Virgie Mae Bertrand Trahan, Individually and as Administratrix of the Succession of Olivia Bellard Bertrand v. Alfred Louis Bertrand, Sr.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

NO. 06-1271

VIRGIE MAE BERTRAND TRAHAN,
INDIVIDUALLY AND AS ADMINISTRATRIX
OF THE SUCCESSION OF OLIVIA BELLARD
BERTRAND

VERSUS

ALFRED LOUIS BERTRAND, SR.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-477-05
HONORABLE CHARLES QUIENALTY, DISTRICT JUDGE, AD HOC

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GLENN B. GREMILLION
JUDGE

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Court composed of Glenn B. Gremillion, Michael G. Sullivan, and James T.
Genovese, Judges.

WRIT DENIED.

James B. Doyle
P. O. Box 5241
Lake Charles, LA 70606-5241
(337) 474-9989
Counsel for Plaintiff/Respondent:
Virgie Mae Bertrand Trahan
Succession of Olivia Bellard Bertrand

Michael E. Roach
P. O. Box 1747
Lake Charles, LA 70602
(337) 436-2900
Counsel for Plaintiff/Respondent:
Virgie Mae Bertrand Trahan
Succession of Olivia BellardBertrand

Tim Cassidy
Cassidy & Gunnell
P.O. Box 1446
Jennings, LA 70546
(337) 824-7322
Counsel for Defendant/Applicant:
Alfred Louis Bertrand, Sr.

GREMILLION, Judge.

The plaintiff, Virgie Mae Bertrand Trahan, and the defendant, Alfred

Louis Bertrand, Sr., both seek supervisory writs on the trial court’s judgment granting

in part and denying in part a peremptory exception of no right of action in favor of

Alfred and the denial of his peremptory exception of prescription. For the foregoing

reasons, we deny the writs.

FACTS

Ira Bertrand and Olivia Bellard Bertrand were the parents of Virgie and

Alfred. On September 24, 1992 and September 30, 1992, Ira and Olivia executed

inter vivos donations of immovable property in favor of Alfred. Ira passed away on

October 25, 1992. Olivia passed away on September 2, 2000, after which Virgie was

appointed administratrix of her estate. On July 11, 2005, Virgie filed a Petition to

Declare Donations Null and Void seeking to have the 1992 donations to Alfred

declared null and void as donations omnium bonorum, pursuant to La.Civ.Code art.

1489. She filed the petition individually as an heir and as administratrix of her

mother’s estate. In her petition, she alleged that the two donations divested her

parents of all of their real estate and its accompanying income leaving them in

necessitous circumstances. Thus, she alleged that the property or its value should be

returned to her parents’ estates and that Alfred was indebted to the estates for all

proceeds generated from the property.

In response to the petition, Alfred filed an answer and peremptory

exceptions of no right of action and prescription. Following a hearing on the

exceptions, the trial court rendered judgment sustaining the exception of no right of

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action as to Virgie’s standing to file the petition in her capacity as administratrix of

her mother’s estate and in her individual capacity as a forced heir to her mother.

However, it denied the exception as to her capacity as a forced heir of her father.

Finally, it denied the exception of prescription finding that a cause of action based on

a donation omnium bonorum was imprescriptible. Virgie and Alfred both sought

supervisory writs from this judgment.

ISSUES

In his writ application, Alfred questions whether Virgie has a right of

action to challenge the donations made to him by his father, pursuant to La.Civ.Code

art. 1498, and whether her claim has prescribed pursuant to the civil code articles

pertaining to reduction of an excessive donation. Virgie, on the other hand, questions

whether she has the right, as an heir of her mother, to seek the nullity of a donation

omnium bonorum following the abolition of forced heirship pursuant to La.Civ.Code

art. 1493. She further asks whether she has a right to seek the nullity of the donations

in her capacity as administratrix of her mother’s estate, and to sue for the loss of

income to the estate occurring during the lifetime of the donor.

DONATION OMNIUM BONORUM

The cause of action known as a donation omnium bonorum is found in

Article 1498 of the Louisiana Civil Code, which provides:

The donation inter vivos shall in no case divest the donor of all his
property; he must reserve to himself enough for subsistence. If he does
not do so, a donation of a movable is null for the whole, and a donation
of an immovable is null for the whole unless the donee has alienated the
immovable by onerous title, in which case the donation of such
immovable shall not be declared null on the ground that the donor did
not reserve to himself enough for his subsistence, but the donee is bound
to return the value that the immovable had at the time that the donee

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received it. If the donee has created a real right by onerous title in the
immovable given to him, or such right has been created by operation of
law since the donee received the immovable, the donation is null for the
whole and the donor may claim the immovable in the hands of the
donee, but the property remains subject to the real right that has been
created. In such a case, the donee and his successors by gratuitous title
are accountable for the resulting diminution of the value of the property.

Although there is not an abundance of jurisprudence, the following

findings are evident from our review of the law pertaining to donations omnium

bonorum. First, the right to attack such a donation may only be brought by the donor,

during his/her lifetime, or by their forced heirs. Maxwell v. Maxwell, 180 La. 35, 156

So. 166 (La.1934); Haynes v. Haynes, 02-535 (La.App. 1 Cir. 5/9/03), 848 So.2d 35;

Owen v. Owen, 325 So.2d 283 (La.App. 2 Cir. 1975), reversed on other grounds, 336

So.2d 782 (La.1976); Succession of Moran v. Moran, 25 So.2d 302 (La.App. 1 Cir.

1946).

Second, a donation omnium bonorum is absolutely null and, as such, is

imprescriptible. Broussard v. Doucet, 236 La. 217, 107 So.2d 448 (La.1958);

Abshire v. Levine, 546 So.2d 642 (La.App. 3 Cir. 1989); Owen, 325 So.2d 283;

Givens v. Givens, 273 So.2d 863 (La.App. 2 Cir.), writ denied, 275 So.2d 868 (1973).

Louisiana Civil Code Article 7 provides, “Persons may not by their juridical acts

derogate from laws enacted for the protection of the public interest. Any act in

derogation of such laws is an absolute nullity.” It is well settled that the public policy

behind this statute is to prevent a donor from divesting him/herself of all of their

property such that they become a ward of the state.

Based on the foregoing, we find that the trial court correctly granted the

peremptory exception of no right of action with regard to Virgie’s standing to bring

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this suit in her capacity as the administratrix of Olivia’s estate. Further, based on the

forced heirship laws in effect at the time of Olivia’s death, the trial court correctly

held that Virgie had no standing to bring this action as a forced heir of Olivia, but did

have standing as a forced heir of Ira. The forced heirship laws, as amended in 1996,

provided that only a child, twenty-three years old or younger at the time of his/her

parent’s death, qualified as a forced heir. The record suggests that Virgie was in her

sixties in 1992; thus, she would have been well past the age limit for forced heirship

when Olivia died in 2000.

Alfred argues that Virgie’s claim in her capacity as a forced heir of Ira

is prescribed as her claim is simply an action to reduce an excessive donation

impinging on her legitime. He cites La.Civ.Code arts. 1503 and 1504. Louisiana

Civil Code Article 1503 states, “A donation, inter vivos or mortis causa, that

impinges upon the legitime of a forced heir is not null but merely reducible to the

extent necessary to eliminate the impingement.” Louisiana Civil Code Article 1504

provides:

An action to reduce excessive donations may be brought only
after the death of the donor, and then only by a forced heir, the heirs or
legatees of a forced heir, or an assignee of any of them who has an
express conventional assignment, made after the death of the decedent,
of the right to bring the action.

He further cites La.Civ.Code art. 3497, which allows an heir five years in which to

bring an action to reduce an excessive donation.

Alfred cites several cases and the Louisiana Civil Law Treatise in

support of his argument. The treatise states that “[f]orced heirs have been permitted

to challenge such donations after the donor’s death, yet only to the extent of their

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legitimes.” Frederick William Swaim, Jr., and Kathryn Venturatos Lorio, 10

Louisiana Civil Law Treatise, Succession and Donations, § 11.11, p. 290 (1995)

(citing Succession of Turgeau, 130 La. 650, 58 So. 497 (1912)). The authors then

posed the following question:

An interesting question remains as to the time forced heirs have to
challenge such a donation. Is it five years as with any reduction, or is
the action not subject to prescription because a donation omnium
bonorum is absolutely null? If the action is to be treated as a reduction,
limiting the forced heirs to their legitime, then perhaps the prescriptive
period for reduction should control.

Id.

We disagree that the five-year liberative prescriptive period applies in

this instance. Virgie’s cause of action is based on alleged prohibited donations

omnium bonorum, in which Olivia and Ira divested themselves of so much of their

property that they could no longer support themselves. We agree with the trial court

that once a donation is an absolutely nullity, it cannot somehow become legitimate

again. As stated in Pardon v. Moore, 39,949, pp. 10-11 (La.App. 2 Cir. 8/17/05),

908 So.2d 1253, 1259 (citing Gram Realty Co. v. Northern Homes, Inc., 308 So.2d

502 (La.App. 1 Cir. 1975)), “The prescription of five years cannot cure a defect in a

tax sale which is absolutely null and void as no peremptive or prescriptive period can

breathe life into something that never existed.” If the donations by Ira and Olivia are

found to be donations omnium bonorum, then they are prohibitive donations which

are absolutely null and void and considered as never having existed. Thus, we find

no merit in Alfred’s argument that just because the action is brought by Virgie, the

donations are revived so that Article 3497 prevents her from pursing her cause of

action. Rather, we agree with the second circuit that Article 3497 does not act in such

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a way that the five-year prescriptive period found therein cures the defective

donations and then acts to deprive her of her cause of action. Accordingly, we find

that the trial court correctly held that Virgie’s right to bring this suit, in her capacity

as a forced heir of Ira, is imprescriptible.

CONCLUSION

For the foregoing reasons, the writ filed by Alfred Louis Bertrand, Sr.,

on the peremptory exceptions of no right of action and prescription is denied. We

further deny the writ filed by Virgie Mae Bertrand Trahan. The costs of these writs

are assessed equally to the parties.

WRIT DENIED.

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