SUCCESSIONS

SUCCESSIONS

Modes of acquiring ownership (Art. 870)

1) by Succession (testate or intestate)

2) by the effect of obligations

3) by the operation of law

3 Ways to have right or choice to accept succession:

1) In own right (nearest degree in priming class)

2) Representation (predeceased)

3) Transmission (successor died before accepting/renouncing succession)

Cannot accept/renounce until succession comes into effect.

Succession opens at the moment of death.

Succession (Art. 871)

- the transmission of the estate of the deceased to his successors

- the successors thus have the right to take possession of the estate of the deceased after complying w/ applicable provisions of law

Comments

- successions is the process by which heirs and legatees succeed to the property of the deceased

- the property is transmitted immediately upon death to the proper successors, it follows that they have a right to possession after complying w/ appropriate procedural requirements

Estate (Art. 872)

- the property, rights, and obligations that a persons leaves after his death

(whether the property exceeds the charges or the charges exceed the property, or whether he has only left charges w/o any property)

- includes all rights & obligations of the deceased accrued thereto since death, and the new charges to which it becomes subject

2 Kinds of Successions (Art. 873)

1) Testate

2) Intestate

Testate (Art. 874)

- results from the will of the deceased, contained in a testament executed in a form prescribed by law

- valid last will & testament

Intestate (Art. 875)

- results from provisions of law in favor of certain persons, in default of testate successors

- w/o will or testament

- w/o valid will

- only disposed of part of property

“Successors”

- includes both heirs and legatees – broad term

General Rule

- those in the priming class and nearest degree take by heads (split equally)

- descendants are priming class – positive law = Art. 888 descendants take first

2 Kinds of Successors (Art. 876)

1) Legatees – testate successors

2) Heirs – intestate successors

Crawford v Puckett (1859)

- certain property had been given to “the heirs of William George”

- George was living at the time & had one minor child at the time

- subsequently – George sold the property to defendant

- Plaintiff on behalf of all the minor children of George sued defendant to recover the property

Court – although no one is heir to a living person – the gift was interpreted as made to the living minor child of George – therefore, the sale by George was invalid

2 classes of successors (Art. 877)

1) Unconditional successors

2) Beneficiary successors

Unconditional Successors (Art. 878)

- accept w/o any reservation, or without making an inventory – whether their acceptance be express or tacit

Beneficiary Successors (Art. 879)

- accept under the benefit of an inventory as provided by law

Intestate Succession (Art. 880)

- in the absence of a valid testamentary disposition

- the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated form him, in the order provided in and according to the following articles

Comments

- heirs succeed even when there is a valid testament to any portion of the property not disposed of by the testament – due to caducity of a legacy or simple omission, for example

- legitimacy is irrelevant – once a relationship is proven by blood or adoption the succession rights of such a relative are established

Rights of the State (Art. 902)

- in default of blood, adopted relations, or a spouse not judicially separated, the estate of the deceased belongs to the state

- state = entity which may take the property only in default of heirs

What happens if spouse renounces inheritance?

3 people (relations) killed in a wreck – do each succession separately

REPRESENTATION

- modifies basic rule – nearest degree in priming class takes

- policy exception – no policy reason to cut line out

- take predeceased’s place in law

- only in favor of descendants

- collaterals > descendants of predeceased siblings

Representation (Art. 881)

- the effect of which is to put the representative in the place, degree, and rights of the person represented

- a fiction of the law

Rights = rights imposed by laws of succession (right to accept / renounce / bring action)

Morgan – not other obligations imposed on predeceased

Representative can have greater rights than the predeceased

Ex. unworthiness > heirs can bring action against another heir

Destrehan – unworthiness of the predeceased would not prevent representative from stepping up and taking their share

Destrehan / Morgan – greater rights given to Representatives than person represented

Representation in direct line of descendants (Art. 882)

- representation takes place ad infinitum in the direct line of descendants

- it is permitted in all cases – whether the children of the deceased concur w/ the descendants of the predeceased child, or whether, all the children having died before him, the descendants of the children be in equal or unequal degrees of relationship to the deceased

- forced heirship – representation takes place only as provided in Art. 1493

Forced Heirs; representation of forced heirs (Art. 1493)

- forced heirs = descendants of the 1st degree – who, at the time of the death of the decedent, are 23 y.o. or younger or descendants of the 1st degree of any age who, b/c of mental incapacity or physical infirmity are permanently incapable of taking care of their persons or administering their estates at the time of death of the decedent

- descendant of the 1st degree predeceases the decedent, representation takes place for the purposes of forced heirship ONLY if the descendant of the 1st degree would have been 23 y.o. or younger at the time of the decedant’s death

Representation of Ascendants NOT permissible (Art. 883)

- Representation does NOT take place in favor of the ascendants

- the nearest relation in any degree always excluding those of a more remote degree

Representation in Collateral Line (Art. 884)

- representation is permitted in favor of the children and descendants of the brothers & sisters of the deceased

- whether they succeed in concurrence with their uncles and aunts or whether the brothers and sisters of the deceased having died their descendants succeed in equal or unequal degrees.

Basis of Partition in cases of representation (Art. 885)

- where representation is permitted

- partition is made by roots

- if one root has produced several branches, the subdivision is also made by roots in each branch, and the members of the same branch take by heads

- roots – limited by what person you’re representing would have received

Representation of deceased persons only (Art. 886)

- ONLY deceased persons may be represented

- must predecease decedent

Representation of decedent whose succession was renounced (Art. 887)

- one who has renounced his right to succeed to another may still enjoy the right of representation with respect to that other

- ex. can accept father’s estate & represent in grandfather’s estate

can renounce fathers estate & represent in grandfather’s estate

Ex. B renounces succession > A takes all

C cannot come in by own right nor by representation b/c B renounced (did not predecease) (transmission?)

A & B renounces

D/E/C > in priming class (in fact)

Since A & B removed themselves > D/E/C in nearest priming class

*take by heads b/c taking by own right

(D/E/C got more by A & B renouncing)

Depends on how they take.

Sound mind is not a capacity prerequisite – do not need sound mind to accept (accept w/ benefit of inventory)

Succession of Miss Morgan (1936 – pg. 11)

- intestate succession – the parties are all collaterals

- ½ brother predeceased – owed Miss Morgan $12,850

(if ½ brother had survived he would have had to offset the debt)

- 7 kids claiming they come in via representation therefore they do not have to pay the debt

- Art. 881 – representative in the place, degree, and rights of the person represented

- Positive law is giving contrary law

Issue – If the shares of the 7 kids in the succession must be reduced by the amount of debts due by their pre-deceased parent to Misses Morgan

Holding – Representatives are NOT accountable for predeceased’s debt – collateral relatives are not bound to collate either gifts or debts

Reasoning – Rep receives by designation of the law – he is not an accepting heir – he is endowed by the law w/ the rights of the latter in a certain succession – he is not rendered personally liable for the debts of the person whom he represents

What body of law would have been imposed on ½ brother to pay debt?

Law of obligation – obligated b/c he incurred the debt

(debts must be paid before distribute property of a succession)

**Law that imposes duty on ½ brother does not impose duty on 7 kids – they’re not the debtor – they did not receive the $

Collation – only applies to gifts – NOT debts

If money was a gift – not a debt > the 7 kids would have to throw 2/3 $ back into estate

SEPARATE PROPERTY, COMMUNITY PROPERTY AND THE 890 USUFRUCT pg. 19

La. C.C. 888-901

Distinction b/t community & separate property – different series of heirs

Community Property

- property earned during marriage during joint effort of spouses

- any property received during marriage that is not separate (fruits of separate property = c.p.)

Separate Property

- own before marriage

- property received during marriage - gratuitously

Separate Property: Arts. 888, 891-901

- provide for the devolution of the deceased’s separate property

- heirs include both legitimate & illegitimate (provided the requisite formalities have been satisfied) – formal acknowledgment or judgment of filiation

- 7 basic classes of heirs are established by the articles:

1) Descendants (888)

2) Brothers & Sisters take naked ownership & parent(s) take Usufruct (891)

3) Parent(s) in the absence of brothers and sisters (892)

4) Brothers and sisters in the absence of parent(s) (892)

5) Surviving Spouse (894)

6) More remote (than parents) ascendants (895)

7) More remote (than brothers and sisters) collaterals (896)

Note: representation takes place in the cases of descendants (1) and brothers & sisters (2&4)

Succession rights of descendants (Art. 888)

- descendants succeed to the property of their ascendants

- they take in equal portions and by heads if they are in the same degree

- they take by roots if all or some of them succeed by representation

Devolution of Separate Property; parents and brothers and sisters (Art. 891)

- if the deceased leaves NO descendants but is survived by a father, mother or both and by a brother or sister or both or descendants from them

- the brothers and sisters or their descendants have naked ownership - subject to a usufruct in favor of the surviving parent or parents

- if both parents survive the deceased the usufruct shall be joint and successive (held in indivision) - if one parent predeceases the other the entire usufruct accrues to the survivor (siblings still have n.o.)

- Parent = one who is legitimately filiated to the deceased or who is filiated by legitimation or by acknowledgment under Art. 203 or by judgment under Art. 209 or who has openly and notoriously treated the child as his own and has not refused to support him

Devolution of Separate Property in absence of parents or in absence of brothers and sisters (Art. 892)

- no descendants nor parents – his brothers or sisters or descendants from have full ownership to the exclusion of other ascendants and other collaterals

- no descendants nor brothers or sisters, nor descendants from them, his parent or parents have full ownership to the exclusion of other ascendants and other collaterals

Brothers and sisters related by half-blood (Art. 893)

- the property that devolves to the brothers or sisters is divided among them equally if they are all born of the same parents

- if they are born of different unions – it is equally divided b/t the paternal and maternal lines of the deceased: brothers or sisters fully related by blood take in both lines and those related by half-blood take each in his own line

- if there are brothers or sisters on one side only they take the entirety to the exclusion of all relations in the other line

- only applies to brothers and sisters inheriting from a brother or sister

Separate Property; Rights of Surviving Spouse (Art. 894)

- no descendants, nor parents, nor brothers, sisters, or descendants from them, his spouse not judicially separated from him shall succeed to his separate property to the exclusion of other ascendants and other collaterals

Separate Property; Rights of other Ascendants (Art. 895)

- if a deceased leaves neither descendants, nor brothers, sisters, or descendants from them, nor parents, nor spouse not judicially separated, his other ascendants succeed to his separate property

- if the ascendants in the paternal and maternal lines are in the same degree, the property is divided into 2 equal shares – whether the number of ascendants on each side be equal or not – in this case the ascendants in each line inherit by heads

- if there is in the nearest degree but one ascendant in the 2 lines – such ascendant excludes ascendants of a more remote degree

ex. if the deceased is survived by his maternal grandmother and his paternal great grandfather > the grandmother takes 100% - if the deceased is survived by his maternal grandmother and his paternal grandmother and grandfather > maternal g/m takes ½ - paternal g/m & g/f split ½

Separate Property; Rights of other Collaterals (Art. 896)

- if the deceased leaves neither descendants, nor brothers, sisters, or descendants from them, nor parents, nor spouse not judicially separated, nor other ascendants, his other collaterals succeed to his separate property

- among the collateral relations, the nearest in degree excludes all others

- if there are several in the same degree, they take equally and by heads

Trace Relationship at time of death.

Classify property as community or separate.

Ascendant’s right to inherit immovables donated to descendant (Art. 897)

- ascendants – to the exclusion of all others – inherit the immovables given by them to their children or their descendants of a more remote degree who died w/o posterity, when these objects are found in the succession

- if these objects have been alienated, and the price is yet due in whole or in part, the ascendants have the right to receive the price – they also succeed to the right of reversion on the happening of any event which the child or descendant may have inserted as a condition in his favor in dispensing of those objects

Reversion of property subject to encumbrances and succession debts (Art. 898)

- ascendants inheriting the things mentioned in the preceding article which they have given their children or descendants who dies w/o issue, take them subject to all the mortgages which the donee may have imposed on them during his life

- also ascendants exercising the right of reversion are bound to contribute to the payment of the debts of the succession, in proportion to the value of the objects given

Reversion

- right in favor of ascendants who have given immovables to their descendants

- only takes effect when the descendant has died w/o posterity upon death AND without having disposed of the property during life or by last will and testament at death

Nearest in degree among more remote relations (Art. 899)

- among the successors in each class the nearest relation to the deceased, according to the following articles is called to succeed

- nearest successor in priming class takes

- priming class depends on who survives decedent

Degrees of Relationship (Art. 900)

- the proprinquity of consanguinity (nearness of blood relationship) is established by the number of generations

- each generation is called a degree

- adopted children treated as blood relationship

Direct and Collateral Relationship (Art. 901)

- the series of degrees forms the line

- the direct line is the series of degrees b/t persons who descend one from another

- the collateral line is the series of degrees b/t persons who do not descend one from another but who descend from a common ancestor

- in the direct line the number of degrees is equal to the number of generations b/t the heir and the deceased

- in the collateral line the number of degrees is equal to the number of generations b/t the heir and the common ancestor, plus the number of generations between the common ancestor and the deceased

Community Property: Arts. 888-890

Devolution of Community Property (Art. 889)

- deceased leaves NO descendants – his surviving spouse succeeds to his share of the community property

Usufruct of Surviving Spouse (Art. 890)

- deceased is survived by descendants

- the surviving spouse shall have a usufruct over the decedent’s share of the community property to the extent that the decedent has not disposed of it by testament

- usufruct terminates when the surviving spouse dies or remarries

Comments

- Art. 890 – deals only w/ a usufruct of the surviving spouse that arises by virtue of intestacy

- Legal Usufruct – usufruct arises by operation of law

- does not require descendants to be children of surviving spouse

- illegitimate children receive n.o. just like legit children

- collision b/t rights of forced heir & rights of surviving spouse

Intestate = Art. 890

- s.s. gets usufruct over descendants portion of community property

- terminates on remarriage/death

Testate = Art. 1499

- s.s. gets usufruct over descendants portion of community or separate property

- can establish usufruct for life or shorter period

- decedent can dispose of everything but n.o. of legitime

When a testament executed leaves a usufruct to the surviving spouse w/o specifying its duration, the law in effect at the time the testament was executed shall govern the duration of the Usufruct.

Ways to increase rights of surviving spouse:

1) usufruct of surviving spouse

2) cut down rights of forced heir (Art. 1505)

Succession of Chauvin (1972)

- the testator left his entire estate to his son in naked ownership and to his wife in usufruct

- the entire estate consisted of community property

- all the requirements for a legal usufruct under Art. 916 of La. Civil Code of 1870 had been met

- in the absence of a provision granting to the surviving spouse a usufruct for life – the usufruct was NOT for life

Holding – the testator had confirmed by his will the operation of Art. 916 of the Civil Code and that the usufruct of the surviving spouse should terminate on remarriage

Chauvin was legislatively overruled by Art. 1499.

Usufruct to Surviving Spouse Art. 1499

- the decedent may grant a usufruct to the surviving spouse over all or part of his property, including the forced portion, and may grant the usufructuary the power to dispose of nonconsumables as provided in the law of usufruct.

- the usufruct shall be for life unless expressly designated for a shorter period

- a usufruct over the legitime in favor of the surviving spouse is a permissible burden that does NOT impinge upon the legitime, whether it affects community property or separate property, whether it is for life or a shorter period, whether or not the forced heir is a descendant of the surviving spouse and whether or not the usufructuary has the power to dispose of nonconsumables

- allows testator to grant a usufruct over separate property / community property / legitime

Cannot have burden of usufruct on legitime created by will.

If decedent does not want s.s. to have usufruct can provide for other arrangements through testament.

Security Art. 1514

- forced heir can request security form s.s.

- forced heir canNOT be child of the s.s.

- separate property – may request security if usufruct is over legitime – effects sep. property (even if s.s. is parent)

9:1426 Retirement Plan; usufruct of surviving spouse

- if a recurring payment is being made from a public or private pension or retirement plan

- to one partner or to both partners of a marriage

- AND the payment constitutes community property and one spouse dies

- the surviving spouse shall enjoy a legal usufruct over any portion of continuing recurring payment which was the deceased spouse’s share of their community property – provided the source of the benefit is due to payments made by or on behalf of the survivor

- usufruct shall exist despite any provision to the contrary contained in a testament of the deceased spouse

- legal usufruct

- not an impingement upon the legitime and a naked owner shall not have a right to demand security

Today – either legal or testamentary – confirmation makes testamentary legal?

FORCED HEIRSHIP

- concept – testator or de cujus (person w/o testament) has only limited power to dispose of his property

- old law – all of your descendants were forced heirs (concept of land pre-ownership – did not want estates to be broken up outside of family – land followed blood line)

- constitution of La. guarantees forced heirship – Art. XII, Section 5 – requires the legislature to enact legislation making all descendants of the first degree who are 23 y.o. or younger forced heirs

Forced Heirs; Representation of Forced Heirs (Art. 1493)

A. forced heirs are descendants of the first degree who, at the time of the death of the decedent, are:

- 23 y.o. or younger OR

- descendants of the 1st degree of any age who, b/c of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons OR administering their estates at the time of the death of the decedent

B. When a descendant of the 1st degree predeceases the decedent, representation takes place for purposes of forced heirship ONLY if the descendant of the 1st degree would have been 23 y.o. or younger at the time of the decedent’s death

C. However, when a descendant of the 1st degree predeceases the decedent, representation takes place in favor of any child of the descendant of the 1st degree, b/c of mental incapacity or physical infirmity, is permanently incapable of taking care of his or her person or administering his or her estate at the time of the decedent’s death, regardless of the age of the descendant of the 1st degree at the time of the decedent’s death

D. A person is 23 y.o. or younger until he attains the age of 24 years

Comments:

- forced heirship is NOT a bonus > guaranteed minimum

- exception – regardless of age =

ex. interdict

son paralyzed on ski trip > dad dies intestate

Problem – probate will (judgment of possession > distribute property) > person later cured (no longer permanently incapable of taking care of person) – prescription/judgment of possession problem

Representation (see notes 9/17)

Forced Heir Entitled to Legitime (Art. 1494)

- a forced heir may NOT be deprived of the portion of the decedent’s estate reserved to him by law, called the legitime

- UNLESS – the decedent has just cause to disinherit him

Comment:

- the legitime of a child is determined by dividing the forced portion by the number of qualified children living or represented at the death of the decedent

- when the descendants other than the child himself are involved, the legitime of these more remote descendants is determined by reference to the child they represent

- thus, when a predeceased child is represented by his descendants, the legitime of each descendant is determined by dividing the legitime of the child who is being represented among the descendants who represent him

Amount of Forced Portion and Disposable Portion (Art. 1495)

- donations inter vivos and mortis causa may NOT exceed ¾ of the property of the donor if he leaves, at his death one forced heir (1/2 if he leaves 2 or more forced heirs)

- the portion reserved for the forced heir is called the forced portion and the remainder is called the disposable portion

- NEVERTHELESS – if the fraction that would otherwise be used to calculate the legitime is greater than the fraction of the decedent’s estate to which the forced the heir would succeed by intestacy, then the legitime shall be calculated by using the fraction of an intestate successor

Comments:

- in certain instances the fraction to determine the share of the decedent’s estate that a child would inherit by intestacy would be less than the fraction used to calculate his legitime

ex. when a parent has 5 competent children, 4 are 24 y.o. +, one qualifies as a forced heir b/c he is 23 y.o. or younger – in such a case the percentage used to calculate the forced portion under Art. 1495 would be 25%, but the intestate share under 888 would be only 20%

- this article reduces the amount that the forced heir may recover but does NOT eliminate the right of the forced heir to calculate his legitime in accordance w/ the formula of Art. 1505 by adding in the value of inter vivos donations to calculate the portion – thus the forced heir may receive a greater share than the actual intestate share, which is 20% of the probate estate, but not as large a share as he otherwise would be entitled to claim, namely 25% of the result of the Art. 1505 calculation

Disposable Portion in Absence of Forced Heirs (Art. 1497)

- if there is no forced heir, donations inter vivos and mortis causa may be made tot he whole amount of the property of the donor, saving the reservation made hereafter

Comments:

- “the reservation made hereafter” – refers to the prohibition on donations omnium bonorum in Art. 1498

Calculation of disposable potion on mass of Succession (Art. 1505)

Paline v Heroman (1946 – pg. 21)

- decedent died intestate – survived by wife & 2 sons

- both sons renounced the succession > wife placed in possession

- wife > possession of entire estate (1/2 by own right & have by renunciation)

- wife died > survived by sons

- sons partitioned land

- Plaintiff (Emile’s son) entered into an agreement to sell his tract to defendant

- plaintiff filed suit for specific performance

- defendant purchaser argued the title was no good b/c plaintiff did not have perfect ownership

- Intervenor – Ms. Virginia (g/d) – 1 of 5 children of plaintiff’s brother (Paul) > claimed she owned 1/10 interest in the property b/c the sons renounced the succession goes to those in the next degree & therefore she & her sisters * brothers being all the grandchildren of the deceased are those in the next degree and inherit in their own right

Issue – whether the husband’s portion of the community property after the renunciation of his children passed to the surviving spouse in the community or to the 5 children of the renouncing heir.

Holding – went to surviving spouse b/c she is the heir in the next rank or degree

Reasoning – the portion of renouncing heirs goes to those in the next degree

Law – if an heir renounces the succession he is considered as never having received it, and it follows that the rights of other heirs become the same as if the renouncing heir had never been an heir – nor can the grandchildren inherit by representation the portion renounced b/c there can be no representation of a living person

Art. 96 – Putative Marriage

- an absolutely null marriage nevertheless produces civil effects in favor of a party who contracted it in good faith for as long as that party remains in good faith

- when the cause of the nullity is one’s party’s prior undisolved marriage, the civil effects continue in favor of the other party, regardless of whether the later remains in good faith, until the marriage is pronounced null or the latter party contracts a valid marriage

Prince v Hopson (1956 – pg. 30)

- plaintiff – brought action seeking to be declared the owner of land purchased by her while she was living together w/ Brough as husband and wife

- facts giving rise to litigation – Brough married Victoria (W1 – defendant) – Brough filed for divorce on the ground of 7 yrs. Separation – final judgment was never rendered – plaintiff (W2) relying upon the statement of Brough that he was divorced from his 1st wife married Brough (marriage license & ceremony) – plaintiff did not discover Brough was never divorced until after his death & until she tried to borrow money on the property in question

- conceded by all parties that plaintiff contracted marriage in good faith – no evidence that Brough was in bad faith

- concluded – plaintiff and Brough were in good faith at the time their marriage was contracted – therefore, even though the marriage was a nullity it produced civil effects – the existence of a community of acquets and gains b/t them is such a civil effect

Issue – classification of property acquired during the coexistence of both the first & second marriage or during the existence of the putative community?

Holding – Although the property in the instant case was purchased in the name of the plaintiff (W2) it fell into the putative community – when Brough died ½ of this property belonged to his succession – he was survived by 1 child (Hopson) who therefore inherited his share of the community property

Issue – How should the remaining ½ be divided b/t the legal wife and the putative wife?

Holding – the legal wife & the putative wife are each entitled to an undivided ¼ interest in the property in question

Reasoning – the legal wife is entitled to ½ of property acquired during the putative marriage since her marriage was in existence at the time and the community was not dissolved until the husband’s death – the putative wife b/c of her g/f is also entitled to the same ½ of the property (the putative spouse has no claim to any portion of the property acquired during the legal marriage)

Patterson v City of Philadelphia

- legal wife has right to ½

- putative spouse recovered under a tort theory – b/f decedent owed debt to putative wife for harm

- each spouse took ½

- problem – child left out of equation

Adverse Disposition

- testator may defeat the legal usufruct simply by stating his intention that his share of the community property inherited by issue of the marriage shall not be subject to it

- absent such an adverse testamentary disposition the surviving spouse inherits by operation of law, a usufruct of the state to the extent permitted by the Code

Succesion of Moore

Holding – the surviving spouse is entitled to the article 916 usufruct unless a testamentary disposition is adverse to the legal usufruct

Winsberg v Winsberg (1957 – pg. 52)

- husband died testate > all property = community property

- left all of his property to wife

- survived by 2 daughters & 2 sons

- no mention of a usufruct in the will

- Action for Reduction = action for forced heirs

- wife = surviving spouse – owner of undivided ½

- 4 children – sole heirs > each had 1/12

- legacy to the widow > reduced to disposable 1/3

- business continued by son Winford – assisted by sister & mom

- son Hermon transferred his 1/12 to Winford

- Hermon married plaintiff > had child > Hermon died

- Suit is for an accounting of the estate of Jacob Winberg (Hermon’s father) – alleged Hermon never received his proportionate share – that the property passed in full ownership

Issue – whether or not the community real estate inherited by Hermon is subject to usufruct in favor of mom? YES

Holding – J.W. did NOT in any manner dispose by testamentary disposition adversely to the usufruct created by law in favor of his surviving wife – in fact, he intended that she should have even more than the law allowed

Reasoning – a bequest to one’s spouse of more than the law allows is not an adverse disposition that defeats the legal ususfruct

can deprive spouse of usufruct by disposing of property

Forstall v Forstall ?

- surviving spouse gets disposable portion in will

- have choice > renounce legacy & take usufruct OR forget usufruct and take legacy (disposable portion)

- *can’t have both

- testate – take out of operation of article

Holding – a spouse in community can legally bequeath to the survivor the disposable portion of his or her estate, as it always was known, and may confirm in his or her favor, the usufruct provided by law, either by remaining silent or by expressing himself clearly on the subject, the language used, whether a bequest or a ratification, being immaterial

Reasoning – if surviving spouse gets full ownership of disposable portion heirs may never see that portion And surviving spouse gets usufruct over legitime heirs have to wait to enjoy and for perfect ownership of property

Difference b/t giving away of disposable property to others beside s.s. & trying to give s.s. more than allowed by law – shows intent of decedent > allows court to determine if there should be a usufruct over legitime

Succession of Chauvin (1972 – pg. 54)

- the testator left his entire estate to his son in naked ownership and to his wife in usufruct

- the entire estate consisted of community property – no mention of usufruct for life

- all the requirements for a legal usufruct under Art. 916 of La. Civil Code of 1870 had been met

- in the absence of a provision granting to the surviving spouse a usufruct for life – the usufruct was NOT for life

Holding – the testator had confirmed by his will the operation of Art. 916 of the Civil Code and that the usufruct of the surviving spouse should terminate on remarriage

Reasoning – Confirmation – by writing will – wording simply confirms intestate therefore, subject to limitation of Art. 890 – if testator does not expressly state a length of time > treat as confirmation of Art. 890

Chauvin was legislatively overruled by Art. 1499.

Succession of Waldron (1975 – pg. 62)

- left to daughter (plaintiff) – naked ownership of forced portion

- gave defendant usufruct for life of entire estate & naked ownership of disposable portion

- testator twice-repeated his desire that his daughter’s inheritance be restricted to her legitime

- will indicated he wanted to give as little as possible to daughter

Holding – defendant is entitled to inherit, in addition to the disposable portion in full ownership, a usufruct of the forced portion until remarriage

Law – excessive donations are not null, but merely reducible to the disposable portion – usufruct is legal and does not impinge on the legitime

In an Action for Reduction – must show impermissible burden on legitime – Art. 1499 – not an impermissible burden

Succession of Carlisi (1950 – pg. 68)

- decedent died testate

- decedent gave established usufruct of all his property in favor of surviving spouse – gave naked ownership to certain charitable organizations and collateral relatives

- the will did not dispense the usufructuary from giving bond or security

- Law – Code requires the usufructuary to give security or bond that he will use as a prudent administrator would do – Code does est. exceptions from giving security (s.s. did not qualify)

Holding – since the testator failed to dispense with the security the usufructuary must give security

Reasoning – decedent disposed of his share of the community property by will, and the usufruct in favor of s.s. was established by will, and not by operation of law

ABSENT PERSONS pg. 81

- being absent is not one of the grounds to lose property – if person comes back he still has right to property

Curator of an Absent Person’s Property (Art. 47)

- an absent person is one

1) who has no representative in this state

2) whose whereabouts are not known

3) cannot be ascertained by diligent effort

- when an absent person owns property in this state, the court may, upon petition of any interested party and a showing of necessity, appoint a curator to manage the property of the absent person

Comments:

- changes the law – today – a curator may be appointed at the discretion of the court upon petition

- “property” includes movables and immovables, corporeals and incorporeals

- curator should have both power of administration and disposition – the curator should exercise his power of disposition with the permission of the proper court

- appointment of curator is predicated on “necessity” – necessary for the protection of the interests of the absent person, of he interest of the petitioner, or of the interests of 3rd parties

Powers, Rights, and Duties of Curator (Art. 48)

- the curator has power of administration and disposition over the property of the absent person as provided by legislation

- when the absent person is a spouse in community, the curatorship is limited to his separate property

- curator may alienate / dispose / administer property

Legal Capacity of Absent Person (Art. 49)

- the establishment of the curatorship does NOT deprive the absent person of his capacity to make juridical acts

- NEVERTHELESS – his acts of disposition of immovable property are not effective towards 3rd persons and the curator unless filed for registry in the public records of the parish in which the immovable property is located

Comments:

- principle – an absent person continues to enjoy full legal capacity to make juridical acts

- although an absent person has full legal capacity to make juridical acts, 3rd persons acquiring rights in immovables form the curator of the absent person’s property ought to be protected in the absence of information in the public records that the immovable property has been disposed of by the purportedly absent person

- the acts of disposition made by a purportedly absent person after the establishment of the curatorship of his property are not effect towards 3rd persons unless filed for registry

Termination of Curatorship Right (Art. 50)

- the curatorship terminates of right when:

1) he appoints a person to represent him in this state

2) when his whereabouts become known

3) when he dies

Comments:

- the curatorship terminates of right – w/o the necessity of judgment

Termination by judgment of declaration of death (Art. 51)

- the curatorship of the property of the absent person also terminates when a judgment of declaration of death is rendered

- when an absent person has no known heirs and is presumed dead, it shall be the duty of the curator to initiate proceedings for a declaration of death

Effects of Termination of Curatorship (Art. 52)

- upon termination of the curatorship, the curator is bound to account for his management and to restore the property to the formerly absent person or to his successors

Comment:

- the curator is bound to account for his management – upon the demand of the formerly absent person or his successors

Validity of acts of curator after termination of the curatorship (Art. 53)

- when the curator acquires knowledge of the termination of his curatorship, he is bound to file a notice in the curatorship proceeding that his authority to manage the property of the formerly absent person has ceased

- acts of administration or disposition made by the curator after the curatorship has terminated are valid toward 3rd persons unless notice of the termination of the curatorship has been filed in the curatorship proceeding

- accords w/ the public records doctrine – 3rd persons have notice when it’s filed in the proceedings

Absent Person – Declaration of Death (Art. 54)

- one who has been an absent person for 5 years is presumed to be dead

- upon petition by an interested party, the court shall render judgment declaring the death of the absent person and shall determine the date on which the absence commenced

Hypo: Insurance Policy > pay when have proof of death

Law > judicial declaration will suffice

What if policy expires during 5 years person is absent?

Declaration of Death – Effect (Art. 55)

- the succession of the person declared dead shall be opened as of the date of death fixed in the judgment, and his estate shall devolve in accordance with the law of successions

New Evidence as to Time of Death (Art. 56)

- if there is clear and convincing new evidence establishing a date of death other than that determined in the judgment of declaration of death, the judgment shall be amended accordingly

- persons previously recognized as successors are bound to restore the estate to the new successors buy may keep the fruits they have gathered

Comments:

- if the original successors are unable to restore the property in kind, they will be bound to return its value at the time of restoration – there is no recourse against 3rd persons

Reappearance of Absent Person – Recovery of his Property (Art. 57)

- if a person who has been declared dead reappears

- he shall be entitled to recover his property that still exists in the condition in which it is found from those who took it as his successors or from their transferees by gratuitous title

- he may also recover the net proceeds of things alienated and for the diminution of the value of things that has resulted from their encumbrance

Comments:

- with respect to fruits – the persons who were placed in possession of the claimant’s property as his successors are considered to be possessors – if in g/f they shall be entitled to keep the fruits they have gathered

- w/ respect to improvements made on immovables = the persons who were placed in possession of the claimant’s proeprty shall have the rights of possessors under Arts. 496 & 497

Succession rights of person presumed dead or declared dead (Art. 58)

- a person who is presumed to be dead or who has been declared dead at a time a succession would have been opened in his favor canNOT be a successor

- the estate of the deceased devolves as if that person were dead at the time of the opening of the succession

- comment (c) – testate – goes to persons who succeed in his default / intestate – representation-

Reappearance of Absent Person – Recovery of his Inheritance (Art. 59)

- if the person who is presumed to be dead or who has been declared dead reappears, he shall be entitled to recover his inheritance in the condition in which it is found from those who succeeded in his default and from their tranferees by gratuitous title

- he may also recover the net proceeds of things alienated and for the diminution of the value of things that has resulted from their encumbrance

COMMENCEMENT OF SUCCESSIONS - opening of successions pg. 84

1981 – status of descendant changed from legitimate/illegitimate to biologically related to deceased

Filiation Action – illegitimate proves biological relationship

Old law – if there was a legitimate child then an illegitimate cannot take

2 rules:

1) ownership falls at opening of succession

2) seizin rights fall at opening of succession

What happens when succession opens?

Rights fall to successors / heirs / legatees

Rights stem from possession / ownership of property

Commencement of Succession (Art. 934)

- succession occurs at the death of a person

- all rights fixed as of that moment

- death = physical death & presumption of death under Art. 54

- capacity to receive is needed as of this moment

Acquisition of Ownership; Seizin (Art. 935)

- immediately at the death of the decedent, universal successors acquire ownership of the estate and particular successors acquire ownership of the things bequeathed to them

- prior to the qualification of a succession representative only a universal successor may represent the decedent w/ respect to the heritable rights and obligations of the decedent

Comments:

- ownership is distinct from seizin

- even particular legatees who did not have seizin had ownership from the date of the decedent’s death

- the succession representative has seizin

- while an estate is under administration the universal successors may not exercise the rights of the deceased, such as the right to alienate or encumber the property of the deceased, without first terminating the administration

- a successor may alienate or encumber his own interest in the estate even while the estate is under administration

- possession is now transferred to particular legatees as well as universal successors > all successors have rights that vest at the moment of death of the decedent

- prior to qualifications of successor – only universal successor can represent decedent (u.s. right to defend, litigate property, estate)

Continuation of the possession of decedent (Art. 936)

- the possession of the decedent is transferred to his successors, whether testate or intestate, and if testate, whether particular, general, or universal legatees

- a universal successor continues the possession of the decedent with all its advantages and defects, and with no alteration in the nature of the possession

- a particular successor may commence a new possession for purposes of acquisitive prescription

Transfer of Possession Art. 3441

- possession is transferable by universal title or by particular title

Comments:

- the possession is not interrupted by the death of the possessor

- the possession of the deceased is continued by his universal successor, such as an heir, universal legatee, or legatee under universal title

- a particular legatee is placed in possession by the universal successor of the deceased

- the possession of the deceased is tacked to the possession of the universal successor, and the possession of the latter to that of the particular legatee. Thus, there is no interruption of possession when a possessor dies

Transmission of Rights of Successor (Art. 937)

- the rights of a successor are transmitted to his own successors at his death, whether or not he accepted the rights, and whether or not he knew that the rights accrued to him

ex.Father dies > everything goes to son

son dies before exercises heritable right

right transmitted to son’s heir (grandson)

1 effect of seizin remains > transmission (art. 937)

Exercise of Succession Rights (Art. 938)

- prior to the qualification of a succession representative, a successor may exercise rights of ownership w/ respect to his interests in the estate

- upon qualification of a succession representative the exercise of those rights is subject to the administration of the estate

Comments:

- people w/ interest in succession can force administration of succession – Not all successions are administered

- this article recognizes the ownership of estate property enjoyed by a successor PRIOR to a formal judgment of possession, and affords a basis for his binding acts w/ respect to his own interest

- a person dealing with a successor may acquire such title or interest as the successor has; in particular, the rights of creditors may supersede that of a purchaser from the successor if timely asserted.

- this principle is consistent w/ Articles 2513 & 2650 – which provide that when a successor acts w/ respect to his right in an estate, he can do so with binding effect only as to his right as it may be eventually determined – he does not warrant title to a particular asset or portion of an asset, but only his right as an heir

- delicate balance b/t vesting rights in the successor & protecting the rights of creditors and correlating the rule with the role of the succession representative – particularly when an administration is required (see comment b)

- preserves the important functional distinction that has been made in prior law with reference to acts prior to and acts subsequent to qualification of a succession representative

- a succession representative is deemed to have possession of all property of the succession and is obligated to enforce all obligations in its favor

- when such a representative has been qualified, the acts of a successor are clearly subordinate to the power and authority of the succession representative

- upon qualification, a succession representative is the proper party to exercise rights of ownership in the assets of the deceased, to sue to enforce a right of the deceased, and to be sued to enforce an obligation of the deceased

- a successor retains the right to act w/ respect to his own interest in an asset or in the entire estate

Time between death and appointment of representative (fiduciary duty) – what are the rights of successors? Universal successor can represent decedent – rights of ownership & possession fall automatically

NO gaps in the law > always want someone recognized as owner/possessor.

Identify owner/possessor w/ no gaps in law > even if cannot actually possess (acknowledges rights of owner / possessor)

Testate = Executor

Intestate = Administrator (court appointed)

Judgment of possession > act translative of title?

Commorientes

- multiple persons die in the same event – persons are reciprocal heirs

- today – apply Art. 31

- no legal presumption when reciprocal intestate heirs die in same event

Art. 31 – Existence of a person at time of accrual of a right

- one claiming a right that has accrued to another person is bound to prove that such person existed at the time when the right accrued

ex. Mother & Daughter die in boat wreck

A is mother’s sister – B is daughter’s daughter

- A & B are fighting for both successions

- B claiming right b/c accrued to D – has to show/prove D existed when right in M’s succession accrued – prove D’s succession includes M’s succession – prove M died first

Succession of Langles (1898 – pg. 84)

- mother and daughter wrote reciprocal wills > alternate legacy

M > if D does not survive her $ goes to build hospital

D > if M does not survive her $ goes to hospital M built

- intention of parties – wanted combined assets of last one to build hospital

- M & D boarded French vessel > vessel collided w/ English vessel > ship sank

- **No way to establish who died first

- M & D died testate

(commorientes presumption for intestate only > based on age = D survived)

- court – even though testate succession – does not change anything b/c M & D confirmed intestate law and commorientes presumption applies – therefore, B collects

Problem – hospital did not exist at time of daughter’s death b/c mother died w/ her – capacity to receive has to exist at the time of death – therefore, the money could not go to the hospital

**Court WRONGLY applied commorientes presumption

Difference b/t rights of ownership & rights of possession

SEIZIN

- concept of seizin lost some of its significance when the La inheritance tax laws prohibited heirs from taking possession of succession property w/o first being recognized as heirs in a judgment of possession showing that any inheritance taxes had been paid

- 1981 legislative changes have presumably rendered all heirs capable of being seized by dispensing with the irregular appellation

don’t have seizin > judgment of possession

Don’t need judgment if law bestows right

Practical matter > need judgment

Who does not have seizin?

Today – does everyone has seizin rights?

OLD LAW – Before 1981

2 types of intestate successors (legal / irregular)

an heir acquired (seized of) property of the decedent immediately upon the latter’s death

right of possession continues in the heir from the moment succession is opened as if there had been no interruption

seizin transmitted to the heir even if he did not know that a succession has opened in his favor

authorizes the heir to institute all actions which the decedent had a right to institute and to prosecute those already commenced

have seizin > can walk in & take possession

Legal > legit heirs take possessionIrregular > illegit relations & surviving spouse to sep. prop.

Legal heirs would exclude irregular

Heirs that did not have seizin were irregular heirs

Heirs w/ deceased’s possessory rights did not have to get judgment of possession before exercising right b/c had right – legal heir w/ seizin rights could take possession w/o judgment

Problem – protection of creditors – if legal heirs could alienate / encumber property w/o judgment > legal heirs take possession = unconditional acceptance, therefore he is personally responsible for debts of deceased

Particular heirs did not have seizin

Acquired ownership by operation of law immediately upon death but cannot exercise any of the rights unless have seizin

La Inheritance Tax Laws

- prohibited heirs from taking possession w/o first being recognized as heirs in a judgment of possession sowing that any inheritance taxes had been paid

La Code of Civil Procedure

- cited the succession representative, not the heir as the person of seizin

Tulane v Board of Assessors (1905 – pg. 108)

- plaintiff university > universal legatee (property of Tulane is exempt from taxation)

- will also had particular legacies

- under will executors were expressly given seizin – years passes before the property was distributed

- Defendant contended at the time of the assessments the entire estate was vested in the succession & none of it in Tulane

- plaintiff argued all of the estate was vested in Tulane subject to the charges of the particular legatees

- LAW – property of the deceased person is transmitted directly and immediately to the legal heir or to the universal legatee – particular legacies became the property of the particular legacies from the day of the testator’s death – particular legacies formed no part of the property of the universal legatee – seizin may be in the universal legatee and ownership in particular legatee – taxability depends on ownership

Issue – at what point did the property fall into the ownership of Tulane and particular legatee

Holding – property under 940 was transmitted immediately to the universal legatee even though executor had seizin b/c seizin is possession not ownership

1981 > resolve constitutional problem – abolished irregular succession > prove biological relation

- all intestate successors have seizin

Universal > forced heir, universal legatees, intestate

Particular > expressly have seizin

Simpson v Colvin (1962 – pg. 119)

- plaintiff – administratrix – sought to compel defendant to vacate premises belonging to succession

- defendant – mother of 3 minor children of the decedent (children are forced heirs)

- succession had financial troubles

- Law – administrator/executor has actual possession of the property belonging to the estate during the administration of the succession – although the legal heirs or universal legatees may have the ownership or the legal or civil possession of such property

- **distinction b/t right of possession & possession in fact

Catlett v Catlett (1957 – pg 123)

- appeal sustaining the exceptions of no cause or right of action

- purpose of action – prevent the loss of property of plaintiff’s father’s succession

- the exceptions were predicated upon plaintiff’s father to allege they had been recognized as heirs and by judgment of the court sent and placed in possession of the estate and succession

- LAW – authorizes an heir before recognized as such or placed in possession by court to do any act that may seem necessary to preserve the property

Holding – court held plaintiff had right of action

Reasoning – an heir can sue directly w/o having been recognized as an heir by the probate court, and prove his heirship and his right to recover as an heir – all that can be required of him is to furnish satisfactory evidence of his right to inherit

Succession of Platt (1974 – pg. 125)

- deceased husband made wife universal legatee

- wife died at Tx domicile without probating husband’s will in La

- in wife’s will she made certain persons her universal legatee who sought to probate her will in La

- objection > wife died prior to becoming owner/possessor of La property b/c of her failure to probate his will therefore she could not transmit the property to her universal legatee

Holding – wife succeeded to her husband’s property rights at the instant of death and could transmit these to her heirs and legatees absent filing for probate in La.

Baten v Taylor (1979 – pg. 125)

- decedent set-up a will w/ a double suspensive condition >

1) wife conditioned on W surviving decedent for 30 days

2) nephew – conditioned on wife not surviving for 30 days

- will made wife & nephew universal legatee

- sister was to get nothing - no forced heirs

- survivorship periods – alternate legacy in case one does not survive long enough to enjoy it

- 1st time survivorship period had been validate – did not say how long a survivorship period will be valid (take into account how long property will be out of commerce)

Holding – will established permissible double suspensive condition

Reasoning – regard decedent’s intention that legacy is conditioned on arrival of 30 days (NOT prohibited substitution)

**Problem – who had seizin during 30 days?

Universal legatees did not have seizin b/c of suspensive condition

Legitimate heir (sister) had seizin for 30 days

Survivorship Periods – alternate legacy

Do not need to find words expressly stating a condition – look at intentions

Art. 1521 – vulgar substitutions – suspensive condition shall not exceed 90 days after the testator’s death

Substitutions Art. 1520

- substitutions are and remain prohibited

- EXCEPT – as permitted by the laws relating to trusts

- every disposition not in trust by which the donee, the heir, or legatee is charged to preserve for and to return a thing to a 3rd person is null, even with regard to the donee, the instituted heir or the legatee

Vulgar Substitutions – Simultaneous death Art. 1521

- the disposition by which a 3rd person is called to take a gift, the inheritance or the legacy, in case the donee, the heir, or the legatee does not take it, shall be considered a substitution and shall be valid, provided:

1) commorientes articles > when it was good – testator presumed to have survived 1st legatee

2) valid suspensive condition that the donee, heir, legatee, or trust beneficiary must survive the testator for a stipulated period – which shall not exceed 90 days after the testator’s death – in default of which a 3rd person is called to take the gift

Comments:

- validating an alternate legacy in the will

- if A can’t take – substitute B for A

- take at death of testator

INCAPACITY & UNWORTHINESS – Chapter 7 pg. 134

Unworthiness > any successor

Disinherit > forced heirs

Existence of Successor (Art. 939)

- a successor must exist at the death of the decedent

Same; Unborn Child (Art. 940)

- an unborn child conceived at the death of the decedent and thereafter born alive shall be considered to exist at the death of the decedent

Declaration of Unworthiness (Art. 941)

- a successor shall be declared unworthy if he is:

1) convicted of a crime involving the intentional killing, or attempted killing of the decedent OR

2) judicially determined to have participated in the intentional, unjustified killing, or attempted killing of the decedent

- an action to declare a successor unworthy shall be brought IN the succession proceedings of the decedent

- an executive pardon or pardon by operation of law does NOT affect the unworthiness of a successor

Comments:

- functional aspect of this provision is to divest the successor of rights for cause

- a person who lacks capacity to be a successor has never been a successor – while the person who is declared unworthy clearly has the capacity to be a successor but loses that right and is judicially divested of the right to inherit because of certain conduct on his part

- requires the declaration be part of the succession proceedings itself – such an action is not permitted during the lifetime of the ancestor b/c he might reconcile w/ the offending successor at any time up to the moment of his death

- unworthiness implies that the person divested is a successor and those rights are stripped from him

- a pardon does not exonerate unworthy behavior - a pardon does not preclude the rendering of a declaration of unworthiness nor does it in any way alter the effects of such a declaration if the declaration has already been rendered

- old law – needed criminal conviction

Persons Who May Bring Action To Declare a Successor Unworthy (Art. 942)

- may be brought ONLY by a person who would succeed in place of OR in concurrence with the successor to be declared unworthy OR by one who claims through such a person

Comments:

- a person who successfully brings an action to declare a successor unworthy must be someone who is entitled to the share that would have fallen to the successor whose rights are divested

- “one who claims through such a person” – covers the case of a right that is transmitted through a deceased successor pursuant to Art. 937 – transmission

Reconciliation or Forgiveness (Art. 943)

- a successor shall NOT be declared unworthy if he proves reconciliation with or forgiveness by the decedent

Comments:

- the measure of sufficient conduct to conclude that reconciliation has occurred or that forgiveness has occurred has been intentionally left to the courts

- the decedent himself may remove the possibility of a declaration of unworthiness by the acts of reconciliation or forgiveness

- burden on heir to establish act of reconciliation or forgiveness

Prescription (Art. 944)

- an action to declare a successor unworthy is subject to a liberative prescription of 5 years

- intestate successors - from the death of the decedent

- testate successors – from the probate of the will

Comments:

- prescription is NOT suspended in favor of minors during minority

Effects of Declaration of Unworthiness (Art. 945)

A judicial declaration that a person is unworthy has the following consequences:

1) the successor is deprived of his right to the succession to which he had been called

2) if the successor has possession of any property of the decedent, he must return it, along w/ all fruits and products he has derived from it – he must also account for an impairment in value caused by his encumbering it or failing to preserve it as a prudent administrator

3) if the successor no longer has possession b/c of a transfer or other loss of possession due to his fault, he must account for the value of the property at the time of the transferor other loss of possession, along with all fruits and products he has derived from it – he must also account for any impairment in value caused by his encumbering the property or failing to preserve it as a prudent administrator before he lost possession

4) if the successor has alienated, encumbered or leased the property by onerous title, and there is NO fraud on the part of the other party, the validity of the transaction is NOT affected by the declaration of unworthiness – BUT if he has donated the property and it remains in the hands of the donee or the donee’s successors by gratuitous title, the donation may be annulled

5) the successor shall NOT serve as an executor, trustee, attorney or other fiduciary pursuant to a designation as such in the testament or any codicils thereto – neither shall he serve as administrator, attorney, or other fiduciary in an intestate succession

Comments:

- various civil effects of a declaration of a declaration of unworthiness

- principal effect – the successor is deprived of the right to succeed – he is judicially divested of his right to inherit any of the property left by the decedent

- Donated – can go after 3rd party

- Alienated – go after unworthy successor who sold it NOT 3rd party

- if the successor is a forced heir he is deprived of his right to claim as a forced heir

- 2 & 3 are needed where a judgment of possession is rendered prior to declaration of unworthiness

- loss of possession other than transfer includes destruction or theft

- alienation, encumberance, or lease of the successor’s interest in the property includes exchange

- if those persons who seek a declaration of unworthiness are concerned about the conduct of the successor w/ reference to property during the pendency of the litigation, they may protect their interest in immovable property by filing a notice of lis pendens

Devolution of Succession Rights of Successor Declared Unworthy (Art. 946)

- intestate – his succession rights devolve as if he had predeceased the decedent

- testate – then the succession rights devolve in accordance with the provisions for testamentary accretion

- when the succession rights devolve upon a child of the successor who is declared unworthy, the unworthy successor and the other parent of the child can NOT claim a legal usufruct upon the property inherited by their child

Comments:

- intestate – permits the descendants of a person whose rights have been divested to inherit even when their degree of relationship would not otherwise permit them to do so – an exception to the rule of representation which is that only deceased persons may be represented – come in on their own right

- ex. – the decedent is survived by 2 sons – A & B – A has participated in the intentional murder of the decedent, but A has a son, C, who is totally innocent and blameless in the affair – C would inherit ahead of A’s co-heirs of the same degree

- testate - the testament may provide for the devolution of the property by a vulgar substitution – a declaration of unworthiness causes the legacy to lapse, and in that case the devolution of the property may be governed by the provisions of the testament

- prohibits an unworthy parent from obtaining the usufruct of his child’s inheritance – other parent does NOT have such a usufruct either

- quasi-representation – purpose – to get descendants in – not to put sins of ascendants on descendants

Hypo: A – renounces

B – Unworthy

C – cannot plead unworthiness against B

946 – D comes up through representation as if he is 1st degree

A – predeceasedB – unworthy

C comes up through representation

California-Western States Life Insurance v Sanford (1981 – pg 135)

- H shot & killed his estranged wife – H then shot himself, but survived – he was arrested & prosecuted for his wife’s murder

- after stipulating to the shooting H presented testimony of a psychiatrist that he was insane during the commission of the crime

- court acquitted H on grounds of insanity & committed him

- W had a life insurance policy w/ H named as beneficiary

- Cal-Western commenced interpleader action b/c of conflicting claims by H & 3 children to adjudicate rights to the money

- H argued that the acquittal of his W’s murder on grounds of insanity conclusively establishes his eligibility to receive the insurance proceeds

- children contended that while under the statute a criminal conviction bars a beneficiary from receiving insurance proceeds, an acquittal is not afforded the same conclusive effect & they are entitled to litigate the issue of H’s sanity in the proceedings

- Law 22:613(D) – no beneficiary, assignee, payee shall receive from the insurer any benefits there under accruing upon the death, disablement or injury of the individual insured when said beneficiary is held by a final judgment of a court to criminally responsible for the death

Holding – b/c the law does not require that a beneficiary be convicted of the felonious and intentional homicide of the insured before he is disqualified to receive the policy proceeds, nor make an acquittal conclusive on the issue of guilt, the children must be permitted to litigate the issue of H’s sanity

Whereas conviction of the crime is conclusive on the capacity issue, the lack of a conviction does not prevent a civil court from trying the issue on a preponderance of the evidence basis.

ACCEPTANCE AND RENUNCIATION - Chapter 8 pg. 137

Right of Successor to Accept or Renounce (Art. 947)

- a successor is NOT obligated to accept rights to succeed

- he may accept some of those rights and renounce others

Comments:

- a successor does not have to accept in toto, but may selectively accept part and renounce part

- applies to both testate successions & intestate successions

- applies to a particular legatee who may accept all or part of the particular legacy

- may accept in part & renounce in part

- cannot be forced to accept

Minor Successor Deemed to Accept (Art. 948)

- a successor who is a minor is deemed to accept rights to succeed

- but his legal representative may renounce on behalf of the minor when expressly authorized by the court

Comments:

- such a renunciation by his legal rep. Could be a matter of significant tax import under the federal tax rules regarding disclaimers

- a minor’s rights should not be renounced except under scrutiny

- “deemed” – conclusive & irrebuttable – stronger rule than rebuttable presumption

- minor accepts under operation of law

- minor can’t renounce b/c alienation of property

Death of decedent as Prerequisite to Acceptance or Renunciation (Art. 949)

- a person may NOT accept or renounce rights to succeed before the death of the decedent

Comment:

- public policy – that until the person who is to be succeeded has died the presumptive successors cannot act with reference to his successors

- no change from old law

Knowledge Required of Successor as Prerequisite to Acceptance or Renunciation (Art. 950)

- an acceptance or renunciation is valid ONLY if the successor knows of the death of the person to be succeeded AND knows that he has rights as a successor

- it is not necessary that he know the extent of those rights or the nature of his relationship to the decedent

Comments:

- it is the conjunction of the knowledge of death and the knowledge of rights that satisfies the predicate and validates an acceptance or renunciation

- no change from old law

Nullity of Premature Acceptance or Renunciation (Art. 951)

- a premature acceptance or renunciation is absolutely null

Comments:

- Refers to an acceptance that has been made either before the successor knows of the death of the person or before he knows that he has rights as a successor or before the person to be succeeded has in fact died

- ex. accept before – acceptance is absolutely null > can then renounce OR renounce before – renunciation is absolutely null > can then accept

Probate or Annulment of Testament after Acceptance or Renunciation of Succession (Art. 952)

- an acceptance or renunciation of rights to succeed by intestacy is null if a testament is subsequently probated

- an acceptance or renunciation of rights to succeed in a testate succession is null if the probate of the testament is subsequently annulled or the rights are altered amended, or revoked by a subsequent testament or codicil

Comments:

- where the successor believes that the rights to succeed that are involved arise by intestacy the operative fact that would nullify his acceptance or renunciation is the probate of a will – valid will

- testate – annulling the probate of that testament – either b/c a subsequent testament is discovered and it supersedes the one that was originally probated or the probate of the testament may be nullified b/c of form that is lack of authenticity or as the result of a challenge such as the testator’s lack of capacity

- the probate may not be annulled but the rights may be altered by the subsequent discovery of a codicil or of a testament that does not revoke the earlier testament and merely supersedes it in part

- if will is null > testament is invalid > falls intestate

Legacy Subject to a Suspensive Condition (Art. 953)

- a legacy that is subject to a suspensive condition may be accepted or renounced either before or after the fulfillment of the condition

Comments:

- rights fall when condition is fulfilled (event happens)

- addresses only legacies on a suspensive condition

- a resolutory condition may be accepted like any other legacy prior to fulfillment of the condition and becomes nugatory once the condition has occurred

- old law – could not accept / renounce until condition (event) happened b/c right doesn’t fall until condition happens

Retroactive Effects of Acceptance and Renunciation (Art. 954)

- acceptance – a successor is considered as having succeeded to those rights at the moment of death of the decedent

- renunciation – he is considered never to have had the rights to succeed

Comments:

- fictitious relation-back to the moment of death that is important in terms of vesting rights

- “to the extent” – applies to accepts in part & renounces in part – relates-back

- an acceptance of part that accretes through renunciation of other successors will have the same retroactive effect and relate back to the moment of death

- retroactive b/c cannot have any gaps in ownership/possession

Claims of Successor who is a Creditor of the Estate (Art. 956)

- a successor may assert a claim that he has as a creditor of the estate whether he accepts or renounces his succession rights

Comments:

- a successor who is a creditor of the estate should have the right to pursue his claims as a creditor

- as creditor he will be paid before the heirs

ACCEPTANCE

Formal or Informal Acceptance (Art. 957)

- formal – the successor expressly accepts in writing or assumes the quality of successor in a judicial proceeding

- informal – the successor does some act that clearly implies his intention to accept

Comments:

- even in the absence of either formal or informal acceptance there is a presumption that all successors accept their rights (Art. 962)

- a successor canNOT be personally liable for more than the value of property he actually receives, so the presumption of acceptance or the act of acceptance does not carry dire or baleful consequences with it as before

- old law – express or tacit

Informal Acceptance – Use or Disposition of Property (Art. 958)

- acts of the successor concerning property that he does not know belongs to the estate do not imply an intention to accept

Comment:

- knowledge required before intention is inferred – act manifesting intent

- if the successor disposes of property that does not actually belong to the estate than he is not implying an intention to accept & art. 958 does not apply

- if he disposes of property that does belong to the estate then the article requires that he know that it belongs to the estate before the inference of an intention to accept may be made

- such actions of acceptance in effect ratify the presumption and preclude renunciation

Informal Acceptance – Act of Ownership (Art. 959)

- an act of ownership that can be done only as a successor implies acceptance

- but an act that is merely administrative, custodial, or preservative does not imply acceptance

Comments:

- practical problems

- successor is sued and fails to defend himself > if sued the successor should respons by affirming or denying that capacity

- takes care of the burial of the decedent or paying for funeral expense > nothing more than acts of piety or reverence that do not constitute acts of ownership with reference to property of the decedent

- making a donation, a sale, or an assignment of rights that the successor receives whether they are transferred to a stranger or to co-heirs ought to be considered an acceptance

Donative Renunciation Deemed Acceptance (Art. 960)

- a renunciation shall be deemed to be an acceptance to the extent that it causes the renounced rights to devolve in a manner other than that provided by law or by the testament if the decedent died testate

Comments:

- ex. – heirs = John, Betty, & Sam – Sam renounces in favor of John > Sam accepts & subsequently donates to John

- when a person renounces succession rights in favor of another person in a manner other than that provided by law, the renunciation is not a true renunciation, but in fact constitutes an acceptance of the rights coupled w/ a donation to the 3rd person in whose favor the rights are renounced

- for such an act to be a true renunciation, the successor must merely renounce, leaving the renounced rights to devolve on those who would be legally entitled to succeed to them under the provisions of the testament or under the succession law

- donation – therefore must be in authentic form – if the acceptance would be valid but the donation over to the 3rd party would be invalid – a renunciation must be express and in writing but not required to be in notarial form – failure to make the donative renunciation in notarial form could be a problem

- the renunciation is only trated as an acceptance to the extent that the renunciation-over in favor of the 3rd person is different from the manner in which the rights would devolve otherwise

ex. if the successor renounces in favor of “A” but “A” would have received the property if the successor had merely renounced, then the renunciation should be treated as a renunciation and not as a renunciation-qua-acceptance

Effect of Acceptance (Art. 961)

- acceptance obligates the successor to pay estate debts in accordance w/ the provisions of this Title and other applicable laws

Comments:

- payments of debts of the decedent and administrative expenses and the limitation of liability

- taxes

- Arts. 1415 – 1429

- **Repealed R.S. 9:1421 – Benefit of inventory

- ex. Heir takes truck in succession – only responsible for debts of value of pick-up truck at time of acceptance

- never responsible to pay more than value received at the time received it – Art. 1416 (action of creditor) – not responsible if did not receive property of the estate or its fruits & products

- thing depreciates over time – still responsible for value taken at time

Can always take on more obligations than provided by law through contract

Ex. natural obligation turns into civil obligation – write intent to pay all of father’s debts

Presumption of Acceptance (Art. 962)

- in the absence of renunciation a successor is presumed to accept succession rights

- nonetheless, for good cause the successor may be compelled to accept or renounce

Comments:

- does not provide who has the right to compel – unrestricted so that any interested party (succession rep., another heir, legatee, or creditor) will have the right to compel the successor to accept or renounce – must have “good cause”

- limited liability for accepting successors

- where acceptance does NOT carry w/ it unlimited personal liability all successors are presumed to accept

- the successor will have the right to renounce even though he has been presumed to accept

- ex. of “good cause” – a succession rep. who needs to terminate the administration and place the successors in possession – a good cause to compel a response by a successor

- “good cause” – should protect the successor who reasonable needs a longer time in which to deliberate – delay if the extent of the assets and liabilities of the estate has not been determined – court finds good cause

- ?presumption is not an acceptance – can always renounce

does presumption work in place of prescription?

Hypo: mom dies > leaves kids & grandkids

- do grandkids have to wait for 30 years if kids do not accept or renounce?

- new law – good cause shown – can compel

- old law – no mechanism to force kids to act

RENUNCIATION

Requirement of Formality (Art. 963)

- must be express AND in writing

Comments:

- does NOT have to be in authentic form

- there is no reason to prohibit conditional acceptances or conditional renunciations

- alienation of property must clearly demonstrate intent to renounce

Accretion Upon Renunciation in Intestate Successions (Art. 964)

- the rights of an intestate successor who renounces accrete to those persons who would have succeeded to them if the successor had predeceased the decedent

Comments:

- treat renounced rights as if the successor who renounces had predeceased the decedent

- produces a result similar to representation

- usually the intended result of such a renunciation is in fact for the successor’s descendants to take by virtue of the renunciation

- ex. – if a decedent is survived by 2 children – A & B – and A has a child C – A renounces – the rights accrete to those persons who would have represented A if he had predeceased the decedent which means that C would inherit the full set of rights renounced by A

- intestate successors to whom a portion accretes by renunciation share the accretion in the same proportion that they do the inheritance

- ****a renunciation of ones original inheritance would NOT preclude him from accepting what might come to him by accretion by virtue of another’s renunciation

Accretion upon Renunciation in Testate Successions (Art. 965)

- in the absence of a governing testamentary disposition

- the rights of a testate successor who renounces accrete to those of his descendants by roots who were in existence at thee time of the decedent’s death – but if none exists, in accordance w/ the rules for lapsed legacies

Comments:

- accretion in a testate must be treated different from accretion in intestacy

- the testament itself may govern to whom the rights accrete in the event of a renunciation – if the successor wants to achieve a different result he must accept the bequest and then make a donation to the person or persons whom he intends to favor

- renunciation causes a legacy to lapse under Art. 1589 – legacy lapses when it cannot be fulfilled) – legacy is w/o effect

- successor could achieve their own result by accepting & donating

Acceptance or Renunciation of Accretion (Art. 966)

- a person to whom succession rights accrete may accept or renounce all or part of the accretion

- the acceptance or renunciation of the accretion need not be consistent with his acceptance or renunciation of other succession rights

Comments:

- permits an heir who has renounced the original inheritance to accept what may come to him by accretion

- he may also accept the initial inheritance and renounce the accretion – or both

- can renounce own right and accept accretion

Acceptance of Succession by Creditor (Art. 967)

- a creditor of a successor may w/ judicial authorization accept succession rights in the successor’s name if the successor has renounced them in whole or in part to the prejudice of his creditor’s rights

- in such a case, the renunciation may be annulled in favor of the creditor to the extent of his claim against the successor, but it remains effective against the successor

Comments:

- a creditor who accepts succession rights in the name of his debtor can only accept those rights under the same conditions as the successor himself

- as a result – it is implicit that the acceptance does not render the creditor liable for debts or administration expenses of the estate except to the value of the effects of the estate that may be received by the creditor

- ranking among the creditors – viewed on an ad hoc basis (ex. not sufficient assets to pay all the creditors)

Unpaid New Creditors’ Action Against Paid Creditors (Art. 1188)

- if, after the creditors of the succession have been paid by the curator, in conformity with the dispositions of the preceding articles, creditors present themselves, who have not made themselves known before, and if there does not remain in the hands of the curator a sum sufficient to pay what is due them, in whole or in part, these creditors have an action against those who have been paid, to compel them to refund the proportion they are bound to contribute, in order to give the new creditors a part equal to that which they would have received, had they presented themselves at the time of the payment of the debts of the succession

- this action on the part of the creditors who have not been paid, against the creditors who have bee is prescribed by the lapse of 3 years – counting from the date of the order of judgment, in virtue of which the payment has been made

Mumford v Bowman (1874 – 138)

- express & implied acceptance – it must be made clear that it was the in