120 So. 289 | La. | 1929
Anthony Battistella died leaving a will by which he distributed his estate, named an executor, and designated plaintiff, an attorney at law, to settle his estate in Louisiana.
Plaintiff tendered his services to the widow and heirs, legatees under the will, and to the executor, but they declined his services, employed other attorneys, and settled the estate of the deceased without calling on plaintiff to render any services in connection therewith.
Plaintiff brings this suit against the said widow and heirs to recover from them the amount of the fees to which he would have been entitled had the provisions of the will *768 been carried out and himself been employed to settle the succession.
If such a designation be not binding on those who take under the will, then the reason must be because such designation is contrary to law or good morals, or in violation of some well-recognized public policy. For "the donor may impose on the donee any charges or conditions he pleases, provided they contain nothing contrary to law or good morals." R.C.C. 1527, 1519.
It is said that the fact that provisions of these two laws make it obligatory on banks to accept such designation and fails to make such designation binding on individuals is evidence that the Legislature never intended that such designation be binding on individuals. But that is non sequitur. The Act No. 45 of 1902 for the first time permitted banks to act in certain fiduciary capacities, and out of excess precaution provided, not only that such a designation by will should *769 be binding on the bank, appointed to such fiduciary capacity, but also that "the selection of an attorney by the surviving spouse, or heirs shall be binding upon such bank." The purpose of the statute is self-evident; it was intended to prevent banks, appointed to fiduciary capacities, from establishing a monopoly of the probate business of the state. The statute intended to make that clear; and there was, and could be, no intention in that statute to declare what might otherwise be the rights of a testator in designating an attorney to settle his estate. And the Act No. 107 of 1920 merely proceeded on the same track as that of 1902; for it would manifestly be absurd to hold that one who meant to establish a trust under said act could not attach thereto any conditions he saw fit, including the person to whom such trustees should go for advice, since the donor is given full authority to provide "the manner in which the property donated shall be administered."
But all these cases proceed upon the theory that the naming of an attorney may be distasteful or disadvantageous to the executor, and entirely overlook the fact that the testator may impose such conditions as he sees fit on his executor, and the latter is free to accept or decline the trust if not satisfied with the conditions imposed.
But, be that as it may, the law of this state is that within certain limits, not pertinent here, a testator (donor mortis causa) may impose such conditions on his gratuities as he sees fit. R.C.C. 1527, 1519; Succession of Serres,
O'NIELL, C.J., and OVERTON, J., dissent. *771