Outline - Supreme Court of Louisiana by fionan

VIEWS: 164 PAGES: 20

									                      CHAPTER 2: INTESTATE SUCCESSION

                     Succession of the Misses Morgan.-On the petition of Ellen Stewart,
                            claiming as representatives of Thos. A. Morgan.
                                     No. 2333.
                                    March, 1871.


 Where an intestate leaves a succession which falls exclusively to collateral heirs, one of
whom claims by representation, such representative cannot be compelled to
 collate a debt which his ancestor owed to the deceased, as LSA- C.C. art. 1313, provides
that collateral relatives are not bound to collate their gifts or debts.




                                             1
                                     Destrehan
                                        v.
                                   Destrehan's Executors.
                                    June Term, 1826.


 Grandchildren, in a partition of their grandfather's estate with uncles and aunts, need not
collate an advancement to their father, whose succession, opened before
 that of the grandfather, they had renounced.


  The questions submitted to the court, to be decided in the present case, arise out of
proceedings relating to an adjustment and partition of the succession of the
 late Jean Noel Destrehan: some are of fact and others of law. To understand them, it is
necessary to state the situation of the parties to this suit, and that of their
 ancestor, from whom they claim to inherit. The widow G. N. Destrehan claims, as tutrix
of her minor children now living, and as heir to those who died since the
 death of their father and grandfather, a part of the succession of the latter, which appears
to have been administered, and was finally adjudged to his wife at the
 appraised value, as a partner in the community, and who is since dead, leaving as heirs
the same persons who succeeded as such to her husband's estate, with the
 exception of the present appellant, so far as she claims in her own right.




                                              2
                                SUCCESSION OF Regina DUBOS.
                                   June 3, 1987.

 Petition was filed for declaratory judgment seeking declaration as to who succeeded to
estate of decedent. The Civil District Court, Parish of Orleans, George C.
 Connolly, Jr., J., held that universal legatees of decedents half- uncle were sole rightful
heirs of decedent, and appeal was taken. The Court of Appeal, Klees, J.,
 held that half-uncle was related to decedent in nearest degree, and immediately
succeeded to decedent from instant of her death, and transmitted his right of
 inheritance to his universal legatees.
 Affirmed.


 Where decedent was survived only by collateral relations and her half-uncle was related
to her in nearest degree, half-uncle immediately succeeded to her estate and
 immediately transmitted his rights of inheritance to his universal legatees,
notwithstanding fact that uncle died before having accepted succession or having been
put in
 possession, despite fact that half-uncle's third-degree relation was half-blood and that
decedent left whole-blood relations in fourth degree, and regardless of whether marriage
of half-uncle's parents was bigamous. LSA-C.C. arts. 117, 118, 899, 900, 901, 940, 941,
944.




                                              3
                                Supreme Court of Louisiana.
                                    PALINE
                                      v.
                              HEROMAN (SHERRILL, Intervenor).
                                    No. 38303.
                                   Dec. 13, 1946.
                               Dissenting Opinion Dec. 20, 1946.

 Suit by Emile Paline against Fred I. Heroman, Jr., for specific performance of a contract
to purchase land, wherein Virginia Paline Sherill intervened. Judgment for
 defendant and plaintiff appeals.
 Reversed and judgment ordered in favor of plaintiff.
 HAWTHORNE and FOURNET, JJ., dissenting.



 Those in the "next degree" within statute providing that the portion of an heir renouncing
the succession goes to his coheirs of the same degree and if he has no
 coheirs of the same degree, to those in the "next degree" refers to the heirs of the de
cujus who are next in rank or right to inherit in the succession which the heir has
 renounced. LSA-C.C. art. 1022.


 The husband's portion of community property, after renunciation by both of his two
children passed to the surviving widow, in community, in absence of parents,
 rather than to children of renouncing child. Civ.Code, arts. 888, 899, 915, 946, 1021,
1022.




                                             4
PRINCE v. Irita B. HOPSON and Victoria H. Albert.

                                    June 11, 1956.

 Proceeding by deceased's putative wife against deceased's legal wife and child to declare
putative wife to be owner of lot conveyed to her by seller without
 recitation of paraphernality after marriage contracted in good faith under mistaken belief
that deceased had obtained final judgment in divorce action. The Civil
 District Court, Parish of Orleans, Division 'B', Walter B. Hamlin, J., entered judgment
for putative wife and legal wife and child appealed. The Supreme Court,
 Hawthorne, J., held that the evidence was not sufficiently clear, positive and legally
certain to overcome the presumption that the lot was community property.
 Judgment annulled and set aside with directions.

 Regardless of pleading relating to ownership of or interest in property which was subject
of declaratory judgment action, court would award interest to litigants
 under what it deemed to be appropriate law.

In proceeding by deceased's putative wife against deceased's legal wife and child to
declare putative wife to be owner of lot conveyed to her by seller after marriage
 contracted with deceased who never obtained final judgment in divorce action, evidence
did not sustain finding that deceased had contracted marriage with putative
 wife in bad faith, and it would be presumed that putative wife and deceased contracted
marriage in good faith.

Although final judgment was never rendered in deceased's action for divorce, subsequent
marriage contracted in good faith produced a community of acquets
 between putative wife and deceased under statute providing that marriage which has
been declared null produces nevertheless its civil effects if it has been
 contracted in good faith. LSA-C.C. art. 117.

Property purchased in the name of either spouse during existence of community of
acquets and gains is presumed to be community property. LSA-C.C. arts. 2334,
 2402.


 When a married woman buys property in her own name, failure to make recitation of
paraphernality in the deed is not fatal, and she may overcome presumption of
 community by showing that funds constituting price paid for property were paraphernal
funds, that they were administered by her, and that they were invested by
 her.


Proof necessary to overcome presumption of community must be strict, clear, positive,
and legally certain.




                                             5
 In proceeding by deceased's putative wife against deceased's legal wife and child to
declare putative wife to be owner of lot conveyed to her by seller without
 recitation of paraphernality after marriage contracted in good faith under mistaken belief
that deceased had obtained final judgment in divorce action, evidence was
 not sufficiently clear, positive and legally certain to overcome presumption that lot was
community property.



 Where deceased contracted marriage with putative wife in good faith and in mistaken
belief that he had been divorced, deceased's sole surviving child by legal wife
 inherited undivided one-half interest in community property purchased in name of
putative wife. LSA-C.C. arts. 117, 118, 915, 2402.


 Where deceased had contracted marriage in good faith and in mistaken belief that he had
been divorced from legal wife and where deceased was survived by child
 who inherited undivided one half interest in property purchased in putative wife's name
during existence of putative community, remaining undivided one half interest
 in such property would be divided between putative wife and legal wife. LSA-C.C. arts.
117, 915, 2406.


Putative wife who had built improvements on community property after husband's death
was entitled to right to claim from legal wife and child proportionate share
of enhanced value of property resulting from improvement.




END OF PRINCE V. HOPSON




                                             6
WINSBERG, Administratrix        V.    WINSBERG
                                     May 6, 1957.

 Administratrix of succession of deceased son of testator brought suit for accounting, as
administratrix and as tutrix of minor child of deceased son, against testator's
 widow and testator's surviving son and daughters. The Civil District Court for the Parish
of Orleans, Division 'E', No. 283--579, Frank J. Stich, J., entered
 judgment, and testator's widow and surviving son and daughters appealed, and the
administratrix answered the appeal. The Court of Appeal, 75 So.2d 542,
 transferred the appeal to the Supreme Court. The Supreme Court, 229 La. 61, 85 So.2d
31, ordered the case retransferred to the Court of Appeal. The Court of
 Appeal, 87 So.2d 362, affirmed the judgment, and the case came before the Supreme
Court on writ of certiorari. The Supreme Court, Fournet, C.J., held that
 where testator left all that he died possessed of, consisting wholly of community
property, to his widow by his will, and surviving him also were two daughters and
 two sons, all born of the union, the share of the community realty inherited by one of the
sons was subject to a usufruct in favor of the widow, and administratrix of
 estate of that son after his death was not entitled to an amount representing rent of
community realty of testator and his widow.
 Judgments of the District Court and of the Court of Appeal annulled and set aside and
case dismissed.


 A spouse in community can legally bequeath to the survivor the disposable portion of his
or her estate, as it was always 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, and the language used, whether a bequest or a ratification, is
 immaterial. LSA-C.C. arts. 916, 2291.

 Where testator left all that he died possessed of, consisting wholly of community
property, to his widow by his will, and surviving him also were two daughters and
 two sons, all born of the union, the share of the community realty inherited by one of the
sons was subject to a usufruct in favor of the widow, and administratrix of
 estate of that son after his death was not entitled to an amount representing rent of
community realty of testator and his widow. LSA-C.C. arts 916, 2291.

 Fact that testator's widow, to whom testator by will left all he died possessed of,
consisting wholly of community property, was instrumental with children of testator
 in obtaining judgment reducing legacy to disposable portion and placing the heirs in
possession, without mention of usufruct in favor of surviving spouse would not
 estop widow from attacking the judgment in suit for accounting by administratrix of
estate of deceased son of testator, where nothing had been done by testator's
 widow pursuant to the judgment of possession to prejudice the interest of the deceased
son of testator in the realty.




                                             7
                                Supreme Court of Louisiana.
                               Succession of B. J. CHAUVIN, Sr.
                                    No. 51140.
                                   Jan. 17, 1972.
                               Rehearing Denied Feb. 21, 1972.

 The Civil District Court for the Parish of Orleans, No. 486,155, Division 'C', Richard J.
Garvey, J., maintained widow's exception to rule filed by her son directing
 her to show cause why usufruct should not be declared terminated, and homestead and
son appealed. The Court of Appeal affirmed in part, reversed in part, and
 remanded, 242 So.2d 340, and writs of certiorari were granted to consider effect of
marriage of surviving widow upon her usufruct. The Supreme Court, Dixon, J.,
 held that mere confirmation, in a last will and testament, of the legal usufruct conferred
by statute on surviving spouse and on community the usufruct of decedent's
 interest in community, leaving issue of the marriage with the naked ownership, does not
free the usufruct from limitations of such statute terminating usufruct
 whenever the surviving spouse remarries.
 Affirmed.
 Hamlin, J., concurred in part and dissented in part with written reasons and was of the
opinion a rehearing should be granted.
 Tate, J., concurred and assigned written reasons.
 Summers, J., dissented and was of the opinion a rehearing should be granted.

 Mere confirmation, in a last will and testament, of the legal usufruct conferred by statute
on surviving spouse and on community the usufruct of decedent's interest in
 community, leaving issue of the marriage with the naked ownership, does not free the
usufruct from limitations of such statute terminating usufruct whenever the
 surviving spouse remarries. LSA-C.C. arts. 540, 916, 1493.




                                             8
                                Supreme Court of Louisiana.
                             Succession of Gilbert Spence WALDRON.
                                    No. 56156.
                                   Nov. 3, 1975.

 Testator's daughter brought suit seeking to reduce the bequest of the usufruct in favor of
her mother insofar as it affected or encroached on the daughter's forced
 portion. The 19th Judicial District Court, East Baton Rouge Parish, Eugene W.
McGehee, J., held that the bequest made by the testator was a testamentary
 confirmation of the legal usufruct to which testator's surviving widow was entitled under
statute and which therefore was not subject to reduction. The Court of
 Appeal, 308 So.2d 364, affirmed. On further appeal, the Supreme Court, Marcus, J., held
that the testator, in attempting to give his wife greater rights than the law
 permitted, did not deprive her of the legal usufruct.
 Judgment of Court of Appeal reversed and judgment of trial court reinstated.
 Dixon, J., dissented and filed opinion.

Legal usufruct does not apply only in intestate successions; testator may confirm in his
will usufruct that surviving spouse inherits by operation of law. LSA-C.C.
arts. 540, 916.
Surviving spouse is permitted to cumulate legal usufruct in her favor with donations
mortis causa that do not exceed disposable portion of decedent's estate; testator
is not permitted, however, to burden legitime with usufruct beyond period authorized by
Civil Code. LSA-C.C. art. 916.

 Legal usufruct, even when confirmed in testament, terminates by operation of law upon
surviving spouse's remarriage. LSA-C.C. art. 916.

 Testator did not, by creating usufruct for life of his surviving spouse, thus attempting to
give her greater rights than law permitted, deprive her of her legal usufruct;
 testator's daughter therefore was not entitled to reduction of bequest of usufruct insofar
as it affected her forced portion of estate. LSA-C.C. arts. 540, 916, 1493,
 1494, 1499, 1502 et seq., 1710, 1712, 1713.

Surviving spouse is entitled to legal usufruct unless testamentary disposition is adverse to
such usufruct, as when testator exhausts, by means of donations mortis
 causa to persons other than spouse, portions of estate subject to legal usufruct or defeats
usufruct simply by stating his intention that his share of community property
 inherited by issue of marriage shall not be subject to it. LSA-C.C. art. 916.

 Bequests to one's spouse of more than law allows is not adverse disposition that defeats
legal usufruct. LSA-C.C. art. 916.

 Where decedent dies only partially testate, legal usufruct attaches to undisposed share of
community estate as may be inherited by issue of marriage. LSA-C.C. art.
 916.



                                              9
 Where, although testator bequeathed usufruct in entire estate in favor of spouse for life,
usufruct was authorized only until remarriage by statute and thus did not
 burden legitime contrary to law, and disposable portion was left to spouse in full
ownership, testator's daughter could not avail herself of special action of reduction
 with compensation envisioned by Civil Code. LSA-C.C. arts. 916, 1499.

 Where testator has bequeathed full ownership of disposable portion and usufruct of
forced portion that is not authorized by Civil Code, remedy of forced heir is
 action for simple reduction of usufruct rather than special action for reduction with
compensation. LSA-C.C. arts. 916, 1499, 1502.




                                             10
                     CHAPTER 3: ILLEGITIMATE CHILDREN
                       Succession of Sidney BROWN, Jr.

                                     Sept. 3, 1980.

 Acknowledged illegitimate children of decedent, who died intestate, brought suit to
annul a judgment of possession recognizing legitimate child as sole heir of
 decedent. The First Judicial District Court ruled against illegitimate children, the Court
of Appeal reversed and remanded, and a writ of certiorari was granted. The
 Supreme Court, Blanche, J., held that the statute which excludes acknowledged
illegitimates from participating in the succession of their father when he is survived
 by legitimate descendants, ascendants, collateral relatives, or a surviving spouse was
unconstitutional on the basis of federal and state equal protection, in that the
 distinction drawn by the statute between acknowledged illegitimates and all other
relations of decedent was arbitrary, capricious, and unreasonable, and there was
 no legislative authority to remedy the loss of succession rights by illegitimates as the
children of their father. Affirmed.

 To uphold constitutionality of statute excluding acknowledged illegitimates from
participating in succession of their father when he is survived by legitimate
 descendants, ascendants, collateral relatives, or a surviving spouse, under equal
protection analysis, it must be shown that classification is "substantially related" to
 permissible state interests. U.S.C.A.Const. Amend. 14; LSA-Const. Art. 1, § 3; LSA-
C.C. art. 919.
Fact that father could have left a will, or legitimated, or even adopted illegitimates, did
not serve as a sufficient state interest so as to constitutionally clothe statute
 excluding acknowledged illegitimates from participating in succession of their father
when he is survived by legitimate descendants, ascendants, collateral relatives, or
 surviving spouse. U.S.C.A.Const. Amend. 14; LSA-Const. Art. 1, § 3; LSA-C.C. art.
919.

 State interest of stable land titles and orderly disposition of property, advocated in
support of statute excluding illegitimates from inheritance, will withstand an equal
 protection analysis if statute provides illegitimates some way to obtain equal protection.
U.S.C.A.Const. Amend. 14; LSA-Const. Art. 1, § 3; LSA-C.C. art. 919.

 Statute excluding acknowledged illegitimates from participating in succession of their
father when he is survived by legitimate descendants, ascendants, collateral
 relatives, or surviving spouse was unconstitutional on the basis of federal and state equal
protection, in that distinction drawn by statute between acknowledged
 illegitimates and all other relations of decedent was arbitrary, capricious, and
unreasonable, and there was no legislative authority to remedy loss of succession rights
 by illegitimates as children of their father. U.S.C.A.Const. Amend. 14; LSA-Const. Art.
1, § 3; LSA-C.C. art. 919.




                                             11
                               Supreme Court of Louisiana.
                             SUCCESSION OF Viola Alexander CLIVENS.
                                   July 2, 1982.

 Allegedly acknowledged illegitimate daughter intervened in succession of her alleged
father's widow, contending that she was entitled to his half of estate. The Civil
 District Court, Parish of Orleans, Revius O. Ortique, J., sustained an exception of no
cause of action to the intervention, and she appealed. The Court of Appeal,
 406 So.2d 790, affirmed, and appeal was again taken. The Supreme Court, Calogero, J.,
held that: (1) the Supreme Court's Brown decision, holding
 unconstitutional statute barring illegitimate children from inheriting from their natural
fathers in same manner as legitimate children, is to be applied retroactively, as
 relates to testate as well as intestate succession, to effective date of Louisiana
Constitution of 1974 as well as prospectively, and (2) intervenor's petition therefore
 failed to state cause of action.
 Original decree vacated; Judgments of the District Court and the Court of Appeal
affirmed.

Louisiana Supreme Court's Brown decision, holding unconstitutional succession statute
barring illegitimate children from inheriting from their natural fathers in same
 manner as legitimate children, is to be applied retroactively, as relates to testate as well
as intestate successions, to effective date of Louisiana Constitution of 1974
 as well as prospectively. (Per Calogero, J., with two Justices joining and one Justice
concurring). LSA-C.C. art. 8.

Generally, unless decision specifies otherwise, it is to be given prospective and
retroactive effect. (Per Calogero, J., with two Justices joining and one Justice
 concurring.)--Id.

 Retroactivity of decision is not constitutionally required, and states are free to limit
retroactivity of their civil decisional law when necessary or advisable. (Per
 Calogero, J., with two Justices joining and one Justice concurring.)--Id.

Because of constitutionally required forced heirship, testator is not free to bequeath all his
property to whomever he pleases if he leaves descendants; rather,
 descendants have constitutional as well as statutory right to forced portion. (Per
Calogero, J., with two Justices joining and one Justice concurring.) LSA-Const.
 Art. 12, § 5.

 Acknowledged illegitimate daughter's petition, alleging legal entitlement to father's
succession as father's sole descendant, failed to state cause of action,
 notwithstanding decision holding unconstitutional statute barring illegitimate children
from inheriting from their natural fathers in same manner as legitimate children,
 where father died prior to date to which limited retroactive application of decision
applied. (Per Calogero, J., with two Justices joining and one Justice concurring.
 LSA-C.C. art. 919 (Repealed); LSA-Const. Art. 1, § 3; U.S.C.A. Const.Amend. 14.



                                              12
                           CHAPTER 4: ABSENT PERSONS
                                   In re BOYD.
                                Dec. 28, 1998.

Brother filed petition for declaration of death of absent sister. The 19th Judicial District
Court, East Baton Rouge Parish, No. 424,321, Jewel E. Welch, Jr., J.,
denied petition, and brother appealed. The Court of Appeal, Remy Chiasson, Judge Pro
Tem., held that brother was entitled to declaration of absent sister's death.
Reversed and remanded.

Brother was entitled to declaration of absent sister's death, where family had no contact
with sister since 1983, ad hoc attorney appointed to represent sister tried to
 locate sister through telephone book of city where sister was last known to reside, and
attorney placed missing person ad in papers. LSA- C.C. art. 54.


 Statute providing for the declaration of death of an absentee requires that an attorney ad
hoc appointed to represent the absentee use reasonable diligence to locate
 and inform the absentee of the pendency of the action against the absentee. LSA-C.C.
art. 54.

 Sister's absence, for purpose of statute providing for declaration of death of absentee,
commenced when sister left last known domicile. LSA-C.C. art. 54.

 Absentee's legal death, for purpose of statute providing for declaration of death of
absentee, occurred five years after date absentee left last known domicile.
 LSA-C.C. art. 54.




                                             13
                                Supreme Court of Louisiana.
                                Successions of LANGLES et al.
                                    No. 13,323.
                                   April 23, 1900.

 Appeal from civil district court, parish of Orleans; Nicholas H. Rightor, Judge.
 In the matter of the successions of Pauline Langles and Angele Langles. From the decree
of distribution, Rosamond Herwig and others appeal. Modified.

Mother and daughter by seprate wills bequeathed each to the other her whole estate, each
making other disposition of her property in case her devisee failed to
 survive her. Both perished in a shipwreck. Held that, as the daughter was presumed
under Rev.Civ.Code, arts. 936, 937, 939 (LSA- C.C.), to survive, the entire
 estate of the mother passed to her under the mother's will, the substituted provisions not
taking effect, and the daughter's estate, including that received from her
 mother, passed under the substituted provisions of her own will.

 The provision in a will that the executor should expend a certain amount for a tomb for
the testatrix does not lapse because the body of the deceased could not be
 recovered and deposited in it, since the word "tomb" has a sufficiently broad
signification to be held to be a monument in memory of the dead, and as such it should
 be erected.

Where a mother and her daughter, sole presumptive heirs of each other under separate
wills, perish in a shipwreck, and it is impossible to ascertain which of the two
survived, it will be presumed that the daughter, 35 years old, survived the mother, who
was 52 years of age.


 Where two persons are, by law, entitled to inherit from one another, the fact that they
make wills in favor of each other does not deprive either of them of the benefit
 of the presumption as to survivorship established by Rev.Civ.Code, art. 936.
                                   Syllabus by the Court
 1. A mother and daughter, sole presumptive legal heirs of each other, by separate wills
bequeathed each to the other her whole estate, and, having so willed, each
 contingently made another disposition of the same. The declared contingency in each
case was the death of the instituted heir prior to that of the particular testatrix.
 Mother and daughter perished in a shipwreck, under conditions such as to render it
impossible, by evidence, to ascertain which of the two survived. Under such
 circumstances the presumptions of survivorship fixed by the articles of the Revised Civil
Code apply. The mother being 52 years of age and the daughter 35, the
 latter must be held to have been the survivor. There is no presumption of
simultaneousness of death in Louisiana.
 2. Courts construe, and do not make, wills; and if an event has happened for which a
testator has not provided from not having foreseen it, although, if he had




                                            14
 foreseen it, there is a strong probability he would have provided for it in a particular
way, his supposed wishes shall not prevail. 'Quod voluit non dixit.' Courts have
 to give effect to the expressed, not the conjectural or probable, intention of the testators.
 3. The provision in a will that the executor should expend a certain amount for a tomb
for the testatrix does not lapse because the body of the deceased could not
 be recovered and deposited in it. The word 'tomb' has a sufficiently broad signification to
be held to be a monument in memory of the dead; as such it should be
 erected.
 On Rehearing.
 Where two persons are, by law, entitled to inherit from one another, the fact that they
make wills in favor of each other does not deprive either of them of the benefit
 of the presumption as to survivorship established by article 936 et seq. of the Revised
Civil Code.




                                             15
TULANE UNIVERSITY OF LOUISIANA
                           v.
                      BOARD OF ASSESSORS et al.

                                     Dec. 18, 1905.
Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.
 Suit by the Tulane University of Louisiana against the board of assessors and others to
enjoin the assessment of certain taxes. From a decree for complainants,
 defendants appeal. Amended and affirmed.
                                   (Syllabus by the Court.)

 The revenue law levying a tax on all property held by executors has reference to property
so held that is subject to taxation.

 Under Civ.Code, arts. 940-942, LSA-C.C., the universal legatee is, in the absence of
forced heirs, invested with the ownership and seisin of the universal legacy
 from the moment of the death of testator, and as consequence, if the property of such
legatee enjoys immunity from taxation, the property composing such universal
 legacy becomes exempt from taxation, and cannot be assessed to the succession while it
is in course of administration.

 Where the universal legacy is exempt from taxation, the part of the succession property
required for satisfying the particular legacies is not in like manner exempt,
 but such property is properly assessed to the succession, although it causes the universal
legatee to receive much less under the terms of the will.

The provision of the Constitution exempting from taxation "all the property of Tulane
University of Louisiana of whatsoever character" does not limit the exemption
to property whereof the University has the actual corporeal possession.

 Where a tax has been improperly enjoined, 10 per cent. on the amount of the tax,
penalties, and costs must be allowed as statutory damages.

 The rule that the property of a succession pending administration is owned by the
abstract being called "succession" means only that the property is so held for the
 purpose of administration, and not that the property is so held in hostility to or exclusion
of the ownership and legal seisin of the legal heir or of the universal legatee.

 Questions of the transmission and tenure of property in this state are governed
exclusively by the Civil Code. The common law has no application.




                                             16
Supreme Court of Louisiana.
                                   Floy Taylor BATEN
                                       v.
                                  Ruby Mae Baten TAYLOR.
                                     No. 63660.
                                     Oct. 8, 1979.

 In ancillary probate proceedings, testator's sister filed petition seeking to annul testator's
will and to set aside that portion of judgment of possession recognizing
 testator's wife as his legatee on ground that will contained prohibited substitution and
should therefore have been found to have been invalid. The 15th Judicial
 District Court, Parish of Lafayette, Allen M. Bibineaux, J., rendered judgment against
testator's sister, and the Court of Appeal, Third Circuit, 364 So.2d 226,
 reversed. The Supreme Court, Dennis, J., held that: (1) condition attached to wife's
bequest that she survive husband for 30 days was suspensive and not
 resolutory; (2) double condition legacy bequeathing testator's property to his nephews if
condition of wife's survival for 30 days was not fulfilled was not a
 prohibited substitution; and (3) survivorship clause did not suspend seizin of succession,
but was a valid disposition of ownership subject to suspensive condition.
 Reversed.

 Thirty-day condition of survivorship attached to wife's bequest was suspensive and not
resolutory since brief period stipulated and other provisions of the will
 indicated that testator's intention was to avoid multiple taxes and a transfer of succession
to his wife's heirs if she died closely following him.

 Double condition legacy whereby testator bequeathed property to his wife upon
condition that she survive him for 30 days or, if such condition was not fulfilled, to
 his nephews was not a prohibited substitution because it did not constitute a double
disposition, in full ownership, of same thing to persons called to receive it one
 after the other, did not impose upon first beneficiary a charge to preserve and transmit
the succession property, and did not establish a successive order that caused
 the property to leave inheritance of burdened beneficiary and enter into patrimony of
substituted beneficiary. LSA-C.C. art. 1520.

 It is not necessary for creation of a substitution that disposer make use of identical terms
in statute defining "substitution"; it suffices that charge to preserve and to
 deliver necessarily results from tenor of the disposition or that it is impossible to execute
the disposition without preserving and making restitution of the property
 given or bequeathed. LSA-C.C. art. 1520.

Penal and prohibitory laws should be strictly construed.

 When there are no forced heirs and universal legatee has been installed under a
suspensive condition, legitimate heirs acquire seizin, under codal order of priority,




                                              17
and remain provisionally seized of the succession until the condition is fulfilled. LSA-
C.C. arts. 887, 915, 940, 1607, 1609, 1613.

 Civil Code does not expressly or impliedly prohibit a universal legacy subject to a
suspensive condition; the Code permits a testator to impose any condition he
 pleases, whether suspensive or resolutory, provided they contain nothing contrary to law
or good morals; it makes no exception in case of universal legacy subject
 to a suspensive condition. LSA-C.C. arts. 1519, 1527, 1698, 1699.

 "Seizin" is not ownership, but is legal investiture of one class of heirs with possession of
succession upon death of the deceased, enabling heirs who acquire seizin,
 from instant of death, to bring all actions which deceased could have brought.

Ownership is transmitted by operation of law at moment of death to heirs and legatees
designated by the Civil Code, regardless of whether they have seizin of a
 particular succession or whether they can ever have seizin. LSA-C.C. arts. 870, 871, 940,
942, 943, 949, 1626.

 In order to be eligible for seizin, an heir must be either a forced heir, universal legatee or
legitimate heir, and latter of two classes acquires seizin only in default of
 those preferred to them; whether an heir acquires seizin depends, therefore, not on his
ownership of succession property, but on whether he is member of class of
 heirs entitled to seizin of a particular succession according to codal order of priority.
LSA-C.C. arts. 870, 871, 940, 942, 943, 949, 1626.

 Since ownership rights of an heir are vested from moment of the death, and seizin,
faculty of claiming and exercising possession, is acquired by either forced heirs,
 universal legatees or legitimate heirs at moment of death, there is no conflict between a
suspensively conditioned universal legacy and Civil Code's seizin provision.
 LSA-C.C. arts. 870, 871, 940, 942, 943, 949, 1626.

 Will provision bequeathing testator's property to his wife upon condition that she survive
him for 30 days, or if the condition is not fulfilled, to his nephews did not
 suspend seizin of the succession, but was a valid disposition of ownership subject to
suspensive conditions. LSA-C.C. arts. 870, 871, 940, 942, 943, 949, 1626.




                                              18
                        Queen Esther SIMPSON, Administratrix, Plaintiff and Appellee,
                                     v.
                         Virgie Lee COLVIN (Simpson), Defendant and Appellant.
                                  March 8, 1962.

 Summary ejectment proceeding by succession representative to compel defendant to
vacate premises allegedly belonging to the succession. From a judgment of the
 Thirtieth Judicial District Court, Parish of Vernon, Allen R. LeCompte, J., ordering
defendant to vacate premises, an appeal was taken. The Court of Appeal,
 Hood, J., held that succession representative was entitled to possession of the realty
which formed over one-half of value of estate even as against decedent's forced
 heirs in possession and even though succession representative did not need property for
any particular purpose and did not need to sell property to pay debts.
 Affirmed.

Succession representative was entitled to possession of realty forming over half of value
of estate even as against decedent's forced heirs in possession and even
 though succession representative did not need property for any particular purpose and
did not need to sell property to pay debts. LSA-R.S. 13:4911 et seq.;
 LSA-C.C.P. arts. 3001-3062, 3191 et seq., 3211, 3221, 3362, 3372, 4701 et seq.; LSA-
C.C. arts. 940-948, 942, 1609, 1610, 1671.




                                            19
.
                              Cary C. CATLETT et al., Plaintiffs-Appellants,
                                         v.
                            Mrs. Lorena E. CATLETT et al., Defendants-Appellees.
                                      Nov. 26, 1957.
Suit by surviving children of deceased father against their stepmother and stepbrother to
have set aside, as simulations, two transfers of realty to stepbrother or in the
 alternative that transactions were disguised as donations and should be annulled and set
aside or reduced to the disposable portion and for accounting for funds and
 movables alleged to have been separate property of father or of community of acquets
and gains. The Fourth Judicial District Court, Parish of Ouachita, D. I.
 Garrett, J., rendered judgment sustaining defendants' exceptions of no cause or of no
right of action. The plaintiffs appealed to the Supreme Court, which transferred
 the appeal, 233 La. 155, 96 So.2d 330. The Court of Appeal held that exceptions of no
cause or of no right of action could not be predicated on failure of
 surviving children to allege that they had been recognized as heirs of father and that by
judgment of court they had been sent and placed in possession of his estate
 and succession.
 Reversed and remanded.

In suit by surviving children of deceased father against their stepmother and stepbrother
to have set aside, as simulations, two transfers of realty to stepbrother, or in
 the alternative that transactions were disguised donations and should be annulled and set
aside or reduced to disposable portion and for accounting for funds and
 movables alleged to have been separate property of father or of community of acquets
and gains, exceptions of no cause or of no right of action could not be
 predicated on failure of surviving children to allege that they had been recognized as
heirs of father and that by judgment of court they had been sent and placed in
 possession of his estate and succession. LSA-R.S. 47:2401 et seq., 47:2413, subd. A;
LSA-C.C. art. 940 et seq.


 An heir can sue directly without having been recognized as an heir by the probate court
and can prove his heirship and his right to recover the property as an heir.
 *136 Hayes, Harkey & Smith, Monroe, for appellants.




                                            20

								
To top