Lead Opinion
This аppeal arises from the opposition of three particular legatees in this succession to the payment of their proportionate share of the succession dеbts.
The decedent, Myrtle F. Moffat, died on March 10, 1986, without heirs but left a statutory will naming Norman Dietrich as
During the course of the administration, at the request of the legatees, and after filing a Descriptive List of Assets and both Inheritance Tax and Federal Estate Tax Returns, a Petition for Partiаl Placing in Possession was filed. Accordingly, all of the legatees were placed in possession of their legacies, including the appellants. In due course a Petition for Homologation of the Final Account and a Tableau of Distribution was filed, advertised, served on the legatees and judgment rendered without opposition. It is from this final judgment which lists the three appellants as debtors to the succession for their proportionate share of the expenses of administration that they now appeal.
Appellants first contend that the phrase “аll cash money and money on deposit in my banking accounts” designate Norman Dietrich, the recipient, a legatee under universal title and the words “the remainder of my movable property to Dr. Francis Hymel”, designates him a universal legatee. They argue that a legatee under universal title and a universal legatee should bear the debts of the estate and that their particular legacies should not be reduced by the cost of administration.
The classification of legacies are found in the pertinent articles of the Louisiana Civil Code. A universal legаcy is a testamentary disposition by which the testator gives to one or more the whole of the property he leaves at his decease. C.C. art. 1606. A legacy under universal title is that by which а testator bequeaths a certain portion of the effects, as a half, a third or all of his immovables or movables or a fixed proportion of his immovables or movables. C.C. art. 1612. Every lеgacy not included in the definition of a universal legacy and a legacy under universal title is a particular legacy. C.C. art. 1625. ■
When there appears to be ambiguity in a will, courts must look to thе intent of the testator and recourse may be had to all circumstances which may aid in the discovery of his intention. C.C. arts. 1712, 1715; Succession of Bannon,
From a reading of the instant will, as a whole, it is abundantly clear that the tеstator desired to dispose of her entire estate by leaving particular items to particular individuals. She first left “all cash money and money on deposit in my banking accounts to Norman Diеtrich.” Immediately thereafter, she made a request that “Norman to use such money to care for my three dogs and board them in a veterinary hospital for the remainder of the life of the dogs.” Such a request does not contemplate the disposal of a proportion of her effects which would give rise to a legacy under universal title but is in fact a particular legacy which also bears the cost of caring for the deceased’s pets.
We now turn to that portion of the will which leaves “all of the remainder of my movable property to Dr. Francis Hy-mel.” Although the words “all of the remainder” has been held at times to designate a universal legacy
The remainder of decedent’s estate consisted of over one hundred and sixty separate pieces of jеwelry, an inoperable automobile, a piano, a hospital bed and miscellaneous household contents. Ms. Moffat did not specifically name Dr. Hymel as her universal or residuary legatee. As was stated in Maguire v. Maguire,
Because the testator did not contemplate and make provisions for the payment of the expenses of her estate and since we find that all legatees in her will are particular legatees, they all bear the burden of the expenses of the administration to their proportionate share. C.C. art. 1430. We therefore affirm that portion of the judgment casting each legatee liable for thеir proportionate share of the expenses.
Appellants also complain that they cannot be east in judgment without being properly cited under the appropriate provisions of the Louisiana Code of Civil Procedure and that the trial court committed manifest error in failing to receive competent evidence for the calculation of charges for the fees of the executor and attorney.
We note that although the final account was properly advertised and the appellants notified of these exрenses, not only by proper service of the final account under C.C.P. art. 3335, but also by copies of the estate tax return which they received and acknowledged, they raised no opposition in the trial court.
Ordinarily, an account which is ho-mologated according to law after due publication is final and an heir or legatee who fails to oppose such аccount is precluded from attacking the validity or amount of the executor’s or attorney’s fee absent a showing of fraud, misfeasance or waste. Succession of Marcour,
Strict compliance with this article is necessary since a judgment homоlogating an account constitutes res judicata as to the claims appearing thereon. Succession ofSpyker,
We pretermit, to the district court for its determination, the issue of the excessivеness of the executor’s and attorney’s fees.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED.
SCHOTT, C.J., dissenting in part with reasons.
Notes
. See 3 La.L.Rev. 212 for a discussion of the legacy under universal title.
. Succession of Burnside,
Dissenting Opinion
dissenting in part:
In this case the executor had advertised and served upon appellants a petition to homologate his “final account and tableau of distribution.” Included therein was his claim against appellants for over $6,000.
The function of a tableau of distribution is to notify creditors and others interested in the succession that the succession representative proposes to pay charges and debts and to obtain court approval to make such payments. C.C.P. art. 3303. The function of a final account is to show the court and all interested parties what funds have been collected and how they have been disbursed. Art. 3333. Homolоgation of the final account clears the way for the
A claim against someone by the succession representative has no place in a tableau of distribution or final aсcount. If someone owes money to the succession and refuses to pay, the representative’s remedy is to sue the person in an ordinary action and seek a money judgment. In thе present case, because the succession representative failed to have service of process on appellants the trial court never acquired personal jurisdiction over appellants for'assertion of the claim.
I am inclined to disagree with my colleagues’ conclusion that Dr. Francis Hymel is not a residuary legatee in the will, but I would not аddress this issue on this appeal. I respectfully submit that correct procedure would be for the trial court to decide the issue first and for the appellate court to review that dеcision. In this case the issue was buried in the homologation of the account and was never thoroughly argued to and considered by the trial court.
Consequently, I would simply annul the judgment on appeal and remand the case for proper and complete proceedings in the trial court.