid maintaining rental properties owned by Cladie’s estate.

Carl argued the conditional legacies are valid and clearly indicated Cladie’s

intent—sell the California property and receive your portion of my estate or keep

the California property and receive nothing from my estate.4 He contended such an

optional bequest is not repugnant to the law or to good morals, and to not

acknowledge and enforce the conditional legacies is to give no effect to Cladie’s

intended and rightful disposition of her estate. See La.Civ.Code art. 1612.

Following a hearing, the trial court granted summary judgment in favor of

Carl, upholding the conditional legacies contained in Cladie’s will. In spite of this,

Alma was allowed forty-five days to decide whether she would keep the California

property or sell it and split the proceeds with Carl. If Alma satisfied the condition,

she would receive her legacies from Cladie; if not, Carl would receive Cladie’s

estate. Additionally, the trial court awarded Alma the reimbursement she requested

from Cladie’s estate.

3
In her motion for summary judgment, Alma also sought nullification of the following
provision contained in an “Addendum to the Last Will and Testament of Cladie J. Wade dated
August 13, 2007,” which Cladie effectuated on November 17, 2009:

The purpose for my adding this addendum is to resolve the dispute
involving the property that is located at 1501 Campbell Street, Oakland, California.
With respect to that property which is in the name of Theodore Harris of which I
am the owner, I will and bequeath that if that property is not sold prior to my death,
I want the property to be owned equally by my two children, namely: ALMA REA
WADE and CARL J. WADE. Further, if the property does not sell quickly or does
not sell for what my two children feel is a fair and just amount, I will and bequeath
that the property will continue to be rented and after all expenses are subtracted
from the monthly rental, the residue will be divided equally between my two
children, ALMA REA WADE and CARL J. WADE.

When the property in California is sold, then the proceeds will be divided
equally between my two children.
4
Responding to the purported addendum to Cladie’s will, Carl conceded, “Cladie did not
own the property in California and for that reason the addendum to the subject Will should be
reputed not written given the fact that it does contain an impossible condition, i.e., bequeathing
property that Cladie did not own. La.Civ.Code Art. 1519.”

2

On appeal, both Alma and Carl argue the trial court erred. Alma contends the

trial court legally erred in upholding conditional legacies she asserts violate public

policy by allowing, in effect, Cladie to bequeath property she did not own. Carl, in

his capacity as administrator of Cladie’s estate, suspensively appeals the trial court’s

reimbursement award in favor of Alma.

LAW AND DISCUSSION

On appeal, summary judgments are reviewed de novo. Magnon v. Collins,

98-2822 (La. 7/7/99), 739 So.2d 191. Thus, the appellate court asks the same

questions the trial court asks in determining whether summary judgment is

appropriate, i.e., whether any genuine issue of material fact exists, and whether the

mover is entitled to judgment as a matter of law. Id.; La.Code Civ.P. art. 966(A)(3).

Moreover, “[t]he summary judgment procedure is designed to secure the just,

speedy, and inexpensive determination of every action[.]” La.Code Civ.P. art.

966(A)(2).

Conditional Legacies

“Succession is the transmission of the estate of the deceased to his

successors.” La.Civ.Code art. 871. “The estate of a deceased means the property

. . . a person leaves after his death[.]” La.Civ.Code art. 872.

“A testator cannot bequeath that which is not owned, and any such legacy is

void to that extent.” Succession of Wagner, 431 So.2d 10, 12 (La.App. 4 Cir. 1983);

La.Civ.Code art. 1519. A donation inter vivos can have as its object only present

property of the donor. La.Civ.Code art. 1529.

Louisiana Civil Code Article 1519 provides: “In all dispositions inter vivos

and mortis causa, impossible conditions, those which are contrary to the laws or to

morals, are reputed not written.” Louisiana Civil Code Article 1612 directs us to

3

interpret a testament in a way that furthers, rather than frustrates, the testator’s lawful

intent.

Concerning Cladie’s conditional legacies, neither party asserts there are

disputed facts. The issue before us is purely a legal one—namely, whether the

conditional legacies herein are valid and enforceable.

Foremost of Alma’s arguments against the legality of the conditional legacies

is that conditions exist which are contrary to the laws or to good morals.

La.Civ.Code art. 1519. Alma argues Cladie’s conditional legacies sought to transmit

property which did not belong to her estate; thus, the conditions should be deemed

not written. Id.; Wagner, 431 So.2d 10.

Alma alleges Cladie resented Alma being the sole legatee of Theodore Harris,

from whom Alma inherited the California property, evidenced by Cladie’s directive

that Alma sell the California property and divide the sale proceeds three ways

between Alma, Carl, and Cladie. Alma urges this court to disallow conditional

legacies which seek to settle grievances with relatives or unfavorable wills by

requiring legatees to alienate their own property.

Carl concedes Cladie did not own the California property; however, he argues

whether or not Cladie had an ownership interest is inconsequential. Carl denies

Cladie was bequeathing property she did not own; instead, he insists Cladie was

simply giving Alma an option to comply with her request. He also admits Cladie

had no legal basis to force Alma to sell the California property or to force Alma to

divide the sale proceeds. Yet, in brief he states, “Alma presumably had refused to

do so at [Cladie’s] request and Cladie had likely been advised that she could not

legally force Alma to take such actions. This is precisely why Cladie made the

bequests to Alma conditioned on her taking those certain definitive actions

4

voluntarily.” Carl argues no effect would be given to Cladie’s intended and rightful

disposition of her estate if her conditional legacies were ruled invalid.

Carl additionally submits that the conditional legacies herein are analogous to

one assailed in Succession of Wagner, 431 So.2d 10, wherein the testator only owned

half of the lot in question because it was community property; the other half was

owned by his children, forced heirs. The conditional provision in Wagner, 431 So.2d

at 11, stated: “In the event that any of my children should object to the above and

foregoing disposition of that particular lot to Marie Amick, then I will and bequeath

to the said Marie Amick the disposable portion of my entire estate.” The forced

heirs argued the conditional provision should be considered a penalty clause and was

contra bonos mores, citing La.Civ.Code art. 1519 and Succession of Kern, 252 So.2d

507 (La.App. 4 Cir.), writ denied, 254 So.2d 462 (La.1971). The fourth circuit

viewed the conditional disposition of the disposable portion to be a conditional

donation, conditioned on the heirs not complying with the testator’s implied wishes

that they convey their half interest in the lot to Marie Amick in order to receive the

balance of the disposable portion. The court reasoned the testator’s children alone

had the capacity to comply with their father’s request, should they fail to comply,

the conditional disposition would be effective.

Carl insists Cladie, exactly like the testator in Wagner, 431 So.2d 10, “sought

to indirectly achieve a result that could not be achieved directly.” We disagree, and

we observe a significant difference Carl deems inconsequential. The particular lot

in question which was made the subject to the option the legatees could either accept

or reject was owned, albeit partly, by the testator in Wagner. In this case, the

California property did not belong to Cladie.

Noting the strong public policy of sustaining the validity of wills and giving

effect to the testator’s wishes when possible (Succession of LaBarre, 179 La. 45,

5

153 So. 15 (1934)), the fourth circuit in Wagner, 431 So.2d at 12-13 (footnote

omitted), explained:

The testator acknowledged that all of his property was community
which was the only reason for him to specify the alternate bequest.
That leaves no doubt Mr. Wagner was fully aware he could not
bequeath the particular lot in full ownership to Amick. He understood
the concurrence of his children was necessary in order to effect his
wishes.

The testator’s intention was amplified by the testimony of Emile
E. Martin, II, then an attorney who drafted the will. Judge Martin
testified that Mr. Wagner’s sole purpose for writing his will was to
give Amick full ownership of the property where her trailer was
located. Judge Martin advised Mr. Wagner that the “community”
aspect of the property would be a problem unless his children agreed
to transfer their interest to Mrs. Amick for her to acquire full
ownership. Judge Martin said Mr. Wagner then became “adamant,”
reported that he and his children were not on good terms, and stated if
they refused he wanted to leave Mrs. Amick his entire estate. Judge
Martin then explained the laws on forced heirship and the subject will
resulted containing the alternate legacy.

We are satisfied Mr. Wagner knew his bequest could not be
accomplished without his children’s cooperation. Foreseeing the
possibility they would not comply, he saw fit to include the alternative
provision.

Legitime imperanti parere necesse est—one lawfully
commanding must be obeyed. We cannot require Mr. Wagner’s
children to transfer their interest in the lot to Amick’s heir. They alone
have the capability to comply with their father’s request. Otherwise,
the alternative disposition is effective which we view as a conditional
donation and within the parameters of the law. [La.Civ.Code
art. 1528.5]

We consider the conditional legacies at issue illegal and void. We cannot

sanction allowing Cladie to accomplish after death that which she could not lawfully

do during her life. Further, we believe to rule otherwise would result in far-reaching

consequences of elevating a testator’s intent over the public interest of property

ownership.

5
Louisiana Civil Code Article 1528 provides: “The donor may impose on the donee any
charges or conditions he pleases, provided they contain nothing contrary to law or good morals.”

6

Addressing the public interest in non-alienability of property, the supreme

court in Succession of Feitel, 176 La. 543, 552, 146 So. 145, 147 (1933), invalidated

a provision against alienation or mortgaging for ten years, stating:

The law will not carry into effect the “wishes and conceits of the
dead” concerning the property they leave to another in full ownership,
to the disturbance of the rules of public order and policy which regulate
the living. Men instinctively desire to accumulate and own property.
When acquired they hold it tenaciously and abandon it with reluctance.
So great is their propensity to hold dominion over that which they have
acquired, what is theirs, that some of them, on the brink of the grave,
attempt to continue their control over it after they are dead. But under
our law and jurisprudence this cannot be done.

Since there were no forced heirs, Cladie could dispose of her property in any

way she saw fit. However, the conditional legacies herein evidence Cladie sought

to exert control over property not her own. To require Alma to alienate her property

and share the profits with Carl grants control over property which does not belong

to Cladie’s estate. Simply stated, Cladie’s testamentary rights cannot outweigh

Alma’s property ownership rights. We feel that to rule any other way would condone

the “wishes and conceits of the dead” at the expense of “the rules of public order and

policy which regulate the living.” Id. Thus, the trial court’s judgment upholding the

conditional legacies contained in Cladie’s will is reversed.

Alma’s Reimbursement

Concerning the reimbursement award in favor of Alma, Carl argues the trial

court’s monetary judgment rendered against Cladie’s estate is procedurally defective

and should be vacated. Carl contends Cladie’s estate is still under administration;

thus, Louisiana’s Code of Civil Procedure specifies the proper procedure for a

creditor of a succession to submit a claim for acknowledgment and payment of a

debt.6 However, Alma asserted her claim within the context of her motion for

6
While a succession is under administration, a creditor can submit his claim to the
succession representative, and no particular form is required other than it be in writing, except for
formal proof of claims under La.Code Civ.P. art. 3245. La.Code Civ.P. art. 3241.

7

summary judgment. The trial court, finding Carl had not formally opposed Alma’s

allegation, granted judgment in Alma’s favor.

Carl concedes a written demand for $4,767.09 was sent to him through

counsel; yet this demand was rejected based on the allegation Alma collected rental

payments from properties owned by Cladie’s estate, rental payments which should

have been received by Carl, as administrator of the estate. Carl, thus, submits

genuine issues of material fact exist with regard to the administration of the estate,

and it was premature to pay any creditor any amounts being claimed by creditors

against the estate until a tableau of distribution was prepared and submitted.

Alma alleges Carl acquiesced to her claim for reimbursement. She alleges he

neither raised any opposition in his answer to her motion for summary judgment,

nor did his counsel object to her claim at the hearing of this matter. Thus, the trial

court correctly granted summary judgment in her favor. We disagree.

Our review of the record reveals that at the hearing of this matter, counsel for

Carl noted that although a formal objection had not been expressed in his response

to Alma’s motion for summary judgment, Carl did, in fact, reject the reimbursement

claim. Carl alleged Alma received rental payments and contended summary

judgment was not procedurally proper to adjudicate questions of the estate’s debts.

Even in the absence of a formal opposition to a motion for summary judgment,

the moving party must show that he is entitled to summary judgment. La.Code

Civ.P. art. 966(D)(1). While Alma submitted an affidavit swearing that she paid

maintenance expenses on rental property owned by Cladie’s estate, our invalidation

of Cladie’s conditional legacies will presumably affect the distribution of Cladie’s

estate, including these rental properties. Thus, we conclude genuine issues of

material fact exist which, at this time, preclude Alma’s entitlement to judgment as a

8

matter of law on her reimbursement claim. Therefore, we vacate the trial court’s

grant of summary judgment in favor of Alma.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed in its

entirety. Costs of this appeal are assessed equally between the parties, Alma Rea

Wade and Carl Wade.7

REVERSED.

7
Our reversal of summary judgment in favor of Carl results in equal costs of this appeal
assessed to Carl individually, not in his capacity as administrator of Cladie’s estate.

9

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-589

SUCCESSION OF CLADIE J. WADE

SAVOIE, Judge, concurs in part with reasons:

I concur with the majority’s decision to reverse the trial court’s summary

judgment, which found that the conditional legacy in the original will was

enforceable, but for different reasons as discussed below. I further agree with the

decision to reverse the trial court’s summary judgment pertaining to Alma Wade’s

(“Alma’s”) reimbursement claim, as summary judgment is premature given the

remaining factual issues concerning disposition of the estate property.

In my opinion, the 2009 “addendum” revokes the disposition and related

purported conditional legacy concerning the California property contemplated by

the 2007 will, as the 2009 “addendum” is incompatible with the 2007 will to that

extent. La. Civ.Code. art. 1608. Unlike the 2007 will, the 2009 “addendum” does

not demand the sale of the California property and division of sale proceeds upon

Cladie Wade’s (“Cladie’s”) death; rather, it contemplates Alma’s and Carl Wade’s

joint ownership of the California property and gives them discretion to either sell the

property and equally divide the sale proceeds or rent the property and equally divide

the rental proceeds. Therefore, the 2007 will’s disposition of the California property

and the related conditional legacy were superseded by the 2009 “addendum” and are

no longer enforceable.

Even though the disposition of the California property contemplated by the

2009 “addendum” is ultimately unenforceable due to an impossibility (i.e. Cladie

did not actually own the California property, despite her statements otherwise in the

will and “addendum), we should not revert back to the 2007 will’s disposition of the

California property and related condition. Even if a document that contains a

revocation of a prior testament is ultimately unenforceable as a testament, it

nevertheless serves to revoke the prior testament. See In re Hendricks, 2008-1914

(La. App. 1 Cir. 9/23/09), 28 So.3d 1057, writ not considered, 2010-480 (La.

3/26/10), 29 So.3d 1256.

Because the 2009 “addendum” revokes the purported conditional legacy

stated in the 2007 will, the trial court’s summary judgment on the issue of the

purported conditional legacy should be reversed on these grounds. It is unnecessary

to consider the issue of whether the conditional legacy is an illegal violation of public

policy.

2

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-589

SUCCESSION OF CLADIE J. WADE

PERRET, Judge, dissents in part.

I agree with the majority that the trial court erred in rendering a summary

judgment on Alma Wade’s reimbursement issue. However, I respectfully dissent

from the majority’s ruling that the conditional legacies are illegal and void. Unlike

the majority opinion, I find that Louisiana statutory law and jurisprudence supports

the trial court’s conclusion that Cladie Wade had every right to impose conditions

on the legacy to her daughter, Alma, especially considering that they contained

nothing contrary to law or good morals.

Louisiana Civil Code Articles 1611 through 1616 govern the interpretation of

testaments. Louisiana Civil Code Article 1611(A) is particularly relevant to this

case, which states that “[t]he 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.” Additionally, the 1997 Revision Comment

to La.Civ.Code art. 1611(A) states that this article “emphasizes the strong rule, long

recognized in the jurisprudence, that the intent of the testator is the single most

important guideline in the interpretation of a testament.” Louisiana jurisprudence

has also consistently held that the “the intent of the testator is the paramount

consideration in determining the provisions of a will.” 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. See also In re Succession of Soileau, 05-655, p.

7 (La.App. 3 Cir. 12/30/05), 918 So.2d 563, 568; 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)

98-596 (La. 4/24/98); 717 So.2d 1172.

1

In this case, there were no forced heirs and Cladie could dispose of her

property in any way she desired. I find that the clauses in the will that create the

conditional legacies merely give Alma the option to either sell the California

property and divide the proceeds with Carl and receive her legacies or keep the

property in California and forfeit her legacies in favor of Carl. I find no merit to the

majority’s legal analysis that differentiates the Succession of Wagner, 431 So.2d 10,

(La.App. 4 Cir. 1983), case from the facts of this case on the mere fact that the

testator in Wagner owned one-half community interest in the land at issue. In my

opinion, it is irrelevant that the testator in Wagner owned one-half of the property –

he was still attempting to leave full ownership of a tract of land to Marie Amick,

who was not one of his children, even though he only owned a one-half community

interest in the land. I find that the Wagner case is on point and that in both cases,

the testators inserted a conditional legacy in the will that would give their heirs the

option of conveying their interest in the subject property or forfeiting their interest

in the disposable portion of the testator’s estate.

In Wagner, the court held that “the testator’s ‘intention 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. . . . [T]he court should select that interpretation which will carry out

the intention of the testator.’” Succession of Wagner, 431 So.2d at 12, (quoting

Succession of LaBarre, 153 So.15, 16 (La.1934)). By applying these legal principles

to the facts in Wagner, the court stated:

The entire will is dedicated to Marie Amick’s receiving a portion of
Wagner’s estate. If the specific bequest was the only provision in the
will[,] Amick would be entitled to only an undivided one-half interest
in the designated property because that was all Mr. Wagner owned. A
testator cannot bequeath that which is not owned and any such legacy
is void to that extent. LSA-C.C. Arts. 1519, 1639. Succession of
Marion, 163 La. 734, 112 So. 667 (1927). However, the will
convinces us that Mr. Wagner’s intent was to give Amick full
ownership of the lot, even though he knew he couldn’t.

2

....

It [the will] simply implements the alternative provision if the heirs do
not comply with the testator’s wishes. The alternative bequest will not
deprive the forced heirs of anything they are legally entitled to, i.e.,
their legitime. The forced heirs have no “right” to the disposable
portion; the testator has a right to bequeath the disposable portion in
any manner. Succession of Hyde, 292 So.2d 693 (La.1974). We find
the optional bequest is not repugnant to law or good morals and is valid
as a conditional legacy.

Succession of Wagner, 431 So.2d at 12-13, (footnote omitted) (emphasis added).

Thus, the court in Wagner held that the testator could not force his children to convey

their interest in the property to his legatee, but that he could certainly condition their

legacies on them doing so. Similarly, in this case, Alma was not obligated by law

to carry out her mother’s request to sell the California property and divide the

proceeds with her brother Carl but her refusal to do so forfeited her legacies in favor

of Carl.

For the foregoing reasons, I dissent from the majority ruling and would affirm

the trial court’s judgment that found “that the conditional legacies contained in the

Last Will and Testament of Cladie Wade are valid and enforceable[.]”

3