California Property Taxes After Inheriting Court Order by elb10706

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									                                              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




                                                      1
“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




                                                     2
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 heirs hip – representation takes place only as provided in Art. 1493




                                                      3
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 1 st 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.
                                                     4
     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




                                                      5
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




                                                      6
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.




                                                       7
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




                                                     8
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.




                                                     9
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 powe r 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?




                                                      10
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 1 st degree would have been 23 y.o. or
      younger at the time of the decedent’s death
C. However, when a descendant of the 1 st degree predeceases the decedent, representation takes place in
      favor of any child of the descendant of the 1 st 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 1 st 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)




                                                     11
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)




                                                     12
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
                                                     13
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 putat ive
     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
                                                     14
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




                                                      15
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




                                                  16
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 3 rd
       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, 3 rd persons acquiring rights in
       immovables form the curator of the absent person’s property ought to be prote cted 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
                                                      17
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




                                                      18
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 va lue of things
       that has resulted from their encumbrance




                                                     19
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 t he 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




                                                    20
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

                                                       21
- 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/pos sessor.
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




                                                     22
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 possession        Irregular > 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 exerc ising
      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
                                                     23
      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 co uld transmit
      these to her heirs and legatees absent filing for probate in La.




                                                     24
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




                                                      25
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




                                                     26
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 administrato r

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 3 rd 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

                                                      27
- 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 pende ns




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 testa mentary
       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 1 st degree


       A – predeceased      B – unworthy
       C comes up through representation




                                                    28
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 o f 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.




                                                      29
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




                                                     30
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




                                                     31
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




                                                     32
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




                                                     33
Donative Renunciation Deemed Acceptance (Art. 960)
- a renunciation shall be deemed to be an acceptance to the extent that it causes the renounced r ights 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




                                                      34
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 s uccessor 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




                                                      35
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 desce ndants 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 prec lude 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




                                                      36
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




                                                    37
Mumford v Bowman (1874 – 138)
- express & implied acceptance – it must be made clear that it was the intention of the party assuming
       the quality of the heir to abide the disadvantages of accepting purely and simply as well as to enjoy
       the benefits that might arise from it
- express – the purport of the instrument must be clear that the party intended w/o legal formalities, to
       assume all the responsibilities of a pure and simple acceptance as well as all the advantages of
       heirship
- tacit – a matter of inference – but to warrant the inference it is necessary that the intention should be
       united to the fact, or rather be manifested by the fact, in order that the acceptance be inferred


Succession of Menedez (1959 – pg. 138)
- acts performed by appellees – instituted proceedings by petitioning the court to search for a will and to
      inventory the effects / executed the inventory / appeared & opposed a rule to show cause filed by
      the executrix why certain properties should not be removed from the inventory / opposed all of the
      final account w/ the exception of the payment & appraisal fees
- Holding – the appellees’ actions were not a tacit acceptance of the succession
- Reasoning – it is tacit when some act is done by the heir which necessarily supposes his intention to
      accept and which he would have no right to do but in his quality of heir


Butler v Butler (1968 – pg 139)
- ancestors sold property – sale was NOT recorded until a much later date
- b/t the sale & recordation the ancestors died
- the heirs sold their succession rights to someone else – this sale was recorded before the recordation of
       the previous sale (tacit acceptance – cannot sell unless they own it – accept)
- plaintiffs argue that the deed was subject to the various alienations of interests made in their
       successions by the heirs thereto to plaintiff & whose recordation primed that of the deed
Issue – Are the heirs, who accepted the ancestor’s successions unconditionally by selling their
       succession rights bound by the ancestor’s warranty of title as vendors regardless of non-
       recordation in the public records?
Law
       - the donation, sale or assignment one of the heirs makes of rights of inheritance is considered to
             be an acceptance of the inheritance
       - heirs who have accepted a succession are bound by the same obligations of their ancestor and are
             thereby estopped from claiming property to which the ancestor is bound in warranty to
             another
       - an heir is bound as his ancestor with respect to warranty
       - when one purchases succession rights, he acquires only such things as belong to the succession –
             the property conveyed did not form part of their successions
       - the defect of registering (not recording) shall NOT be pleaded b/t the parties who shall have
             contracted in such act, their heirs or assigns, who are as affectually bound by a sale made
             under private signature as if it were by an authentic act
Holding
       - Appellees are not 3rd parties and are not protected by the law pertaining to registry.


Martin Davie & Co. v Carville (1903 – pg. 142)
- H & W owned grocery store – H died
- W continued to run grocery
- Plaintiff creditor – argued W accepted unconditionally (tacitly) by continuing to run business therefore
      she is personally liable for debt – by her actions she ratified obligations
                                                    38
- Defendant wife – denied acceptance – acknowledged debt – at most liable for ½ of debt
- Holding – the widow, by accepting the community, unquestionably becomes liable personally for the
      payment of its debt but only to the extent of ½
- Reasoning – Wife was NOT heir – she had descendants – children were the heirs under community
      property law – wife could not accept because not an heir

acts of conservation / preservation of a business may be a tacit acceptance – b/c extra effort is needed?


Iberville Bank & Trust v Zito (1929 – pg 144)
- Plaintiff – sued to enforce mortgage & to obtain a personal judgment against the widow an children of
      the deceased mortgagor – asserted defendant tacitly accepted by taking possession of and
      exercising rights of ownership of the property of the succession - & they did not renounce nor
      accept by benefit of inventory
- Defendant – admitted debt - denied that they accepted / renounced succession
- Law
      - a widow or an heir who has not renounced w/in the legal delays is NOT presumed to have
           accepted so as to be liable individually in a suit on a debt of the community or the succession,
           w/o being first sued to compel an acceptance or renunciation
      - the right of an heir remains in suspense pending his decision to accept or renounce
      - while he may be considered an heir for the purpose of being cited & standing in judgment in a
           suit against the succession or in an action to compel an acceptance or renunciation, he is not
           presumed, and cannot be held, personally liable for the debts of the succession
      - a personal action lies in favor of the creditors of a succession against the heirs or those who
      stand in place of the heirs – unenforceable until an heir has accepted or instituted an action to
      compel to declare whether he accepts or renounces


Reed v Taylor (1988 – pg 145)
- grandmother died – left house – son occupied house – son never opened or renounced mother’s
      succession
- son died – grandson moves into house - defendant grandson wants to accept grandmother’s succession
      & not his father’s
- plaintiff sued for recovery of money for expenses for taking care of son
- defendant argued – cannot accept grandmother’s succession by transmission b/c did not accept father’s
      estate
Court
      - son tacitly accepted his mom’s (g/m) succession by occupying home
      - grandson tacitly accepted father’s succession unconditionally by occupying home & exercising
             rights of ownership therefore he is personally liable for his father’s debt by acc epting his
             succession

old law – Benefit of Inventory
      1) requires administration
      2) requires liquidating administration
      (if heir wants assets in kind – Benefit of Inventory is of no help)




                                                     39
9:1421 pg. 148
- benefit of inventory does NOT require writing
- unconditional acceptance requires express statement in writing
- personal liability is intertwined with unconditional acceptance
?- reasoning – intent > limitation of liability does not require administration or liquidation of assets

New Articles on Acceptance repealed RS 9:1421

NO LONGER BENEFIT OF INVENTORY


?Late Creditors – file action after property is distributed
     - go first against legatees – those who have been paid – they must all share in debt
     - sums not sufficient to pay creditor > direct actin against other creditors
     - go against legatees 1st then other creditors

Succession
     1) pay creditors
     2) distribute property to legatees


Aurienne v Mt. Olivet (1953 – pg. 155)
- deceased survived by 2 brothers & 1 sister
- 2 brothers expressly renounced by authentic act in favor of their sister
- one of the brothers died and his descendant forced heirs claimed that the renunciation in favor of the
      sister had been a tacit acceptance & a donation of the property to her and that this donation
      infringed on their legitime
Law
      - renunciation of an inheritance, unlike a donation, is NOT subject to reduction at the instance of
      the forced heirs of the heir who has renounced
      - no one can be compelled to accept a succession, whether acquired by testament or operation of
      law
Issue – was the instrument executed by the brothers a renunciation or a donation?
Holding – Renunciation
Reasoning – the renunciation was made in favor of the only remaining coheir
Court – if there had been other coheirs, or one other coheir, not named as a beneficiary of the
      renunciation, the renunciation would not have been made to all of the coheirs indiscriminately,
      and, therefore the so-called renunciation would have been an acceptance of the successiona nd in
      turn a donation of it (susceptible to reduction)



Sun Oil Co. v Tarver (1951 – pg 158)
- issue – old Art. 1030 – prescription of 30 years
- overruled Generes
- Holding – the 30 year prescription could only be plead by coheirs and their transferees who had
      accepted the succession or by the succession against a forced heir
in 30 years become stranger to succession – lose both rights (acceptance / renunciation)




                                                      40
Lee v Jones (1953 – pg 162)
- father dies > leaves 2 minor children
- property in question acquired while married – community property
- father’s succession was never opened – property remained in possession of wife & 2 children
- son stays –farm work
- daughter marries & goes off
- mother dies –succession was never opened – both children are majors
- son then occupies land w/ family – paid taxes, farmed land
- daughter’s heirs seek a claim for part of the property against son’s heirs
Law
      - minors unconditionally accept by operation of law – once turn majority then have 30 years to
      renounce
      - the plea of prescription is available only to the succession or its representative or a coheir who
      has timely accepted the succession and that it cannot be invoked by a trespasser or one holding
      land or other succession property w/o semblance of right or title
Holding
      - sons heirs are entitled to plead prescription against daughter’s heirs – must show son accepted
      successions of his father & mother & that the daughter & heirs failed to do so w/in the allotted
      time
      - son tacitly accepted father’s & mother’s succession by his continuous occupancy and use of the
      land
      - daughter accepted father’s succession by operation of law b/c she was a minor
      - sustained plea of prescription as to the mother’s succession – no evidence that daughter or heirs
      tacitly accepted w/in 30 years

Today – minority does NOT suspend prescription


Kinney v Waddell (1965 – pg 170)
- the non-accepting heirs were at all times fully aware that the La land formed part of the estate property
       of the decedents (had knowledge)
- the 2 non-accepting heirs were majors at the time of the deaths – these heirs died before the 30 years
       prescribed
- heirs of the original non-accepting heirs that died contended that they accepted by operation of law
- the plaintiffs or ancestors had the right to come in and accept the succession’s rights tot he La land at
       any time w/in the 30 years whether or not the ex parte judgment of possessin had been signed
       based upon the perjured affidavit
Law
       - fraud may prevent the running of the prescription of art. 1030
       - if the fraud is of such a nature that those pleading the prescription or their ancestors in title have
       done some fraudulent act which effectually prevents the claimant from asserting his rights timely
Court
       - there was no evidence that the ancestors had been misled to their detriment
       - the right of the non-accepting heirs to accept or reject the succession was then transmitted to their
       heirs
Holding
       - the original decedents’ successions are not legally considered as having been accepted by reason
       of the minority of those to whom was transmitted the rights of the original non-accepting heirs to
       the decedent’s estate
       - the minority at most suspended the running of the 30 year prescription – the full 30 years from
       the original decedent’s death had elapsed w/o the plaintiffs or their ancestors in title having
       accepted the decedent’s succession
                                                      41
Reasoning
     - when a major heir of the decedent has not previously accepted the decedent’s succession and
     then dies before the 30 years has prescribed, a minor heir of that non-accepting heir is not by
     reason of his minority considered to have accepted the original decedent’s succession


TODAY - PRESCRIPTION RUNS AGAINST ABSENTEES AND INCOMPETENTS, INCLUDING
   MINORS AND INTERDICTS, UNLESS EXCEPTION IS ESTABLISHED BY
   LEGISLATION.


Succession of Breeland (1980 – pg 173)
- decedent died leaving wife & 2 daughters – all the property belonged to the community
- the 2 daughters executed an act of renunciation of the succession
- one of the daughters executed an act in which she purported to revoke the renunciation in accordance
       w/ old Art. 1031 and to accept the succession of her father
- surviving spouse than filed a petition seeking to have herself placed into sole possession of the estate
       and was met w/ opposition by the daughter
- daughter claimed the renunciation was induced by fraudulent misrepresentation – she stated she signed
       the renunciation in exchange for title to land in St. Tammany at cost but her mother offered her the
       land at a price far exceeding the cost
- mother denies misrepresentation – claims renunciation was a result of an agreement of the children to
       renounce the succession when one of the parents dies to leave everything in control of other parent
- alternatively the daughter contends that she revoked her renunciatio n before the wife accepted the
       succession so that her revocation was effective
- wife continued to manage the property & affairs of the community after decedent’s death
- Issue – whether an act of renunciation by the daughter was valid and if so whether a purported
       revocation of her renunciation was effective so that appellant is entitled to be placed into
       possession of a portion of the succession
Law
       - an heir who has renounced may still accept a succession if it has not been accepted by other heirs
       - tacit acceptance – the intent of the person must be considered along w/ their actions – must
       distinguish b/t acts of ownership & acts of preservation
Holding – sustained judgment recognizing wife the sole heir of the decedent’s succession – the
       daughter’s renunciation was valid and the revocation is ineffective b/c the wife tacitly accepted


Hebert v Brugier (1991 – pg 175)
Acceptance w/ Benefit of Inventory




                                                    42
                                   COLLATION - Chapter 9 pg. 179

Collation (Art. 1227)
- the supposed or real return to the mass of the succession which an heir makes of property which he
       received in advance of his share or otherwise,
- in order that such property may be divided together w/ the other effects of the succession

Comments:
- intention – parents want to treat children equally
- ONLY descendants must collate

Collation by Descendants (Art. 1228)
- children or grandchildren, coming to the succession of their fathers, mothers or other ascendants
- must collate what they received from them by donation inter vivos, directly or indirectly
- they can NOT claim the legacies made to them by such ascendants UNLESS the donations and
      legacies have been made to them expressly as an advantage over their coheirs, and besides their
      portions
- takes place whether the children or their descendants succeed to their ascendants as legal or as
      testamentary heirs, and whether they have accepted the succession unconditionally or with benefit
      of inventory


Reasons for Collation (Art. 1229)
- the obligation of collating is founded on the equality which must be naturally observed b/t children &
       other lawful descendants, who divide among them the succession of their father, mother and other
       ascendants
- presumption that what is given or bequeathed to children by their ascendants was so disposed of in
       advance of what they might one day expect from their successions

Comments:
Reasons > EQUALITY
1) what was given to children was a disposition of future succession
2) always presumed unless expressly forbidden (manual gifts – tacit)



Presumption in Favor of Collation (Art. 1230)
- collation must take place
- whether the donor has formally ordered it, or has remained silent on the subject
- for collation is always presumed where it has NOT been expressly forbidden

Comments:
- exception – manual gift – tacit dispensation (Gomez & Skye)


Express Exclusion of Collation; Extra Portion (Art. 1231)
- but things given or bequeathed to children or other descendants by their ascendants, shall NOT be
       collated IF the donor has formally expressed his will that what he thus gave was an advantage or
       extra part
- UNLESS – the value of the object given exceed the disposable portion – in which case the excess is
       subject to collation

                                                       43
Method of Declaring Dispensation from Collation (Art. 1232)
- Declaration that the gift or legacy is made as an advantage maybe made in:
      1) the instrument where such disposition is contained
                - even afterwards
                - by authentic act
      2) in donor’s last will & testament
- a declaration of dispensation from collation made in the last will and testament of the donor shall be
      effective as a dispensation from collating donations made both before and after execution of said
      testament - UNLESS expressly stated to the contrary


Sufficiency of Declaration (Art. 1233)
- the declaration that the gift or legacy is intended as an advantage or extra portion
- may be made in other equivalent terms – provided they indicate, in an unequivocal manner, that such
       was the will of the donor


Reduction of Donations Exceeding Disposable Portion – Calculation of Legitime (Art. 1234)
- if, upon calculation of the value of advantages thus given, and of the other effects remaining in the
       succession, such remaining part should prove insufficient to give to the other children their
       legitimate portion, the donee would then be obliged to collate the sum by him received, as far as
       necessary to complete such portion, though he would wish to keep the donation and renounce the
       inheritance
- and in his calculation of the legitime portion, the property given or bequeathed by the ascendants, not
       only to their children, but even to all other persons, whether relations or strangers, must be
       included


Persons Entitled to Demand Collation (Art. 1235)
- Right to demand collation is confined to:
      - descendants in the 1 st degree who qualify as forced heirs
- only applies to gifts made w/in the 3 years prior to decedent’s death
- valued as of the date of the gift

Comments:
- limits scope by applying collation only to descendants of the 1 st degree who qualify as forced heirs
- a grandchild is NOT permitted to demand collation even if he qualifies as a forced heir
- presumption – a parent wants to treat all of his children equally
- collation is NOT required – it may be dispensed with


Renouncing Heir’s Right to Donations NOT Exceeding Disposable Portion (Art. 1237)
- if children, or other lawful descendants holding property or legacies subject to be collated, should
       renounce the succession of the ascendant, from whom they have received such prop erty, they may
       retain the gift, or claim the legacy to them made, without being subject to any collation
- if the remaining amount of the inheritance should not be sufficient for the legitimate portion of the
       other children, including the succession of the deceased the property which the person renouncing
       would have collated had he become heir, he shall then be obliged to collate up to the sum
       necessary to complete such legitimate portion


                                                    44
Grandchildren; Collation of Donations made by Grandparent AFTER death of parent (Art. 1238)
- to make descendants liable to collation they must appear in the quality of heirs to the succession of the
      ascendants from whom they immediately have received the gift or legacy
- therefore, grandchildren, to whom a gift was made or a legacy left by their grandfather or grandmother,
      AFTER the death of their father or mother, ARE obliged to collate, WHEN they are called to the
      inheritance of their grandfather or grandmother, jointly w/ the other grandchildren, OR by
      representation with their uncles or aunts, brothers or sisters of heir father or mother, because it is
      presumed that their grandfather or grandmother had intended to make the gift, or leave the legacy
      by anticipation


Grandchildren; Right to Donations Made by Grandparent DURING Life of Parent (Art. 1239)
- gifts made or legacies left to a grandchild by his grandfather or grandmother during the life of his
       father, are always reputed to be exempt from collation
- the father, inheriting from the grandfather, is NOT liab le to collate the gifts or legacies left to his child



Grandchildren; Collation of Donations made by Grandparent to Parent (Art. 1240)
- the grandchild, when inheriting in his own right from the grandfather or grandmother is not obliged to
      refund the gifts made to his father, even though he should have accepted the succession
- BUT if the grandchild comes in ONLY by right of REPRESENTATION he must collate what had
      been given to his father, even though he should have renounced his inheritance


Collation by Great Grandchildren and More Remote Descendants (Art. 1241)
- what has been said in the 3 preceding articles, of grandchildren inheriting from their grandfather or
     grandmother, must be understood of the great-grandchildren and other lawful descendants called to
     inherit from their ascendants either in their own right or by representation



Collation; Succession of Donor (Art. 1242)
- collation is made ONLY to the succession of the donor



Expenditures Subject to Collation (Art. 1243)
- collation is due for what has been expended by the father and mother to procure an establishment of
       their legitime descendant coming to their succession, or for the payment of debts



Expenditures NOT Subject to Collation (Art. 1244)
- neither the expenses of board, support, education and apprenticeship are subject to collation,
- nor are marriage presents which do NOT exceed the disposable portion


Manual Gifts (Art. 1245)
- the same rule is established w/ respect to things given by a father, mother or other ascendant, by their
       own hands, to one of their children for his pleasure or other use

                                                       45
Profits from Contracts w/ Ascendant (Art. 1246)
- the heir is NOT bound to collate the profits he has made from contracts made w/ his ascendant to
      whom he succeeds
- UNLESS the contracts at the time of their being made gave the heir some indirect advantage


Share of Partnership with Ascendant (Art. 1247)
- NO collation is due for a partnership made w/o fraud w/ the deceased
- if the conditions of the partnership is proved by an authentic act


Advantages other Than Donations (Art. 1248)
- the advantage which a father bestows upon his son, though in any other manner than by donation or
       legacy is likewise subject to collation
- when a father has sold a thing to his son at a very low price, or has paid for him the price of some
       purchase, for or has spent money to improve his son’s estate, or forgiveness of a loan, all that is
       subject to collation


Wages for Services to Ascendant (Art. 1249)
- the obligation of collation does NOT exclude the child or descendant coming to the succession of his
       father, mother or other ascendant, from claiming wages which may be due to him for having
       administered the property of the ascendant or for other services


Immovable Destroyed While in Possession of Donee (Art. 1250)
- immovable property, given by a father, mother or other ascendant, to one of their children or
        descendants, and which has been destroyed by accident, while in the possession of the donee and
        without his fault, previous to the opening of the succession is NOT subject to collation
- if it is by the fault or negligence of the donee that the immovable property has been destroyed he is
        bound to collate to the amount of the value which the property would have had at the time of the
        opening of the succession



Methods of Making Collations (Art. 1251)
- collations are made in kind or by taking less


Collation in Kind (Art. 1252)
- when the thing which has been given is delivered up by the donee to be united to the mass of the
     succession


Collation by Taking Less (Art. 1253)
- when the donee diminishes the portion he inherits, in proportion to the value of the object he has
     received, and takes so much less from the surplus of the effects as is explained in the chapter
     which treats of partitions




                                                     46
Movables or Immovables (Art. 1254)
- in the execution of the collation it must first be considered whether the things subject to it are
       movables or immovables



Collation of Immovables (Art. 1255)
- the donee had it in his possession at the time of the partition
- he has the choice to make the collation in kind or by taking less
- UNLESS the donor has imposed on him the condition of making the collation in kind, in which case it
       can not be made in any other manner than that prescribed by the donor, UNLESS it be w/ the
       consent of the other heirs who must be all of age, present or represented in this state



Immovables Collated in kind; Reimbursements for Improvements (Art. 1256)
- donee who collates in kind an immovable, which has been given to him
- MUST be reimbursed by his coheirs for the expenses which have improved the estate, in proportion to
     the increase of value which it has received thereby



Immovables Collated in Kind; Allowance for Expenses of Preservation (Art. 1257)
- the coheirs are bound to allow to the donee the necessary expenses which he has incurred for the
       preservation of the estate, though they may not have augmented its value



Immovables Collated in Kind; Removal by Donee of Works Erected for His Pleasure (Art. 1258)
- NO reimbursement is due to him
- he has the right to take them away, IF he can do it without injuring the estate, and leave things in the
      same situation they were at the time of the donation


Kinds of Expenses Made on Immovable Property (Art. 1259)
- expenses made on immovable property are distinguished by 3 kinds:
      1) Necesssary – those which are indispensable to the preservation of the thing
      2) Useful – those which increase the value of the immovable but without which the estate can be
      preserved
      3) Expenses for Mere Pleasure – those which are only made for the accommodation or
      convenience of the owner or possessor of the estate and which do not increase its value


Deterioration and Damage to Immovable – Liability of Donee (Art. 1260)
- the donee, who collates in kind the immovable given to him is accountable for the deteriorations and
       damage which have diminished its value, when caused by his fault or negligence

Destruction of immovable After Election to Collate in Kind (Art. 1261)
- if w/in the time and in the form prescribed in the chapter which treats of partitions, the donee has made
      his election to collate in kind the immovable property which has been given to him, and it is
      afterwards destroyed, without act or fault of the donee, the loss is borne by the succession, and the
      donee shall not be bound to collate the value of the property
                                                      47
Partial Destruction of Immovable AFTER Election to Collate in Kind (Art. 1262)
- if the immovable be only destroyed in part, it shall be collated in the sate in which it is


Destruction of Immovable AFTER Election to Collate by Taking Less (Art. 1263)
- Immovable is destroyed AFTER the donee has declared that he wishes to collate by taking less, the
     loss is his, and he is bound to take less from the succession, in the same manner as if the property
     had not been destroyed


Creditor’s Rights on Immovable Collate in Kind (Art. 1264)
- when the collation is made in kind, the effects are united to the mass of the succession as they may be
       burdened w/ real rights created by operation of law or by onerous title
- the donee is accountable for the resulting diminution of the value of the immovable


Preservation of Creditor’s Mortgage Rights AFTER Partition (Art. 1265)
- in the case mentioned in the preceding article, if the property mortgaged, which has been collated in
       kind, falls by the partition of the donee, the mortgage continues to exist thereon as if it had never
       been collated
- but if the donee receives for his portion other movables or immovables of the succession, the creditor
       shall have a privilege for the amount of his mortgage on the property which has thus fallen to his
       debtor by the partition


Immovables in Excess of Disposable Portion; Collation in Kind (Art. 1266)
- when the gift of immovable property made to a lawful child or descendant, exceeds the portion which
     the ascendant could legally dispose of, the donee may make the collation of this excess in kind, if
     such excess can be separated conveniently


Immovables in Excess of Disposable Portion; Collation by Taking Less (Art. 1267)
- if the retrenchment of the excess over and above the disposable portion can not conveniently be made,
       the donee is bound to collate the excess by taking less, as is hereafter prescribed for the cases in
       which the collation is made of immovable property given him otherwise than as advantage or extra
       portion

Collation in Kind; Retention of Immovable until Reimbursement of Expenses (Art. 1268)
- the donee who makes the collation in kind of the immovable property given to him, may keep
       possession of the same until the final reimbursement of the sums to him due for the necessary and
       useful expenses which he has made thereon, after deducting the amount of the damage the esta te
       has suffered through his fault or neglect is before provided


Collation by Taking Less; Valuation of Immovable (Art. 1269)
- when the donee has elected to collate the immovable property given him by taking less on the part
     which comes to him from the succession , the collation must be made according to the value which
     the immovable had at the opening of the succession, a deduction being made for the expenses
     incurred thereon, in conformity with what has been heretofore prescribed



                                                      48
Voluntary Alienation or Negligent Loss of Immovables Subject to Collation (Art. 1270)
- if the donee has voluntarily alienated the immovable property which has been given him, or if he has
       permitted it to be seized and sold for the payment of his debts, or if it has been destroyed by his
       fault of negligence, he shall not be the less bound to make the collation of it, according to the value
       which the immovable would have had at the time of the opening of the succession, deducting
       expenses, as is provided in the foregoing Article



Forced Alienation of Immovables Subject to Collation (Art. 1271)
- if the donee has been forced to alienate the immovable property he shall be obliged to collate by taking
       less the price he has received from this sale and no more
- as for example, if the donee shall be obliged to submit to a sale of the immovable for some object of
       public utility or to discharge a mortgage imposed by the donor or because the immovable was held
       in common w/ another person who has prayed for the sale I order to obta in a partition of it


Sale by donee and subsequent destruction of immovable subject to collation (Art. 1272)
- if the immovable property which has been given has been sold by the donee, and afterwards destroyed
       by accident in the possession of the purchaser, the donee shall only be obliged to collate by taking
       less the price he received from the sale


Collation by Taking Less; Coheirs’ Election of Collation by Sale or In Kind (Art. 1273)
- when the collatin is made by taking less, the coheirs to whom the collation is due have a right to
     require a sale of the property remaining to the succession in order to be paid from the proceeds of
     the sale not only the collation which is due them but the part which comes to them from the surplus
     of these proceeds
- UNLESS they prefer to pay themselves the amount of the collation due to them by taking such
     movables and immovables of he succession as they may choose, according to the appraisement
     which serves as a basis to the partition



Failure of Coheirs to Make Timely Election (Art. 1274)
- if the coheirs to whom the collation is made by taking less, wish that the effects of the succession be
       sold, in order that they may be paid what is due them – they are bound to decide thereon in 3 days
       from their being notified of the motion of the donee to that effect, before the judge of the partition
- otherwise they shall be deprived of this right and shall be considered as having consented to receive
       payment of the collation due them in effects and property of the succession or otherwise form the
       hands of the donee


Payment of Collation by Sale of Succession Effects (Art. 1275)
- when the coheirs, thus notified, require the sale of the effects of the succession to pay themselves the
     collation due them, the sale shall be made at public auction in the same manner as when it is
     necessary to sell property held in common, in order to affect partition




                                                      49
Payment of Collation w/ Property of Succession (Art. 1276)
- if the coheirs to whom the collation is due prefer to b e paid the amount thereof in property and effects
       of the succession or are divested of their right to require the sale of these effects, they shall be paid
       the amount of the collation in movables, immovables and other effects of the succession, in the
       same manner as is prescribed in the chapter which treats of partitions
- but in no case will these heirs be obliged to receive in payment credits of the succession



Payment of Collation by Donee Where Succession Effects Insufficient (Art. 1277)
- if there are no effects in the succession, or not sufficient to satisfy the heirs to whom the collation is
       due, the amount of the collation, or the balance due on it shall be paid them by the heir who owes
       the collation



Time and Security for Payment (Art. 1278)
- this heir shall have 1 year to pay the sum thus due by him
- if he furnish his coheirs w/ his obligation payable at that time w/ 8% interest and give a special
       mortgage to secure the payment thereof, either on the immovable property subject to the collation,
       if it is in his possession, or in want thereof, on some other immovable property which may suit the
       coheirs



Rights of Coheirs against Defaulting Heir; Foreclosure of Special Mortgage (Art. 1279)
- if the heir has been allowed to furnish his obligation as mentioned in the preceding article fails to fulfill
       his engagement at the expiration of the year granted to him, the heirs, in whose favor this
       obligation has been made or their representatives, have a right to cause the property mortgaged to
       them to be seized and sold, without any appraisement, and at the price offered at the first exposure
       for sale



Privilege of Seizing Coheirs on Proceeds of Mortgage Sale (Art. 1280)
- if the property thus seized and sold is the same which was subject to the collation the coheirs seizing or
       their representatives, shall be paid the amount of their debt due for the collation by privilege and in
       preference to all the creditors of he donee, even to those whom he may have mortgaged the
       property for his won debts or engagements, previous to the opening of the succession, saving to
       these mortgage creditors their recourse against other property of the donee



Alienation of Immovable by Donee by Onerous Title; Creation of Real Right in Immovable by Donee
       or Operation of Law (Art. 1281)
- if the donee who owes the collation has alienated by onerous title the immovable given to him the
       coheirs shall NOT have the right to claim the immovable in the hands of the transferee
- if the donee who owes the collation has created a real right by onerous title in the immovable given to
       him or such right has been created by operation of law since the donee received the immovable,
       the coheirs may claim the immovable in the hands of the donee but subject to such real right as has
       been created – in such case the donee and his successors by gratuitous title are accountable for the
       resulting diminution of he value of the property
                                                       50
Purchaser’s Retention of Immovable Upon Payment of Collations (Art. 1282)
- the 3rd purchaser or possessor of the real estate subject to collation may avoid the effect of the action of
       revendication by paying to the coheirs of the donee to whom the collation is due, to wit:
       the excess of he value of the property above the disposable portion, if he donation has been made
       as an advantage or extra portion, or the whole of the value thereof, if he donation has been made
       without this provision by fulfilling in this respect all the obligations by which the donee himself
       wa bound towards the coheirs


Collation of Movables (Art. 1283)
- the donee is NOT permitted to collate them in kind
- he is bound to collate for them by taking less, according to their appraised value at the time of the
       donation - if there be any annexed to the donation
- in default thereof, recourse may be had to other evidence to establish the value of these movables at the
       time of donation


Donation of Movables as Absolute Transfer of Rights (Art. 1284)
- therefore the donation of movables contains an absolute transfer of the rights of the donor to the donee
      in the movables thus given


Collation of Money (Art. 1285)
- may be made in money or by taking less, at the choice of the donee who is bound to decide thereon, in
     the same manner as is prescribed for the collation of immovable property



Collation of Movables or Money by Taking Less; Payment in Money (Art. 1286)
- if it be movables or money, of which the donee wishes to make the collation by taking less, he has the
        right of compelling his coheirs to pay themselves the collation due to them in money and not
        otherwise, if there by sufficient in the succession to make these payments with


Collation of Movables or Money by Taking Less; Payment in Succession Effects (Art. 1287)
- but if there is not sufficient money in the succession to pay such heirs the collation due to them they
       shall pay themselves by taking an equivalent in the other movables or immovables of the
       succession, as is directed with respect to the collation of immovable property



Payment of Collation by Donee Where Succession Effects Insufficient (Art. 1288)
- in case there be no property or effects in the succession to satisfy the collations due for movables or
       money given, the donee shall have for he payment of the sum due to his coheirs the same ter ms of
       payment as are given for the payment of the amount of collations of immovable property and
       under the same conditions as are before prescribed




                                                      51
Jordan v Filmore (1929 – pg 183) Action for Reduction
- Miles died testate
- 2 forced heirs
      1) Reilly (aka – Shelby) – daughter
      2) Jordan – granddaughter – only child of predeceased daughter
- Shelby intervened and claimed the whole estate of her mother
- Jordan – sought annulment of the will & prayed that Jordan & Reilly should be recognized as forced
      hiers & divide equally
Law –
      Art. 1495 – 1 forced heir > forced portion = ¼ / 2 forced heirs > forced portion = ½
      Art. 888 – intestate > take by heads (rep. > take by roots)
Holding
1) will valid
2) action for reduction – NOT collation (b/c did not involve donation inter vivos)
3) Reilly = legitime & forced portion = ½ + ¼ = ¾ / Jordan = forced portion = ¼


1) Donation mortis causa is not collatable
2) donation inter vivos – presumption in favor of collation
3) Donation mortis causa – presumption is against collation – only have to collate if find intention of
     donor is to collate (words that donor wanted to treat children equally = collation)


??Succession of Higgins (1973 – pg 188)
- disposition of a legacy lapsed by the death of the co- legatee who predeceased his mother
- must decide rights of the surviving co- legatee in the lapsed legacy vis-à-vis those of the 7 children of
      the deceased legatee who are now forced heirs by representation in the succession of the testator
- decedent left her estate – by olographic will – “share & share alike” to her 2 sons
Holding – son can either accept the legacy & renounce the legal succession or collate the legacy and
      share as a forced heir in the legal succession
court – death of the son prior to that of his mother – caused the lapse of her legacy to him – this lapsed
      legacy now forms an intestate part of the succession – the decedent’s estate being part testate &
      part intestate
Reasoning – “share & share alike” – decedent expressed her intention not to favor either of the sons


Lapsed Legacy
- can’t carry out legacy b/c legatee predeceased & will does not state that his portion goes to someone
      else (no alternate)
-? b/c representation does NOT apply to testate – it lapsed


Fictitious Collation v Real Collation
Fictitious Collation
- not giving anything materially back – just reducing amount heir is getting




                                                     52
Succession of Gomez (1955 – pg 194)
- gave kids donation inter vivos – kids are forced heirs
- will gave disposable portion to grandkids (legatees not forced heirs)
- did not have real collation b/c enough $ in the estate
- forced heirs argued that legatees cannot demand collation nor can they benefit from it
- decedent’s intent – the forced heirs should receive only their legitime and that the legatees should
       receive the rest of her property
issue – when adding the fictitious collation do you add it to just the legitime or to the active mass?
Holding – add it to active mass – determine via Art. 1505
Reasoning – legitime & the disposable portion = active mass / can’t have 2 of each

Determine Disposable Portion
- deduct the debts & add in donations inter vivos multiply by percentage


Succession of Fakier (1988 – pg 201)
Issue – whether the grandchildren are entitled to actual collation of the ring and the annuity proceeds
- decedent made to her daughter an inter vivos donatin of a ring valued at $10,000
- 5 annuity policies purchased by the decedent which named both of her daughters as beneficiaries in the
      event of her death
- grandchildren seeking collation are the children of decedent’s predeceased son
Law:
      - collation may be “in kind” or by “taking less”
      - immovables & cash – donee generally has the option of taking less or collating in kind
      - movables – donee must collate by taking less
      - presumption in favor of collation – takes place in every instance where it has not been expressly
             forbidden
      - donor may expressly dispense w/ collation (by instrument or will)
      - actual collation > equalization of inheritance received by descendants
      - fictitious collation > pertains to the calculation of the legitime of the forced heirs
      - legitime is dependant upon the total value (active mass) of the succession
      - active mass is calculated in the manner set forth in Art. 1505
      - only to the extent that the value of the object given does not exceed the disposable portion may
             the testator dispense w/ the necessity of collation for any gift designated as an advantage or
             extra portion (Art. 1231)
      - if after calculating the active mass it is evident that an inter vivos donation made by the decedent
             has impinged upon the legitime (i.e. not enough assets in the succession at the time of death
             to satisfy the forced portion) then the forced heirs may bring an action for reduction
Holding
      1) ring is not exempt from collation b/c it is a manual gift – nor did the decedent dispense w/
      collation – the will alone does not constitute clear & convincing evidence that the decedent’s tacit
      disposition of collation (Gomez)
      2) annuities are not subject to actual collation – they were not transferred by inter vivos donation




                                                     53
Collation & Forced Heirship
Who has to collate – “children / grandchildren coming into the succession” (Art. 1228)
Right to demand collation – descendants / 1st degree / qualify as forced heirs

If older descendant does have to collate inter vivos donation > but is not taking anything in succession –
      not a legatee in will
Argue > not coming to the succession therefore don’t have to collate (Art. 1228)

Just b/c receive donation inter vivos – doesn’t mean coming into succession
Renounce succession > keep donation inter vivos b/c not coming into succession
UNLESS > donation inter vivos impinges on legitime

“coming into the succession” (art. 1228)
- intestate heirs
- legatees – accepting

Difference b/t collation & reduction!

Hypo: grandchild comes into grandfather’s succession by representation (father predeceased)
      Argue > not in 1st degree
      Argue > stand in place of predeceased heir > same degree & right


Renouncing heirs may retain their gifts b/c they are no longer heirs
- will have to collate up to the sum necessary to complete the legitime portion if the remaining amount
       of the inheritance is not sufficient for the legitime portion


Art. 1238
      – to make descendants liable to collation – they must appear in the quality of heirs to the
      succession of the ascendants from whom they immediately have received the gift or legacy b/c it is
      presumed that their g/p had intended to make the gift or leave the legacy by anticipation
Hypo: Grandparent makes inter vivos donation to grandchild > g/c’s father predeceased
      BUT father was alive at the time of the donation inter vivos
      - do not have to collate
      **must be heir at the time inter vivos donation is made
      **determined at the time the g/p makes the donation inter vivos

       If father is alive > advance / anticipation theory does not apply


                       G/P

                   A         B

                   C         D


     C & D in fact – nearest degree & priming class > by own right
     AND by representation b/c A & B predeceased
     ?argue – don’t have to collate b/c not 1st degree

                                                    54
Art. 882 Representation in direct line of descendants
- Representation articles – as long as predeceased come in by representation NOT own right


Grandchildren; collation of donations made by grandparent to parent (Art. 1240)
- g/c inherited in own right – don’t have to collate gifts made to father
- g/c come in by representation only – MUST collate what had been given to his father



Rents & Collation
- benefiting descendant
- from the date of death > collate
- do NOT apply reduction rule



Ellis v Benedict (1981 – pg 210)
- donation inter vivos of immovable property - rental income from property – immovable that involves
     fruits
- at what point in time do you account for the rents for collation? Before death or only after death?– no
     rents were collected prior to decedent’s death > court was not asked to decide that issue
- defendants argued that art. 1515 should apply – restoration of fruits by donee in action for reduction
Holding
     1) reduction rules should NOT apply to collation b/c they are 2 different theories
     2) defendant owes for rents after death of donor


Art. 1248 Collate advantage laid on child
    Ex. decedent sold something to heir at low price / paid for something for him / forgiveness on debt

Argue > any advantage from decedent > collate
       Probably should not apply during decedent’s lifetime b/c you want to even up after death?

Only way to get out of collation > renounce succession
Will have to reduce if legitime is hinged


Grandchamps v Delpeuch (1844 – pg 211)
- plaintiff sought to have certain sums of $ his sisters & coheirs received in advance of hereditary shares
     of his father’s & mother’s successions collated
- 2 sisters > $3,000 dowry > they renounced successions
- 1 sister > $1,500 & $150 dowry > accepted by benefit of inventory
- plaintiff accepted by benefit of inventory
- Art. 1237 – can renounce & don’t have to collate – unless not enough to cover legitime
- father’s succession – insolvent – insufficient to pay his debt – estate only consisted of donation inter
     vivos to daughters
Holding
     1) 2 sisters had to collate
     2) 2 sisters received $1,000 each / sister & brother received $2,000 each
(had the 2 daughters accepted by benefit of inventory they would have gotten $1500 each)
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Note pg. 213
- heir refuses to seek action for collation – creditors of the heir canNOT exercise the right
(same goes for action for reduction b/c it is a personal right that only runs to the heir)

Intestate – creditors of the heir can accept for heir w/ court approval to the amount of the debt



Succession of Hurd (1986 – pg 213)
- decedent died intestate – survived by 3 children
- argued certain sales of property were donations in disguise (did not pay ¼ of property)
- son went bankrupt
- trustee of bankruptcy sought action for collation
- state law – collation right is absolutely personal to heir
- Federal Bankruptcy Code – no property can be shielded from trustee
Holding
     1) collation action governed by federal law
     2) Supremacy Clause - Bankruptcy Code – trustee can bring action for collation & reduction


Art. 1242
Problem – community property – ½ H & ½ W
Question – when kids collate – does he collate all to the father or divide equally b/t F & M
> agreement among the heirs as to which succession to collate & how


Succession of Hoffpauir (1984 – pg 228)
- 5 children brought action for collation against 6 th child (advantage through sales)
- 6th child & father purchased farmland as co-owners
- after F died > ½ community & ½ owned outright
- M conveyed her ½ to 6th child through credit sale (2% interest at market price)
Holding – since the price paid for each sale of immovable property was well within the fair market value
     as estimated by the court defendant did not have to collate – no disguised donation (defendant paid
     more than ¼ the market value of the land)

1) Look at the price at the time of the transfer to determine if it is an advantage.
2) Donation in disguise subject to collation.
3) Still very low price = advantage
4) Determine how much he has to collate at the date of death.


Look at the price at the time of the transfer to determine if it is an advantage.

Determine how much he has to collate at the date of death.


Valuation of Immovable - Collation by Taking Less
- value at date of death – amount due to be collated

Immovable – donee can donate in kind or by taking less
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Jordan v Filmore
- could argue tacit dispensation from collation > donation in disguise shows intent to give advantage

Gomez
- donation inter vivos by manual gift may be exempted from collation if heir can show by facts and
    circumstances that donor did not intend for him to collect
- donor wrote letter state he wanted donee to have it


Succession of Moore (1980 – pg 232)
- presumption in favor of collation
- market value at date of death – show how much to be collated
- determine whether forced heir paid a very low price for immovable > prove market value at date of
    trasaction
- competing appraisers > question of credibility
- preponderance of the evidence



Succession of Delesdernier (1966 – pg 233)
- judgment of possession > put heirs in possession > closes succession
- heirs found out after judgment of possession they had action for collation
- plaintiff alleged nullities in the acts of purported transfer of certain property NOT in the succession
    proceedings
- plaintiff alleged property belonged to decedent was omitted from the inventory
Holding
    1) Not a nullity > incompleteness in the succession proceedings > amend judgment of possession
    2) canNOT reopen succession on ground of collation
    3) canNOT nullify judgment on ground of collation
    4) collation canNOT be demanded after a succession has been closed by a judgment of possession
    5) if there are nullities in the succession proceedings and the judgment is attacked and set aside b/c
         of nullity – right to demand collation would NOT be precluded
Reasoning
    - if judgment of possession was a nullity – legal effects would not flow from it


Succession of Trouard (1973 – pg 234)
- heirs accepted unconditionally – judgment rendered recognized children as sole heirs & sent them into
     possession
- later a testament was discovered which required one of the children to collate an inter vivos donation
- heirs demanded judgment of possession be set aside & succession reopened as testate succession
- plaintiff argued judgment should be annulled on the ground that it was obtained by “ill practices”
Holding – plaintiffs are not entitled to have the judgment annulled
Reasoning
     - collation is barred after the heirs unconditionally accept a succession and obtain judgment of
     possession
     - trial court has much discretion in determining whether a judgment should be annulled b/c of fraud
     or ill practices


“ill practices”
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- shown that the enforcement of judgment would be unconscionable and inequitable and would deprive
    the litigant who seeks the annulment of legal rights to which he is entitled
- may be annulled even though no actual fraud or intentional wrong has been committed in the
    procurement of the judgment


Succession of Webre (1965 – pg 235)
- plaintiff sought to annul as simulations separate conveyances of land by the decedents to 2 other
    children > alternatively prayed for collation
- proceedings instituted more than 10 years after death of decedent
- defendant asserted validity of conveyances & prescription
- absolute simulation – inpresciptable b/c nothing happened
- donation in disguise – simulation but not an absolute simulation
Holding
    - prescription - right to demand collation > no judgment of possession > 10 years from date of death
    - prescription runs from the death of he person to whose succession collation is to be made


argue – actual time for collation is at partition as long as partition is imprescriptable – collection should
    be imprescriptable



Succession of Simms (1979 – pg 241)
- grandmother donated inter vivos to father
- grandmother died
issue – does the property given to the father by g/m have to be collated by son
- son argued coming up by own right therefore he doesn’t have to collate
Court
    - grandson inherited from his g/m in his own right as legatee under her will therefore collation was
    not required
Reasoning
    - came to succession by own right – don’t have to collate
    - representation – have to collate

Collation confined to expenditures & gifts from parents to children
Reasoning
   1) equality among forced heirs
   2) accepted advantage



Values of gift
Art. 1235 – real collation – donation inter vivos – movable/immovable – value at date of gift
Art 1269 valuation does not apply b/c of last sentence in Art. 1235
Art. 1505 (A) – fictitious collation

Grandchild succeeds through renunciation/unworthiness
- comes up as if predeceased – quasi-representation
argue both sides – whether g/c has to collate parents’ gifts



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Succession of Gomez (1953 – pg 243)
- deceased supported daughter by giving monthly stipends totally $19,200
- no express dispensation from collation
- g/c (children of p/d son) demanded collation
- plaintiff argued daughter does have to collate b/c no express dispensation of collation (Art. 1232)
- daughter contended $ was for services rendered > or manual gift exempt by Art. 1245
Holding – daughter must collate stipends
Reasoning
    - Art. 1232 – dispense from collation expressly in instrument or will
    - problem – manual gift – no instrument needed for donation – requires no formality (Art. 1539)
    - stipends = manual gift
    - Art. 1232 – not contemplating manual donatin – literally does not make exception for manual gift
    - no evidence introduced as to intention of donor – only argued 1245 exempts all manual gifts
    - Art. 1539 is exception to Arts. 1534 & 1538
    - Art. 1245 – “pleasure” – describes motive used for giving gift – contemplating those things usual
    for parent to give child w/o thought or regard to his having to account for them to his coheirs –
    rebuts presumption of collation – not given to give advantage to the child


Dictum
1808 Code > didn’t have Art. 1539 – did have Art. 1232 - could not have been talking about manual
   gifts in collation b/c manual gift came in 1825 Code > did not intend 1232 to apply to 1539 (b/c no
   1539)
   no sense to require no formalities of manual gifts and then require formal act to dispense from
   collation.




Succession of Skye (1982 – pg 248)
- read Gomez as tacit dispensation from collation is allowed for manual gifts – dispensation by intention
- birthday card sent by decedent – planned to give $10,000 check to plaintiff for birthday but decided to
     hold as to $ to collect extra income
- tacit – not what she said but what she did – inter vivos donation in form of manual gift
- letters expressed plaintiff was given $10,000 b/c decedent had given many gifts & done things for
     other children > showed intent that she was not intending plaintiff to collate > in fact she was giving
     plaintiff to make her equal to her siblings
Holding
     tacit dispensation from collation is allowed for manual gifts




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