SUCCESSIONS FALL 1999---PROFESSOR SWAIM

Note: Successions about intestate successions. Must have dead person to have a succession

Articles:870---Intestate succession is distributed according to blood relations. Exceptions: a. adoption and b. spouse.871---Succession is the transmission of the estate of the deceased to his successors. Note: Is not a legal entity, but a process.872---Estate of a deceased means his property, obligations and rights left after the decedent’s death.873---Kinds of successions.874---Testate successions result from wills.875---Intestate successions come about from the absence of a will. Property is distributed by operation of law.876---Testate successor called a legatee. Intestate successor called an heir.877---Can accept or not accept patrimony. Hereditary right of succession is one of choice. If heir renounces, he is not responsible for debts of the decedent.880---Intestate succession defined again in favor or blood relations and spouses not judicially separated. Descendants---Children, grandchildren, etc.Ascendants---Parents, grandparents, etc.Collaterals---People that share a common ancestor. Includes spouses and adoption.888---Descendants succeed to property of ascendants. Equal portions and by heads if same degree. Degree = generation. If descendents are of same degree, they take by heads, i.e. equal portions. Not restricted to community property. Have to worry about that distinction after 888.889---Devolution of property if spouse has no descendents and leaves no spouse. Talking about HALF of community property because spouse already owns half of it.

I. SuccessionsA. Is a general assessment by state of what reasonable person would do w/property after death.B. No real distinction among types of property in succession.

1. There is a distinction between separate and community property.2. Separate property is that owned by a person prior to marriage or that gained gratuitously

during a marriage. 3. If acquired during marriage and not separate property, it is community property.

C. Supreme Court struck articles forbidding taking by illegitimates. Now have only very short time to establish relation to deceased. May now actually have fewer illegitimates able to inherit than before law was struck down.

Articles:891---If person has both parents & siblings, but no spouse, naked ownership goes to siblings w/usufruct to parents. Usufruct is joint and successive. Includes child affiliated by legitimation or acknowledgment. 892---If no parents or descendents, bros. And sisters take full ownership. If no siblings, but parents alive, they then take full ownership. 893---Half blood siblings. Full take more than halfs.894---If no descendants, siblings or parents, spouse takes separate property. This is change in law.895---Nearest ascendant takes to exclusion of more remote degrees.896---If no ascendants left, other collaterals inherit in closest degree. (Share common ancestor, but not from same lineage. Ex. Cousins, uncles, etc.)897---Ascendants inherit immovables donated to descendants by the ascendants who died w/o posterity if property is found in succession (meaning property has not been alienated). Person retains right of reversion.898---Person inherits w/all mortgages. W/o posterity means w/o descendants. Does not apply if valid will is executed. 899---Among successors, nearest in relation to deceased is the one to inherit.

900---# of generations is called a degree. Adopted children are treated as blood relations. Propinquity of consangunity=nearest blood relation takes.901---Direct line is series of degrees between persons who descend from one another. 902---If no relations or spouse not judicially separated, then estate belongs to the state.

II. RepresentationA. Is a legal fiction.

1. Puts person representing in same legal place as person represented. 2. @ moment of death, all rights are fixed.3. If a deceased’s child dies, he may be represented by other descendents. 4. Representative gets place, rights and degree or the person represented.

B. Takes place ad infinitum in direct line of descendents. (art. 882)C. Three ways to come to succession

1. In own righta. By virtue of blood relationship.b. Is the general rule.

2. Representationa. Gives higher degree to representative else his line would be excluded from

succession.b. Take place of higher degree ascendant who predeceased the deceased.

3. Transmissiona. Direct heir dies prior to exercising his right to accept or renounce.

D. Representation does not take place in favor of ascendants (art. 883)E. Representation in collateral line permitted for descendents of siblings of deceased.

1. Courts interpret this to mean ad infinitum. (art. 884)F. Representation is made by roots.

1. means that person limited to taking what person represented would have gotten had he not predeceased. (art. 885)

2. If represented party has more than one heir, all heirs are limited to what represented party could take.

3. Prevents other heirs from being prejudiced.4. Contrast w/inheritance in own right which is made by heads.

G. Only predeceased persons may be represented (art. 886)1. Purpose is to remove prejudice concerning order of death.

H. One renouncing succession of ascendant may still represent that person in another succession.

Cases:Succession of the Misses Morgan, 23 La. Ann. 290 (La. 1871): All four sisters die in accident. No descendents nor ascendants. Had bro. And sister and children of dead half-brother. Half brother owed M’s money. Children renounced half-brother’s succession and, thus, say they do not owe father’s debt to succession. Court ruled that children did not have to pay the debt saying that in some circumstances, representatives may have more rights than children represented. They did not incur the debt, thus, they would be treated as ordinary debtors if made to pay the father’s debt. This interpretation of greater rights is somewhat erroneous. Children would have had to pay the debt under the law of K’s, not successions.

III. Opening of SuccessionA. Not concerned w/judicial opening; concerned w/moment of death. All rights fixed as of that

moment.B. Also concerned commorientes---order of death of family members that die in same event.

1. Was suppressed in 1999 amendment. 2. If could not tell who died first, would use these rules to figure out who takes. 3. Now have to apply Article 31 in the Natural and Judicial Persons section.

a. One person claiming right that accrued to another person must prove that the person existed when right accrued.

b. If you cannot prove existence, you walk away.

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c. If 2 heirs fight over who died first and cannot carry burden of proof, each heir can inherit one of the successions, but not both.

d. Act 1421 did away w/the assumptions of who died first, which is one of the more radical changes to successions law.

Cases:Succession of Langles, 29 So. 739 (La. 1901): Langles and daughters had home in France, but lived in NO. They went to France on a ship and wrote reciprocal wills prior to leaving. Both had in the will that if both died, money was to go to build ladies’ hospital in NO. Heirs dispute this. They died when ship sank. Under commorientes, it goes by age, so daughter would have been presumed to have survived longer. This means she would take mom’s estate and her heirs would get both. Court ruled that wills did not change anything because they were reciprocal. Commorientes applied and relatives got succession. Incorrect decisioin because both wills clearly expressed that hospital was to get money if neither survived. Court said it could not take because it did not exist @ the time of death, thus, it had no capacity. Should have left money to trustees and instructed them to build hospital.Paline v. Herroman, 29 So. 2d 473 (La. 1946): Paline died leaving two sons. Sons renounce in favor of mother. Mother gave land to sons after her death. Herroman bought land thinking title was clouded. One son’s daughter intervenes saying she was entitled to take after renunciation. Court held that surviving spouse should have taken in this instance, giving it to daughter. This case was incorrectly decided though, because niece should have taken. If one renounces, he takes himself out of the picture. Was probably just an attempt to clear the title. Kinnon says spouse elevated to same status as blood relations, thus, making spouse the “next degree”.

Articles: (from new Act.)Many of the changes only affect terminologyArt. 934: Succession occurs @ death of person. Now not concerned w/judicial declaration of death. (What is commencement?)Art. 935: Universal successors acquire ownership of estate and particular legatees acquire ownership of their things. Universal successors continue juridical person of decedent. This happens immediately @ death. If there is no succession representative, only the universal successor may represent the decedent.Art. 936: Possession also falls @ death. (possession in law) Universal successors continue possession of decedent w/all advantages and defects. (If leasing property to someone, must continue the lease) Particular successor may commence new possession for purposes of prescription. (or continue the old one, whichever is more advantageous). Thus, if decedent in bad-faith possession, and successor in good faith possession, he may start new prescription period. Art. 937: Rights of a successor are transferred @ his death, whether or not he accepted the rights, or whether or not he knew about the accrual of them.Art. 938: Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interest in the estate. Upon qualification of a succession representative, the exercise of those rights are subject to the administration of the estate. (Under article 3211 of the Code of Civil Procedure, the succession representative is deemed to have possession of all property of the succession and is obligated to enforce all obligations in its favor. Thus, acts of successor are subordinate to the power and authority of the succession representative. Before judgment of possession issued, estate taxes must be paid. Note:One can sell an interest in a succession. Possession rights do not change, only the rights.

IV. SeizinA. Property passes immediately w/no gaps. B. Two aspects

1. ownership 2. Possession3. Originally allowed successors to act as owners.4. Has hierarchy: forced heirs, universal legatees, and then heirs.5. Article 936 is the seizin article.

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C. Paline confused degree w/class. By going to spouse, succession thereby skipped classes. Law says descendents, not just children.

D. Art. 964 of the revision fixes this.1. Says if person renounces, property goes to those who would have take as if successor

predeceased the deceased. 2. 964 legislatively overrules Paline.

E. Surviorship periods.1. Article 1521 applies. Validates alternate legacy in will. Allows 90-day survivorship period.

Cases:Tulane University v. Board of Assessors, 40 So. 445 (La. 1905): Decedent left property to P and others. Tulane has arrangement that all of its property is tax exempt. P claims to be universal legatee. Tulane argues that seizin rights exempt it from property taxes and all property fell to it by right of seizin. Court ruled that property left to Tulane not taxable but all other property does. Seizin has to do w/possession, not ownership. Tulane did have seizin of the particular legacies, but legatees had ownership, thus, non-Tulane property is taxable.Simpson v. Colvin, 138 So. 2d 438 (La. App. 3d Cir. 1962): Blue Heaven Bar inhabited by illegitimate children. Some evidence exists that decedent acknowledged them. Administratrix brought suit to have them evicted. Collision between forced heirs and possessory rights of administratrix. Administratrix won case and expelled children w/Court saying that La. C. Civ. Pro. Art. 3211 lodges possessory rights in succession representative. Representative represents the creditors as well as the heirs. 3211 says rep. May collate property so as to effectively administer it.Baten v. Taylor, 386 So. 2d 333 (La. 1979): Testator made will bequeathing property to wife. Testator’s sister upset because she is left out. Will has 30 day suspensive condition, saying if she does not survive for 30 days after decedent’s death, estate should go to decedent’s nephews. LA does not allow surviorship periods under art. 1520. This would violate law of seizin. Supreme Court used a double suspensive condition to get around this. If this was a double suspensive condition, it would suspend universal legacy to wife. Estate would go to no one for 30 days, thus, violating seizin. Court said was allowed and compatible w/seizin because if no forced heir and universal legatee suspended, seizin falls to intestate heir. After 30 day period passes, wife gets all. Seizin went to sister for 30 days and then to wife. Words do not have to expressly define condition. It may be implied. All wife had to do was live for 30 days to fulfill suspensive condition. Ownership was hers immediately, seizin happened 30 days later.

Prince v. Hopson, 89 So. 2d 128 (La. 1956): Hopson married Prince (2nd), but 1st marriage never nullified. Husband and wife 2 live together for 21 years until he dies. Wife 2 tries to mortgage property and then learns about Wife 1. Court held that property was in both communities, thus, both were entitled to it. Half went to child of 1st wife and half of legal wife’s half split between legal wife and putative wife. Decided on equity grounds. Both husband and wife were in good faith so civil effects accreted to both spouses.

Note: Putative marriage is one that is bigamous. Is an absolute nullity. Exception made to protect children and good-faith (innocent) spouses. Civil affects (inheritance among others) accrete in benefit of good faith spouse. If both spouses are in good faith, split like in Prince on equity grounds. If one has knowledge, split is the same but on different grounds. Under City of Philadelphia, ½ of legal wife’s half would go to her according to successions law. Other ½ would go to putative spouse under a delictual tort theory, i.e. hubby owed putative wife for wronging her.

V. Usufruct of Surviving Spouse (art. 890)A. Originally controlled by article 916.

1. Said if man died intestate, wife holds usufruct over ½ of community property inherited by descendents.

2. Gave naked ownership to children w/usufruct to parent until death or remarriage. 3. Was changed in 1981. Until then, children had to be of the marriage to be burdened

w/the usfruct. Now there is no distinction between legitimate and illegitimate children in regards to the surviving spouse usufruct.

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B. 890 usufruct is a huge burden on practice of forced heirship. If usufruct placed on community property, forced heirs are then only naked owners.

C. Article 1499 (donations section) says spouse may grant usufruct over all property and can shorten the time period of the usufruct. 1. If forced heir not child of surviving spouse and it affects his legitime, he may ask for

security in regards to the usufruct.

Case:Succession of Carlisi, 47 So. 2d 42 (La. 1950): Man dies and leaves naked ownership of community property and usufruct to wife. Since not an 890 usufruct (not by operation of law), wife required to post security because not dispensed w/in will. Court upheld the paying of security saying simply that man could have dispensed w/security in will, but chose not to.VI. Forced Heirship

A. Provisions taken from French and Spanish law, which borrowed the concept from Roman law. Redactors obsessed w/land ownership and did not want to break up property or estates.

B. Applies to descendents of the 1st degree 24 years of age or younger. (1493 applies)1. Applies to all children whether illegitimate or adopted. 2. A person is 23 until they reach the 24th birthday. 3. Exceptions to age requirement

a. Descendents of 1st degree regardless of age w/physical infirmity or mental incapacity.

b. Uses same language as interdict articles. Have them declared intedicts. c. These are not conjunctive requirements. One or the other will suffice. d. Must be permanently incapable of taking care of their persons or administering the

estate of the decedent.C. Representation and Forced Heirship (1493(b))

1. When descendent of 1st degree predeceases, representation takes place ONLY if descendent of 1st degree was 23 years of age or younger @ time of decedent’s death.

D. Forced heirship is not supplementary to what one gets in intestate succession. It is only a guaranteed minimum. Forced heirship questions only arise in intestate successions, because law abides by forced heirship in intestate successions.

E. If fraction used to calculate legitime is greater in testacy than in intestacy, the fraction used will be that of intestacy. 1. Only applies if more than four children and only one forced heir.

F. Usufruct of Surviving Spouse and Forced Heirship1. These are in direct conflict. Surviving spouse has been seeing rights expanded. 2. If decedent dies intestate and leaves community property, usufruct ends @ either death or

remarriage. 3. Art. 1499 allows granting of usufruct through will.

a. Can be for life or shorter period. b. Covers community and separate property.c. Is not impermissible burden on legitime. d. If usufruct is tesamentary, it does not end @ remarriage. e. Decedent can grant perfect ownership over all disposable property in succession f. Forced heirs only protected by having naked ownership over legitime. g. If usufruct given for life in testament, surviving spouse can take legitime into

subsequent marriages.4. Forced heir may request security when usufruct affects legitime and surviving spouse is

not his parent. May also request if it burdens separate property. Is true even if surviving spouse is parent of child.

5. Action of reduction is sanction of forced heirship.

Case:Succession of Chauvin, 257 So. 2d 422 (La. 1972): Man died and left property to son w/usufruct to wife. Wife remarried. Son wants usufruct lifted, and man did not grant usufruct for life in will. Court said that simply giving wife usufruct w/o specifying time period does no more than is what in 890. Husband only

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confirming what would happen by operation of law. Same as if he died intestate. Usufruct lifted. Will must expressly say that usufruct granted for life.

6. Now, usufruct is for life unless specifically granted for shorter time. Silence on time = lifetime grant.

7. 1499 legislatively overruled Chauvin.

Case:Succession of Waldron, 323 So. 2d 434 (La. 1975): Deceased gave usufruct and ownership over disposable portion to wife for life. Left to child naked ownership of legitime. Man wanted to give as little as possible to daughter. Court held that this was a permissible burden on child’s legitime because testator did not give more to spouse than allowed by law. Further, usufruct over legitime will end if mother remarries. Attempting to give more to spouse than allowed is not adverse disposition. If Court applied Chauvin strictly, Waldron would have been a testamentary usufruct over the legitime which is not allowed under the Code. Child would have then gotten perfect ownership of the legitime.

8. Under Waldron, testamentary usufruct considered legal until marriage when it changes to testamentary. Until intestate article violated by remarriage, is a legal usufruct.

9. Waldron is an example of courts favoring the spouse. Under 1499, Waldron would be a confirmation and spouse would be allowed to keep usufruct through remarriage.

10. Legislature also overruled Waldron by 1499.VII. Absent Persons (source of much litigation in Successions)

A. If someone is gone for a long period of time, it raises the issue of possible death. 1. Could be because of length of time missing or circumstances surrounding it. 2. Raises the question as to existence of the person, thus, his capacity to take under

Succession law. B. Significance of declaring someone dead is that it opens a succession.

1. Article 934 says succession opened @ death of person, which, by inference, includes judicial declaration of death.

2. If person is missing, but not long enough to be declared dead, a curator can be appointed to administer missing person’s property.

C. Person cannot lose ownership through absence. 1. Owner has to be restored to property if he returns.

Articles:

Art. 47: An absent person is one that has no representative in the state and his whereabouts are not reasonably obtainable. Court may on petition and showing of necessity, appoint a curator.Art. 48: Curator has power of administration and disposition. May sell the property, but has to act in the interest of the absent person. When absent person is married, curatorship is limited to his separate property.Art. 49: Absent person may still make juridical acts. Acts of disposition of immovables not effective against 3rd persons & curator unless filed in registry of court. Thus, if absent person sells property and does not file it, it does not void a subsequent sale of his property.Art. 50: Curatorship terminates of right when absent person appoints representative w/I state, he reappears, or he dies.Art. 51: Curatorship terminates when absent person declared dead. If absent person has no heirs, curator must bring proceeding to declare death.Art. 52: Curator bound to account for administration of absent person’s property upon termination of the curatorship to either the absent person or his successors.Art. 53: When curatorship ends, he must file notice of same in the curator proceeding. Acts by curator after termination are valid toward third persons unless notice has been filed in the proceeding. Art. 54: Person missing for five years is presumed dead. Upon petition by interested party (heirs, legatees, etc.), judge shall declare person dead and determine the date of commencement of absence and date of death.

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Art. 55: Declaration of death opens succession on the date of that declaration. Estate shall devolve IAW law of Successions. Art. 56: If clear and convincing evidence arises changing date of death, judgment shall be amended accordingly. Persons previously recognized as successors bound to restore estate to new successors but may keep the fruits acquired.Art. 57: If person declared dead reappears, he is entitled to be restored to property in position found (including burdens). If heirs have alienated property onerously, missing person can recover value of property or the diminution resulting from the encumbrance. (No recourse against 3rd parties for property)Art. 58: If person declared or presumed dead and succession opens in his favor, he cannot be a successor. Property devolves as if that person were dead at the time of the opening of the succession. Opens the possibility of representation. Comment © applies. Art. 59: If the person in 58 reappears, he is entitled to get inheritance as it is found from successors and transferees by gratuitous title. May also recover proceeds of things alienated and any diminutions.

Note: A filiation action is one to prove biological offspring of decedent. Must be established by legitimation, formal acknowledgment, or filiation judgment. Very tight timeline. Informal acknowledgment no longer valid. If biological relationship proven, illegitimate takes the same as legitimate.

VIII. Unworthiness (New articles)A. Heir does something so repugnant so as to justify the loss of succession rights.

1. Heir is unworthy if he kills, attempted to kill, or is “judicially determined” to have tried to kill the decedent. (art. 941)

2. Suit must be brought @ opening of succession.3. “Judicial determination” does not require criminal conviction.4. Pardon does not affect declaration of unworthiness.

B. Action may be brought by one who inherits in common or in place of one declared unworthy. (art. 942)1. Must have out-of-pocket interest.

C. Person cannot be declared unworthy if he can prove reconciliation or forgiveness. (art. 943)1. Measure of sufficient conduct to justify reconciliation is left to the courts.2. Burden of proving is on heir.

D. Prescription of 5 years from death intestate decedent or 5 years from date of probate of will for testate decedent. (art. 944)

E. Effects of Declaration of Unworthiness (art. 945)1. Loss of succession rights.2. Must return legacy along w/all fruits and products. Must also account for impairment in

value by encumbrance of failure to act as a prudent administrator.3. If person loses possession of property by transfer or other way that is his fault, he must

account for its value as of the time of the transfer. Also liable for failure to act as prudent administrator and diminution.

4. If person alienates by onerous K and no fraud exists, 3rd person immune. If property donated, it may be annulled if in the hands of donee or heirs.

5. Successor may not act as administrator or representative.F. If person declared unworthy, succession rights devolve as if heir predeceased decedent if died

intestate. If testate, they devolve IAW provisions of testamentary accretions. (art. 946)1. Not really representation, but treated as predeceased.2. Quasi-representation in unworthiness and renunciation.

IX. Acceptance (old articles)A. Law accepts for minor heirs w/benefit of inventory. No one can be compelled to accept a

succession. (art. 977)B. To accept succession, it is necessary that person die. (art. 978)

1. If person falsely reported dead, all acts are void and this does not make the person the heir.

C. A person cannot accept or renounce until the right has fallen to him. (art. 979)1. ex. 2nd degree descendent may not accept until 1st degree descendent has renounced.

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2. If a will exists, successor cannot accept until legatee renounces.D. A person must know of the death of the decedent to accept or renounce. (art. 980)

1. Person ignorant of decedent’s death cannot accept or renounce even though the succession is open.

E. Intestate heir’s acceptance is null if a will is later found and he was ignorant of its existence. (art. 981)

F. Succession accepted under error of title is void (art. 982)G. Acceptance is valid if heir knows of opening of succession and is called to it. (art. 983)

1. Heir does not need to know the portion that is left to him.2. Acceptance still valid if successor is mistaken as to the degree of relationship which he

bore to deceased.H. Acceptance or renunciation is null if done before succession is opened and it shall have no

legal effect. (art. 984)1. Person can still accept when right to do so is complete. (person really dies)

I. Heirs under conditions may not accept while it is unfulfilled. (art. 985) 1. True even if heir is ignorant that the condition has happened.

J. Heir may accept all or portion of succession, but may not prejudice 3d party creditors. (art. 986)

K. Effect of acceptance relates back to moment of death (art. 987)L. Simple acceptance may be either express or tacit. (art. 988)

1. Is express if written or from some judicial proceeding.2. Is tacit if some act done by heir which necessarily presupposes acceptance and could only

be done by an heir.3. Ex. Selling dead father’s car. 4. Any act of ownership is sufficient.

M. Express acceptance must be written w/intent of obligating one’s self as heir. (art. 989)1. Simple note or verbal declaration may not be binding.

N. Intent must be tied to fact to constitute tacit acceptance. (art. 990)O. If person disposes of thing unknowingly belonging to succession, person does not tacitly

accept because such act does not show intent to accept. (art. 991)P. Some facts necessarily suppose will of heir, and others may be interpreted differently. Some

facts presuppose intent to accept, such as possession and disposition of things knowingly belonging to succession. (art. 992-3)

Q. To act as owner is to make one’s self heir. (art. 994)1. Exception is some act done to preserve the thing in good quality.

R. Person does not accept if disposing of things as administrator even though he be heir. (art. 995)

S. It is necessary to distinguish acts of ownership from acts of administrator. Time when these acts occur should be taken into consideration. (art. 996)

T. Supervisory or administrative acts are not acceptance unless person takes on quality of heir. (art. 997)

U. Person must show preservation or administration by protesting before notary or in petition if judicial proceeding involved. (art. 998)

V. Acts of piety such as burial or funeral expenses do not constitute acceptance. (art. 1001)W. Donation, sale, or assignment of inheritance rights shows intent of acceptance. (art. 1002) X. Renunciation in favor of other heirs constitutes acceptance even if gratuitous. (art. 1003)Y. Persons lacking K capacity cannot accept succession (art. 1004)

1. Must be done by curator.Z. If heir dies prior to exercising rights, his heir may exercise them. (transmission) (art. 1007)AA. Coheirs may accept in any way they choose. (art. 1008)

1. Coheirs may accept in different ways (unconditionally, inventory, etc.)BB. Heir cannot challenge acceptance unless fraud or violence invovled. (art. 1009)CC. Succession may be abandoned to creditors w/no personal liability if successor has not

alienated any property and if he renders good faith account to them. (art. 1010)DD.Simple acceptance (art. 1013)

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1. Effect is such that it obligates successor to pay all debts even from his own funds as if he made the debts personally unless he makes inventory before accepting. (superseded by New Act.)

Cases:Mumford v. Bowman: Have to make it clear that will abide by negative aspects of acceptance as well as benefits.Butler v. Butler, 212 So. 2d 213 (La. App. 2d Cir. 1968): Child sold succession rights before act of sale on property was recorded. Succession rights sale recorded. Court held that sale of succession rights was act of acceptance, thus, successor must warranty land. Purchaser only bought what was coming to heir.Martin Davie v. Carville, 34 So. 807 (La. 1903): Widow continues business after husband dies. Creditors want to say that wife accepted unconditionally by continuing business. Court held that each spouse responsible for half of the debts. Spouse, upon acceptance, only responsible for ½ of the debt. IOT not burden wife’s community w/debt, she may renounce the community.Iberville Bank & Trust v. Zito, 125 So. 435 (La. 1929): Man dies and wife continues farm. Man brings suit against succession and heirs personally. Court held that mortgagee could not sue heirs when they did no act that showed acceptance. Would be against principle that people have absolute right to accept or renounce. Court corrected to say that all of mortgage, instead of ½ should be awarded to P. Reed v. Taylor, 522 So. 2d 1262 (La. App. 4th Cir. 1988): Grandmother dies and lived w/son. Son was sick and then died. III wants to skip father’s succession and get grandmother’s succession because she was solvent. If father continued living in house and acted as owner, he accepted grandmother’s succession. If III accepted father’s estate, he is liable for father’s debts. By moving into house, III tacitly accepted father’s succession and is liable for debts.

EE. R.S. 9:1421 changed law of acceptance. 1. Allows acceptance w/benefit of inventory to be the norm. 2. This type of acceptance requires no writing, whereas unconditional acceptance now does.3. Case says legislature did not intend to require administration, but as mere limitation of

liability. 4. This was repealed by New Act effective July 1999

a. Can no longer accept under benefit of inventory, but same result is achieved. FF. Acceptance of Succession by Creditors (art. 1071)

1. Done when heir renounces succession to prejudice of creditors. 2. Applies to heir’s creditors, not decedent’s.

X. New Acceptance ArticlesA. Successor not bound to accept any or all of succession. (art. 947)

1. May accept part and renounce part.B. Minor successor deemed to accept, but tutor may renounce if allowed by Court. (art. 948)

1. Since word “deemed” used, this is irrebuttable presumption.2. Provision of renunciation by tutor is change in law. Could be done for tax purposes.

C. Successor cannot accept or renounce before death of decedent. (art. 949)D. Acceptance only valid if death known to person and he knows he is heir. (art. 950)E. Premature acceptance is absolute nullity (art. 951)F. Acceptance or renunciation in intestacy null if will probated. (art. 952)

1. Presumes validity of will.2. Same is true if will is declared void.

G. Suspensive conditions may be accepted either before or after fulfillment of the condition. (art. 953)1. Represents change in law. 2. Previously had to wait until suspensive condition was filled because right did not exist

until that happened.H. Acceptance relates back to time of death of decedent. (art. 954)

1. Renunciation deemed to never have had rights to succession.2. Contains language that recognizes a person may accept or renounce part of a succession.

(“to the extent”)I. Succesor may assert creditor rights whether he accepts or renounces. (art. 956)

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J. Acceptance may either be “formal” or “informal”. (art. 957)a. Changes names from “express” & “tacit”. b. Formal when written or in court.c. Informal when successor acts as owner.

K. Is not a sign of acceptance if successor acts on property he does not know belongs to the succession. (art. 958)

L. Acting as owner shows intent to accept, but administrative acts do not. (art. 959)1. Ministerial duties are not informal acceptance.

M. If one renounces and rights of others are affected, considered act of informal acceptance. (art. 960)1. I renounce in favor of….2. Only treated as acceptance insofar as renunciation in favor of the third person is different

than the rights that would otherwise devolve.N. Acceptance obligates successors to pay the debts IAW applicable law. (art. 961)

1. Since this revision limits liability, R.S. 9:1421 is repealed.2. Now if take part of succession, only responsible for debts up to the value of the thing

received @ time successor received it.O. Heirs liable for estate debts, but only up to value of property received @ time of receipt. (art.

1416)P. In absence of renunciation, successor presumed to accept. (art. 962)

1. For good cause, successor may be compelled to accept or renounce.a. Good cause is not defined. Up to court to decide this issue.b. Article also does not define WHO could bring suit. Presumed to be anyone

w/interest. c. 1st sentence is rebuttable presumption.

2. Absence of prescriptive period?a. May not be necessary since insertion of words “for good cause shown”.

3. Second sentence is change in law. XI. Old Renunciation Articles

A. Person is presumed to accept if he does not renounce (art. 1014)B. Succession can only be renounced under same conditions in which it can be accepted. (art.

1015)C. Cannot accept or renounce conditionally. (art. 1016)D. Renunciation must be made before notary and two witnesses (notarial act) (art. 1017)E. Successor must have capacity for alienation of property to renounce. (art. 1018)

1. Interdict cannot renounce w/o permission of judge and curator.F. Person may accept or renounce through agent if he is appointed for that reason. (art. 1020)G. Creditors of heir renouncing can apply to accept if renunciation is to their prejudice. (art.

1021)H. Portion that the heir renounced goes to coheirs of same degree; if none, it goes to the heirs of

the next degree. (art. 1022)I. Coheir may refuse renounced portion while keeping his own portion. (art. 1023)J. Accretion is for benefit of accepting heirs. Renouncing heir has no claim to any other portion

renounced by coheirs. (art.. 1026)K. Accreting heirs take renounced portion in same way they take accepted portion.L. Heirs who embezzle or hide property of succession are unconditional heirs and shall have not

part of the concealed property. M. Faculty of accepting or renouncing succession becomes barred by the lapse of time required

for the longest prescriptive rights for immovables. (30 years) (art. 1030)1. Had to either wait for renunciation or passage of 30 years before succession fell to next

degree of successors.2. Now can apply to court to compel acceptance or renunciation if good cause shown. 3. Thus, this article may not be needed.

Cases:

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Generis v. Bowie Lumber Co.: Parent died. D went on land as trespasser and cut trees. Someone came in @ year 35 and wants to accept succession. D pleads 1030 prescription. Court held prescription depended on status of heir. If legal heir, he had seizin and presumption of acceptance in absence of renunciation. If he did not renounce w/I 30 years, he accepted succession. Irregular heir loses right to accept after 30 years. Appeared to be against 977 because law seemingly making him accept. Justice O’Neill says as a procedural matter, 1030 meant to benefit someone that accepts succession. 1 child can plead prescription against absent one. This case overruled by Sun Oil, which stated that after 30 years, successor loses right to accept or renounce.Note: New Act does away w/1030. No is no set period, but is discretionary w/Court.Leavy v. Jones: Father dies and has 2 children. 1 stays. Girl moves away and never returns. Was a minor when father died, so forced heir and inherits. Adult when mother dies so prescription tolls. Minority does not suspend prescription under New articles.

XII. New Renunciation ArticlesA. Renunciation must be express and in writing. (art. 963)

1. Now no notarial act required.B. Rights of person renouncing accrete to those that would succeed as if successor had

predeceased. (art. 964)1. Prevents line from being cut off by renunciation.2. Major change in law, because used to go to coheirs of same degree.3. If one renounces, he still gets accretion of new rights. (someone else renounces in his

favor)C. Rights of testate successor accrete to descendents by root @ time of decedent’s death. If none

exists, devolved according to lapsed legacies. (art. 965)1. Lapsed legacies means one that cannot be fulfilled. 2. Art. 1589 defines3. Thus, if legacy made to friend who renounces, friend’s descendent will get it provided no

other disposition is in the will.D. Person may accept or renounce accretion rights regardless of acceptance of other rights. (art.

966)1. Represents change in law because before, person had to be accpeting heir to get accretion.

E. Acceptance by creditors no longer needs judicial authrorization because of the limited liability afforded to heirs. (art. 967)

XIII. CollationA. Is the real or supposed return of goods to the succession by an heir received in advance of his

share or otherwise, obtained prior to decedent’s death so that property may be divided equally among heirs. (art. 1227)1. Encourages suits among siblings to return stuff to succession.

B. 2 Bases for collation (art. 1229)1. Parent deliberately created inequality by giving thing to one child to exclusion of others.2. Parent intended only temporary inequality and wanted proceeds evenly distributed after

death. C. Children and grandchildren must collate unless the donor expressly intended donation to be

advantage over other heirs. (art. 1228) Unless expressly dispensed.D. Collation is always presumed unless donor grants dispensation. (art. 1230)E. Collation does not take place if dispensed unless donation exceeds disposable portion. (art.

1231)1. Excess is then subject to reduction.2. Only descendants collate.

F. Dispensation must be made in will, donative instrument, or other notarial act. (art. 1232)G. Dispensation must be made in equivalent terms and show intent in unequivocal manner. (art.

1233)H. Even if dispensation granted, if donation exceeds disposable portion, heir obliged to collate to

extent necessary to make up legitime to other forced heirs. (art. 1234)I. Only forced heirs in the first degree may demand collation. (art. 1235)

1. Forced heirs are descendents under 24 years of age @ time of decedent’s death.

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2. Only applies to gifts given w/I 3 years of decedent’s death and is valued at time of the gift.

3. Grandchild may not demand collation even if he is a forced heir.J. If children renounce succession, they may retain gift w/o worrying about collation. (art.

1237)1. Collation applies to heirs, which you are not if you renounce.2. If legitime applies, however, and remaining portion insufficient, gift will be collated to

extent necessary to fill legitime.

Cases:Jordan v. Filmore, 120 So. 275 (La. 1929): Mrs. Miles, testator has a daughter. Miles donated plantation to granddaughter. Donation is invalid. In will, Miles leaves everything to Daughter. Daughter of another daughter of Miles, predeceased, enters picture. Jordan should come up as forced heir through representation. Intervenor granted ¼ of Miles’ estate. If this is a forced heir case, granddaughter gets ¼ because legitime is ½. If case of collation (representation), granddaughter gets ½. Collation only applies to donations inter vivos, not donations mortis causa. Since Miles donated property in will, collation does not apply and granddaughter only gets legitime portion. Collation is intended as advance on inheritance, and how can it be an advance if given in final will? Thus, universal legacies are not collatable. W/donations mortis causa, presumption is against collation and only have to collate if it can be inferred from will to impose it on the parties. With will, one would have to have an express IMPOSITION of collation.

K. Tacit dispensation1. Possible under Jordan because of the treatment of a will. 2. Does this mean the end of idea that there CANNOT be tacit dispensation?3. No better way to show intent to dispense than to disguise a donation as a sale because it

does not apply to sales, only donations inter vivos. 4. Code and Courts say only three ways to dispense w/collations are found in Code. 5. Dispensations in olographic wills are valid despite lack of notarial act.6. Could happen if someone makes disguised donation knowing that no collation is desired.

Case:Succession of Higgins, 275 So. 2d 447 (La. App. 4th Cir. 1973): Mother dies and leaves property equally between two sons. 1 son predeceases. Contest between surviving son and grandchildren. Court said this case was to be decided on principles of collation rather than forced heirship because mother said in will that sons were to “share and share” alike, thus imposing collation. If joint legacy where succession given to two people and one dies, legacy lapses. N/A here because sons told to share: gave half to one and half to other. Representation does not apply because will was written by mother. Not a forced heirship case because both parties got more than law demands. Half went to son because of legacy, other half went to grandchildren because legacy to other son lapsed and his heirs came up through representation of intestate portion. (lapsed portion) Presumption against collation in wills is rebuttable. Must be express in testament.Succession of Fakier, 541 So. 2d 1372 (La. 1988): Annuity policies left by husband. Wife purchased 3 more and made daughters beneficiaries. Daughter received ring as inter vivos donation. Lower courts held ring not collatable because was a manual gift. Annuities only transferred @ death, so they are not collatable. Court said daughter would have to collate the ring by taking less because nothing in the will dispensed her from collation. Troubling because authentic act not needed to make valid donation of corporeal movable. Mother could not have dispensed w/in donative instrument since there was not one.Ellis v. Benedict, 408 So. 2d 987 (La. App. 2d Cir. 1981): Rental income from property to be collated? Court held that the rent is collatable from the date of the donor’s death because collation cannot be demanded until decedent’s death. Grandchamps v. Delpeuch, 7 Rob. 429 (La. 1844): Lady wants dowry back from three sisters. Under 1237, heir has the right to renounce w/o collation. Lower court ordered sisters to produce portions of the legitime by way of reduction. Have to have ficiticious collation to ascertain amount of legitime. This is an economic decision. Are you better off to renounce and not collate or to collate? If an heir refuses to exercise his right to collate, creditors cannot exercise it. Is strictly a personal right.

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Succession of Hurd, 489 So. 2d 1029 (La. App. 1st Cir. 1986): Woman dies intestate and is survived by three children. Made donations in disguise to daughter. Son, who could bring action, is bankrupt. Court held that bankruptcy trustee could force collation because acting on behalf of the son. Decided under federal law. Was the intent of Congress that NO property was to be shielded from trustee. Could also, theoretically, bring reduction action. Article 1242 says that collation is made only to the succession of the donor. Succession of Hoffpauir, 446 So. 2d 931 (La. App. 3d Cir. 1984): 6 children, 5 of which bring collation action for loans made and disguised donations. Mother conveyed her half to the 6th son. Under issue of disguised donation, one exists if no price paid or less than ¼ value paid. Sales not subject to collation. 1248 allows coheirs to demand collation for sales of more than ¼ price but less than market value of property. Look to value of property as of time of death. Article 1269: only when collating by taking less does the value of the immovable come into question. Use valuation as of date of xfer to determine if xaction is one of collation or donation in disguise. Use date of death to determine how MUCH is due for collation. Succession of Moore v. Moore, 387 So. 2d 1231 (La. App. 1st Cir. 1980): Trial court held that P failed to establish fair market value @ time of transaction. This was the only way to establish whether the heir paid a “very low price.” Goes to show that value of property @ time of xaction is crucial to determining whether collation should take place.Succession of Delesdernier, 184 So. 2d 37 (La. App. 4th Cir. 1966): One heir wanted to reopen succession for collation. Court held that collation cannot be demanded after judgment of possession issued which closes succession. This is done so that finality can be had in case. Problem is that this did not achieve equality that collation is supposed to achieve. One must have grounds to reopen succession after judgment of succession issued. Action for collation is not ground for nullity of a succession, which are usually limited to fraud or ill practice.

L. Grounds for reopening succession1. Ommission of property may be defect in succession, but it is not a ground for nullity. 2. Ill practice

a. Involves intentionally hiding property belonging to the succession. b. Court says did not pursue rights when succession opened.

Cases:Succession of Webre, 172 So. 2d 285 (La. 1965): P claims absolute simulation. Parent sold property to child, but title did not intend to transfer ownership. Absolute simulation has no prescription because no transaction took place. Collation has a 10 year prescription from time of death because it is a personal action. Donation in disguise is a simulation, but not an absolute one.Law Review Comment: Says collation is a form of partition because property being split up. What is liberative prescription for partition? In part, it is inprescriptible because no one can be forced to own property w/someone else. This is codified in C.C. art. 817. Idea is that property is being partitioned by collation. Author espouses that collation should be inprescriptable just like partition. Is partition synonymous w/coownership?Succession of Simms, 371 So. 2d 272 (La. App. 3d Cir. 1979): Lady donated property to Harold Simms Jr. Jr. dies and property goes to III? III say he is coming in his own right. Heirs arguing this is case of representation. III got disposable portion by will. Court held that he came into succession in his own right, thus, he did not have to collate. Came as a legatee under will of the grandmother. If not a legatee, he would have come up by representation. Only demands legacy, not anything else. Got “annex” out of father’s succession. Succession of Gomez (I), 67 So. 2d 156 (La. 1953): Mrs. Gomez supported her daughter by giving her money. Will contained no express dispensation from collation. Grandchildren want collation. Court held that ALL donations are subject to authentic act. Some articles apply exceptions to collation such as 1244-45: Parental obligations and things given for donee’s use or pleasure (usually covers special occasions). Articles do not specifically dispense w/collation for corporeal movables. Court says have to look @ reason for donation to determine if collation applies. Here, Court found no remunerative donation, so could not be exempt from collation. Court seems to be saying that coheirs can be forced to collate gifts that require no particular form.

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Gomez (II): Part that was not really decided. 1245 does NOT dispense w/collation just by virtue of manual gift. Now had to consider how intent is to be manifested in cases of manual gifts. 1232 could not be contemplating manual gift because they do not require writings, yet dispensation requires notarial act. Court held that 2 approaches could be used: 1232 way (1 of 3 forms) or consider the factual circumstances to see if one can infer intent to dispense in regard to manual gifts. 1232 N/A because manual gift did not exist in 1808 when that provision inserted in Code. Should read that one can have a tacit dispensation from collation in regards to manual gifts. Have to make decision based on facts of case. One pleading dispensation in manual gift cases has to overcome a very high burden of proof IOT prevail. Succession of Skye, 417 So. 2d 1221 (La. App. 3d Cir. 1982): Lady says 10K debt as b’day present. Card admitted into evidence to show that was actually present. Court upheld this as claim of dispensation under Gomez. Is an example of a tacit dispensation. Tells what kind of evidence is needed in case of tacit dispensation of collation. (Note: does this tacit dispensation now exist in regards to manual gifts?)

Note (Lorio on new reproductive technologies): Articles have changed to maybe allow for taking by petri dish babies. Article 26 says fetus is natural person from conception. 953 says must exist @ death of the decedent. 940 says unborn child conceived @ time of death and then later born alive is considered to exist @ decedent’s death. 954 broadly defines womb broadly so that petri dish could, by analogy, be considered a womb for succession purposes. 1474 says children must be in uetero @ time of death of testator. Could they inherit under forced heirship?

Lorio on Changes in Successions Title

Commencement of Successions really did not change. Universal successor is one that is left “all my property.”

I. Universal successors get possession from time of decedent’s death, and he continues the possession of decedent. Particular successor can start a new possession if that is more advantageous. Before the succession representative qualified, only the universal successor can exercise rights of decedent.

II. Commorientes was repealed. Person now only needs to prove they existed @ time of decedent’s death. (La. C.C. art. 31)

III. Loss of Succession RightsA. Art. 939. Conceived child @ time of death and born alive has capacity to take. B. Leaves question open about invitro fertilization.

IV. UnworthinessA. Applies to all successors. B. Limited to conviction or “judicial finding” of murder or attempt to murder. C. Must be brought by someone w/something to gain.D. Reconciliation vitiates unworthiness.E. Prescription, according to art. 944, is five years from death if decedent intestate, or 5

years from probate of will if decedent is testate.F. If person is found unworthy, he must give back all that he was given. 3rd parties are

protected here due to the public records doctrine. Donees are not protected. Unworthy successors cannot serve in a fiduciary position. (Universal successor, succession rep., etc.)

G. Devolution of succession rights of unworthy successor.1. If intestate, unworthy successor treated as predeceasing decedent.

(representation)2. If testate, devolves according to accretion (representation)3. Accretion only works for descendents, siblings, or descendents of siblings. 4. Unworthy successor cannot enjoy parental usufruct.

V. Acceptance and RenunciationA. No obligation to accept and one now enjoys the right of partial acceptance.

1. Succession subject to suspensive condition may be accepted or renounced before or after completion of the condition.

2. Legacy lapses if person dies or if condition is not performable.

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B . Minor is presumed to accept (art. 948) 1. Legal representative of minor can renounce if court allows.

C. Successor must know of decedent’s death and called to succession. D. Successor retains rights as creditor of estate whether he accepts or renounces. E. Tacit Acceptance

1. Formal and informal as opposed to express and tacit. 2. Acceptance presumed unless renounced. 3. Successor can be forced to accept or renounce if good cause shown.

F. Renunciation must be express.VI. Accretion

A. If intestate, accretes to same person as if renouncer had predeceased. B. If testate, dealty w/in article 965.

1. Legacy to friend is inheritable by friend’s heirs if friend renounces. VII. Disinherison

A. Deals w/leaving out forced heirs. B. No longer in Code. C. Theory not needed since forced heirship now limited to young and/or disabled.D. Just cause

1. Art. 1494 says that just cause is now much wider than previously, and kids can be kicked out for many reasons.

2. Since Courts have no authority to base decisions on, it is assumed that courts will refer to repealed articles if cases of this arise prior to next revision of this section in the Code.

ReviewFictitious collation deals w/forced heirship. Done to calculate legitime and separate property to see if too much was given away. In fictitious collation, no property is actually returned to the succession until after the calculation is complete. Includes all donations inter vivos in this calculation. One cannot dispense w/fictitious collation.

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