461 So. 2d 1070 | La. Ct. App. | 1984
The beneficiaries of wills and an act of adoption appeal from a judgment invalidating those instruments on the ground of mental incapacity of the testatrix-adopter at the times of their execution.
The question is whether opponents proved the mental incapacity. Their evidence, in the form of both medical expert and lay testimony, is abundant proof, if believed by the trier of fact, that decedent was incapacitated. From the medical point of view, long before the date of the first invalidated will, her brain was so incapacitated by reduction of its blood flow by advanced arteriosclerosis (after one major and other lesser strokes) that substantial improvement thereafter was a medical improbability. From the lay point of view, following the strokes, both before and especially after her husband’s death decedent was severely limited in her ability to understand events (such as her husband’s death or her having defecated upon herself) and to recognize persons including long-time friends. (Even proponents’ expert, who saw decedent the day of the second invalidated will and deemed her having that day defecated on herself before arriving at his office “physical impropriety [having] nothing to do with her mental condition,” also testified “Well, I’m surprised that she had an operable conversation and that she was mobile, or that she had desires she wished to express....”)
But some of the best proponents’ evidence is not very persuasive (such as that of her priest, that she knew him and her eyes lit up when he entered her room, and that he had no doubt of her “contact with reality”); and some is not thoroughly credible (such as that of the lawyer who drafted the first will, that she went to her husband’s' funeral and then to the will-writing ceremony: all other witnesses who testified on the point testified that she did not attend her husband’s funeral).
The entire record considered, we cannot conclude that the trial court was clearly wrong, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), in its conclusion that, in effect, opponents overcame the presumption of capacity by “clear and convincing evidence,” Succession of Lyons, 452 So.2d 1161, 1166 (La.1984), and proved that decedent lacked testamentary capacity on August 12 and 28, 1977 and April 18, 1978. The two wills and the act of adoption were therefore correctly declared invalid.
Opponents ask by answer to the appeal that the judgment be amended to name the “proponents” cast for the costs. One may agree that, if execution became necessary, a judgment casting “interve-nors” or “third-party defendant” or “proponents” for costs does not tell the sheriff whose property he should seize and sell (although one casting “plaintiff” or “defendant” might do so). But, similarly, a judgment for “costs” does not tell the sheriff the amount of the judgment and it therefore cannot be executed in any case until the costs are fixed. The rule to fix costs, C.C.P. 1920, is filed against persons by name and in that proceeding it will be established not only how much is owed but also the persons against whom the costs are fixed. Only after the judgment on the rule to fix costs can fi. fa. issue as required by C.C.P. 2291. Accordingly there is no necessity that this court amend the judgment to name the “intervenors” cast for costs.
Affirmed.