*1 1037 1038 1 So.2d
Lenus A. GIROIR et al.
Frank A. DUMESNIL et al.
No. 47711.
Feb. 1966.
Rehearing Denied March *2 1Q42 Lofaso, Houma,
Gerald F. for absent heir. Darsey, Houma, A. appellee.
Elton SANDERS, Justice. brought
Mr. Mrs. Lеnus A. Giroir declaratory judgment action to be rec- ognized as owners of certain land vir- tue of an act of sale from Marie Boudreaux alleged leg- universal Benjamin atee of Dumesnil. Defendants are the collateral heirs Dumesnil. exceptions prema-
Defendants filed turity, nonjoinder necessary party, of a improper Assigning action. written rea- *3 sons, the exceptions. court overruled these Thereafter, defendants an filed answer and damаges. reconventional demand for The plea judicata answer included a of res and judicial estoppel. an Defendants also filed exception year prescrip- and five ten tions. trial,
After
the district court sustained
plea
judicata
defendants’
res
and de-
plaintiffs
only
clared
had
a usufruct of
property.
upon
The court did
rule
ap-
exception
prescription.
Plaintiffs
pealed.
Court of
amended
and,
amended,
judgment
it.
affirmed
defеndants,
Lagrange,
As
Mildred
Lagrange,
Lagrange,
and
Numae
Pauline
asserting a
in the
one-half interest
O’Neal, Houma,
appel-
Lagrange,
A.
for
Deutsche
as heirs of Dolzie
the court main-
af-
exception
judicata
lant.
and
tained
res
judgment.
of the true and sin-
firmed the district court’s
As to
“In consideration
defendants,
friendship
good
remaining
re-
cere
and the
and con-
court
jected
which, up
time,
plaintiffs
care
to this
has
the demand of the
on the
tinuous
recognized
by my
merits and
defendants’ owner-
been bestowed
me
wife
ship.
granted
See
tiorari to
of the Court
review the
Appeal.
wife,
“Legal vicinity, personally ap- domiciled 18, 1940, On March the testator died peаred Mr. widow, súrvived Marie Boudreaux Dumesnil, of the also relatives, and collateral consist- that, Parish, being ing predeceased said who declared of six children of a brother mind, body and convinced Lagrange, only sound and Dolzie child of a life, frailty desires predeceased human surviving sister. *4 worldly af- day presented 25, probate May to set order the will for on by 1940, our in the event he is called fairs the matter entitled “Succession of disposi- Creator, Dumesnil,” Benjamin and tо make his last Probate No. 2313 of testament, which he dictated to tions or the Seventeenth District for Court Judicial ap- I transcribed exact- and which have .Parish Terrebonne. The me court pointed ly literally attorney, Butler, Jr., and as dictated. an Robert B. represent Lagrange, to Dolzie an tax. The court absentee. inheritance deferred dis- position separate property. The court notified and of the all heirs time place probate. аssigned deferred matter was duly probated. attempt was
The will An inven- trial on March was 1947. No tory of the aid estate was made and filed. made to introduce extrinsic to evidence inventory Construing in the reflected the estate consisted construction of the will. community property. of both separate language and of the will without the bene- evidence, The two tracts of land in this fit of con- involved extrinsic the court litigation separate property. were only listed cluded that the testator left a lifetime judg- usufruct and the widow rendered Although the court ordered that letters September ment on as follows: testamentary execu- issue to the widow as “upon taking prescribed by ORDERED, trix the oath “IT IS ADJUDGED law,” the record opposition does not reflect that she AND DECREED : That the took the qualified Lagrange ever oath and as execu- of Dolzie is and the same however, Subsequently, Septem- trix. hereby on accordingly maintained and 5, 1940, widоw, by surviving petition, ber recognized as an heir at law of de- accepted legacy prayed cedent, and to be rec- Dumesnil, and as such ognized legatee as universal and sent into declared to be the owner of an undivid- possession separate of all property, (V2) and ed separate one-half of all of the community, left by decedent, Benjamin decedent. left death, par- at his and more hoc, representing The curator ad Dolzie ticularly separate property fully opposition peti- Lagrange, filed an to this described in the inventories filed here- other tion. The heirs were not cited in, subject but enjoyment to the appearance. opposition, made no In his usufruct of Mrs. Marie Boudreaux Lagrange Dolzie contended Dumesnil, during her life.” merely bequeathed the widow life usufruct consequently he in- not appealed decedent’s estate was plea herited an onе-half interest basis of the undivided defendants’ res judicata separate estate, subject disposition here. No usufruct. further was made separate of decedent’s estate in opponent that Mrs. Dumes- conceded proceeding. succession nil was entitled to full of all community property joined April 18, 1957, in a motion On Mrs. Marie Boudreaux put possession conveyed disputed property which was Dumesnil community Arceneaux, property upon paymеnt of the Mrs. Nellie Marie wife
X047 X048 recently Linus Giroir. The act of sale was record- Quinette As we said February day, Delhommer, ed on 1958. The same purchaser brought support judicata her husband this to res the code article re quires property identity parties action be an to declared owners of the the suits. trial, plaintiffs present parties under the At the in- The deed. defendants were not to previous evidence, subject troduced pro extrinsic de- demand in tо the succession Hence, objection, purporting ceeding. fendants’ to show the one of the ele essential decedent, by will, judicata lacking. his all ments of res Though intended to leave interposed property perfect plea the defendants to his widow in owner- also a ship. judicial estoppel, we find no basis for plea. proceed, this We as did the Court In application their for writs and in Appeal, consider to the merits. brief, plaintiffs submit tо the disposition property of the necessari- of the sustaining Court the ex- ly depends upon given the effect to the last ception judicata in of res favor of the de- will and testament of the decedent. fendants, Lagrange, Mildred Numae La- grange, Lagrange, and Pauline asserting an unambigu- Defendants assert will property undivided one-half interest in the ous, bequeaths only a lifetime usufruct to We, as Lagrange. heirs of Dolzie there- widow, leaving the naked un- fore, holding. omit a reexamination of this disposed, for inheritance the defend- deceased; legal ants as the heirs of the that Appeal properly The Court of over- words, with, testamentary “for her do to exception ruled the judicata of res toas enjoy dispose pleases, of as she and as the remaining defendants. usufruct; her,” a to refer to Article 2286 of the Louisiana Civil Code and that extrinsic evidence cannot con- be provides: sidered. authоrity thing
“The adjudged of the hand, plaintiffs On the other contend the place only respect takes bequeaths with to what will to the widow all decedent’s object judgment. property was the of the perfect ownership; that same; thing words, with, enjoy demanded must be the crucial her do “for the demand must be founded on the and as a action; her,” thing “property,” same cause belonging the demand must refer to will; parties, that preceding between the same and form- noun in the next against bequeaths ed them each other in the the will first the wife the usufruct quality.” (or property same of the dur- use fruits) span; ing bequeaths give her life that it then effect which would to all the terms disposition right of the testament.” thing her; belonging agree holding. We do clearly bequeaths wife all therefore to the *6 it, As we view the construction perfect If, however, of ownership. elements plaintiff tendered the the does not strike the cannot will on its court so construe the term, “usufruct,” from the will. Perfect face, ambiguous it and the extrinsic evi- ownership use, enjoy, gives right to to abundantly dence lan- shows the testator’s dispose and property to of to the exclusion guage bequeathed property means all his of others. LSA-C.C. Such Art. 491. in ownership. to the widow full of consists three united elements person: usus, right to the same or the The Court of held the will was use; fruits; fructus, or right to the unambiguous only bequeathed and a usu- abusus, and right dispose or the to of. See widow, fruсt to the rejecting the extrinsic Co., Wilson La.App., v. Aetna Ins. So. evidence. The court said: testamentary 650. Plaintiffs construe the ap- “After full all consideration of word, “usufruct,” a and combination of usus plicable interpretation, rules of we are fructus, embracing the first these two of impelled only to the con- view that the elements, the use and fruits. give struction which all will effect to Moreover, a number of leap reasons
the terms of that decedent’s will is em- plaintiffs’ why mind face-construction ployed by below, our esteemed brother plausible of the will is no less than of that namely, bequest conveyed that the tes- defendants. only. The tator’s widow a usufruct ambiguity language by appellants produces relied of the will two impressions. First, admit dominant of extrinsic evidence of testator’s the tenor only phrase of promoting intent arises if the ‘to do will is one the welfare with, enjoy dispose increasing as she her inheritance Seсond, pleases rights. scope one and as a to her’ of the will is property. modify including ‘property’ is deemed to all The testator used the word great by repetitive To than the term care to indicate this rather ‘usufruct’. literally property, adopt interpretation language: this “all of the is to movable immovable,” “of which I can write the word ‘usufruct’ out tes- law,” any under tator’s will and anomalous “under title what- achieves the parol making ad- of his estate consisted result evidence soever.” bulk community, rejecting interpretation his this interest missible share perusal A present case. dence in the eight thousand dollars béing over valued 'the dis- compared only court found inventory, six decision disclosés the the 1940 properly dis- puted unambiguous and separate property. codicil for- dollars- his hundred deci- regarded the extrinsic evidence. testator intended There doubt the is no authority rejecting extrinsic sion is for community in- property his will to cover am- construction of evidence to aid true, then it would terest. If this is biguous wills. bequeath highly extraordinary him to only the share his wife usufruct agree with defendants We community property, when without only testamentary dispositions made can be would have inherited 1576; Art. Succes writing. LSA-C.C. ownership. Article in full See LSA-C.C. Shows, sion agree Rusha, supra. also We Succession disposition are wide- words of crucial ambiguity ex that when a will is free separated ly “enjoyment usufruct” intеntion of the testator’s trinsic evidence “property” very close- in the will and follow not to be rejected. are must be “Candles only ly, “property” separated from being brightly.” lighted the sun shines when
by other modifiers
same noun.
of the
815,
Maginnis,
104
158La.
So.
Succession of
726;
Rusha, supra; Theall
Succession of
power
testamentary grant
the
A
of
Theall,
226.
7 La.
surplusage, since
a usufruct
is
to alienate
authority
by Article
already granted
that
is
however,
of
When,
language
a
the
555, LSA-C.C.
had to all
ambiguous,
will is
must be
resort
ownership-words
To
the
may
construe
crucial
aid in ascertain
circumstances which
“enjoyment
referring
as
to
and usufruct”
Art.
ing the
LSA-C.C.
testator’s intention.
sequence,
language
creates a bizarre
tele-
63,
1715;
Smart,
36
of
214 La.
Succession
scoped
bequeath
"enjoy-
as follows: I
the
211
639;
Montegut,
of
So.2d
Succession
* *
*
ment an'd
her to do
“for
Kirsch,
112,
110.
usufruct”
La.
Miller v.
with,
enjoy, and
of as she
259,
La.
ours.) “When, made use the terms аmbiguous. the will is We conclude by testator, be can not his intention mainly ascertained, to all rely recourse must had defendants Succes- 74, 515, may Rusha, aid in the dis- sion So. circumstances which 103 ours.) covery (Italics evi- of his intention.” requiring rejection as extrinsic 1053 Smart, supra, long marriage Succession of Court Dumesnil had a
In
which
they
succinctly
:(cid:127)
children,
stated the rule
follows
reared two foster
without
adoption.
formal
Insofar as the record dis-
*
* *
ambiguity
“Where there
closes,
marriage
happy one,
their
was a
description
legatee,
or the
strong ties of
love
affection.
thing which the
intended to
testatrix
quantum portion
bequeath, or
or
appeared
The decedent and his wife
be-
legatee,
or
is doubt as
where there
Notary Public,
fore the same
not an at-
are
to the sense
which the words
torney,
reciprocal
to make
wills. The two
by
testatrix,
may
used
resort
be had
phrased
wills were
language
in identical
fact, all cir-
to extrinsic evidence.
In
subscribed
the same
witnesses.
light
throwing any
cumstances
on the
wife understood that her own will left all
testatrix’s intention must be considered.
property
and,
to her
similarly,
husband
Code,
Revised Civil
Articles
her husband’s
all
will left
his
Montegut,
and 1716. Succession
her. The surviving witness testified he
La.
do
lawyer’s
pro-
is not a
docu-
from the widow.
The will
LSA-R.S. 47:2413
struction.
layman,
legatee
hibits
product
disposing
of a
deal-
a
It is the
of inherited
ment.
property prior
payment
legal
terms.
ing
refinement
of inheritance
without
understood,
statutory
taxes.
penalty only
at-
But the
without
de-
language must be so
prives
legal
legatee
right
of renounc-
niceties
tending so much to the
ing
personally
and makes him
grammar.
Suc-
liable for in-
or
See
semantics
rules
heritance
A
taxes.
Elliott,
violation of the statute
237 La.
cession of
does not
344;
Price,
property
vitiate a
transfer оr divest
Succession of
Vatter,
transferees of
rights.
their
Succession
We con-
So.2d
exception
clude that the
prematurity
basic action
the appropriate
determines
exception
nonjoinder sug
of
prescription.
McLavy
See
v. American
Dumesnil,
gests
testamentary-
that Mrs.
Legion Housing Corporation,
300,
227 La.
executrix,
necessary
plaintiff.
party
is a
We as did the district Generes Bowie Lumber Co., 143 exception La. 79 nonjoinder So. lacks merit. assigned, judgment For the reasons exception prescrip Defendants’ Appeal the Court part is affirmed in year period tion is based on the five fixed рart. and reversed in by asserting LSA-C.C. Article 3542 judgment Appeal of the Court of nullity acts, of a testament or other and the maintaining exception judicata res year period prescribed by ten LSA-C.C. defendants, in favor of the Mildred La- personal Article 3544 for all actions for grange, Lagrange, Numae and Pauline La- specific provision which no is otherwise grange, against plaintiffs, Mr. made. The district court failed rule Giroir, Mrs. Lenus A. is affirmed. exception. pre find neither We sсription applicable. declaratory judg judgment the Court of merely procedural ment statute creates a is render- otherwise reversed and whereby may plaintiffs, device courts make dec ed in favor of Mr. and Mrs. Giroir, executory rights against laration or A. the defend- without Lenus Dumesnil, ants, Dumesnil, Frank Leo An- coercive relief embodied a conventional Perera, Anthony judgment. City gelique Or Dumes- Stoddard v. of New Dumesnil leans, nil, Hebert, 165 The action La. So.2d 9. Elizabeth Dumesnil Jeanette petitioner Caballero, seeks Hen- identical whether the a Dumesnil Edwina Dumesnil ry, Hebert, declaratory judgment greater declaring or relief and Eunice Dumesnil Louisiana, Assumption, un- Parish be the owners of an plaintiffs to by the East fork of following de- bounded interest north divided one-half Bayou L’Ourse, by swamp East lands property under the act of sale scribed Drews, lands of Ben- of Gus South Wm. Marie Boudreaux 18, 1957, filed M. Ells West lands of Xavier jamin Dumesnil, April dated *10 Giroir, Landry 6,1958, and Oleus Foret February No. 18060 Nichols as for record on and of being Re- the W. N.W. and of the Clerk of Court the office 1/2 1/4 E., S., 65, Section R. 14 con- Parish, T. of Terrebonne to-wit: corder taining (80) eighty acres. land situated the “A tract of certain being “It same as was ac- the Louisiana, Terrebonne, at a Parish of quired by Benjamin Dumesnil the said miles (14) about fourteen distance of by Baptiste inheritance from Jean Houma, City measuring a from the Dumesnil, by judgment the 23rd Ju- less, arpents, (3) front of three more or Court, bearing No. dicial District descending the on the left bank of October, day on the 11th rendered depth survey; Bayou by Black the District 1917 the 23rd Court Judicial by property of bounded above Mary, in and Parish of and for the St. by prop- and Heirs of Atcheson below duly day of recorded on the 16th Octo- Hatch; erty of G. of the Estate W. ber, Assumption Parish 1917in the im- together buildings all the and 56, page C.B. 516.” provements thereon. Judgment fixing further rendered property acquired by
“Being the same attorney representing the fee of absent (a) Dumesnil follows: One-hundred, defendants in the sum of arpent one front thereof act exe- Fifty ($150.00) taxing Dollars and 7, 1883, cuted December and of record same as costs. ‘HH’, (b) at folio and in C.B. arpents Judgment assessing front two thereof is further rendered against Heirs Admar Bonvillain acts exe- one-half of the costs of court above, respectively July Au- cuted on 14 and last named one-half defendants 3, 1894, gust plaintiffs. and of in C.B. against record ‘OO’, at re- folios 733 and HAWTHORNE, (dissenting). Justice spectively. I am reasoning accord with An undivided one-third of: judges conclusion of the district Appeal lying tract of the Court the contested “That certain land provision Bayou L’Ourse,' bequeath- being in the Dumesnil’s will situated on of Mr. ed to his wife a usufruct rather than the terms of the testament regarded cannot be ownership property. fee con- This legatee. universal wording clusion is reached from Article 1712 of the Civil governs Code will and without resort to extrinsic evi- cаse; applied. it should be I do not think that the court should dence. disregard and write out respectfully I dissent. “enjoyment
words during and usufruct clause, with, enjoy
life”. The last “to do of as she and as a (which to her” seems to trouble),
have caused most of the would completely unnecessary
have been if the given.
fee
being
were
quoted approval by Ap- the Court of PEARLE OPTICAL OF ALEX- ANDRIA, INC., et al. peal 99). (see page 172 So.2d at No. 47915. my opinion, neither am-
In biguous bequest nor is its testator’s to the Feb. 1966. contradictory majority opin- wife as the Rehearing Denied March distinctly apparently be- ion conceives. It queaths enjoyment usufruct to the wife not
during property; it does her life of all Hence,
bequeath property”. the de- “all
scriptive disposition language following the bequest,
concerning wife’s use of the with, enjoy
viz —-“for her to do belonging thing
of as she and as thing given plainly
to her” refers to life”) “during her
(usufruct of the wife, property itself as the to the
according proper signification of to the