Lisa C. Matthews, as Provisional Administratrix of the Succession of Edward A. Horrell VS Walter and Edna Horrell

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 1973 LISA C MATTHEWS AS PROVISIONAL ADMINISTRATRIX OF THE SUCCESSION OF EDWARD A HORRELL SR VERSUS J f WAL TER AND EDNA HORRELL NOV Judgment Rendered On Appeal 7 2007 from the 22nd Judicial District Comi In and For the Parish of S1 Tammany Trial Court No 2006 10261 Division Honorable William J J Knight Judge Presiding Lisa C Matthews Plaintiff Appellee Kathleen D Lambeli Lisa C Matthews New Orleans LA Administratrix of the Succession as Provisional of Edward A Horrell Walter and Edna Horrell Covington Defendants Appellants Walter and Edna Horrell LA Pro Se I e R Ew o V M e X s t G P c HUGHES J This is brought by was from appeal an eviction ordered an succession administratrix a against For the immovable property of the succession the trial court which by an heir in possession that follow reasons of we and remand reverse FACTS AND PROCEDURAL HISTORY The facts Edward A Horrell pp 1 4 2841 La La procedural history surrounding and Sr began 4 Cir App 1 31 97 as succeSSIOn 680 So 2d 725 725 27 writ denied 687 So 2d 403 Edward A Sr died Horrell 9 July 1993 84 at age leaving his wife of more than fifty years Clare Younger Horrell and five adult children Walter born in 1939 bOlTI 1940 Michael born 1942 Edward Jr bOlTI in Mrs Horrell GayeFN1 1946 his and Marie Elise death Mrs a kla Horrell born in 1948 Liz filed and a Throughout the record Ms Horrell inconsistently spelled as Gay Gaye and Gayle 125 000 valued city blockFN2 located Covington valued at FN2 located on at name property at 2020 19th and as valued IS at Lafayette Street well entire as an Streets in downtown Tyler 300 000 The record indicates that at least two houses the list following separate immoveable both in New Orleans 150 000 s home at 505 Florida Avenue family and industrial at order list indicates that at the time of descriptive his death Mr Honell owned the The for descriptive sworn FN1 property after Shortly petition a appointment of administratrix with stating that Mr Horrell died intestate The detailed property and there is some were indication that it was subdivided into 10 lots Mr Horrell owned a camp 50 000 located in as Lake community property with Catherine Louisiana his wife valued at and the industrial property at 4821 Earhart Boulevard in New Orleans where his company Horrell and Company Inc business office and warehouse were located valued at 200 000 tenants with In addition a right of Mississippi valued at Mississippi valued at of stated in Succession of Horrell 95 1598 96 11 9 the Mr and Mrs survivorship 125 000 24 000 2 a Horrell owned house in as joint Bay St Louis and two lots in Diamondhead 96 days prior to the filing of Mrs Horrell s petition and descriptive list however the Horrell s oldest son Walter Several sought to have his father s statutory will executed 1993 probated It provided the following Edward A I testament I Horrell hereby revoke any this make prior wills my or April on last 13 will and codicils that I may have made I grant donate and bequeath the usufruct of all give shares that I in own companies listed the New York Stock on and the usufruct of my home located at 505 Florida Clare Boulevard New Orleans Louisiana to my spouse Horrell for the rest of her life Exchange Younger Subject the usufruct of the New Orleans Louisiana Boulevard that estate I premises own Florida at 505 I to my spouse granted the immovable bequeath all donate and give grant real to propeliy State in the Parish of Orleans of four of my five children namely Marie Elise Horrell wife of Paul LeCour Edward A Horrell Jr Michael J Horrell and Gay Ann Horrell divorced wife of John B Coffer I give grant and bequeath all the immovable property Louisiana to real estate that I own Tammany State of in the Parish of St Walter J Horrell I give grant donate and bequeath all the remainder of Ann my propeliy to my five children Walter J Horrell Gay Horrell divorced wife of John B Coffer Michael 1 Horrell to my fifth child Louisiana Edward A Horrell Jr and Marie Elise Horrell wife of Paul LeCour I make them my universal I name and appoint legatees Walter J Horrell succession with full seizin and without bond The will which had been Mary F Horrell as or prepared by executor security Walter s daughter in Mr Horrell public was signed Mercy Hospital and witnessed by a of my notary hospital room at Betty Horrell Walter s wife and Allen E s Edna alkla Horrell Walter s with Walter present On the same day that Mr Horrell signed the will he also signed an Act of Donation prepared by Walter who was an attOlney giving Walter the propeliy in son C ovmgton FN3 discovery of this Act of Donation filed in the St Tammany public records Mr Horrell signed a Revocation of Donation prepared by an attorney hired by Mr Horrell s other children FN3 On to have 23 July administratrix children after Six weeks later On 1993 August Mrs 31 she 1993 was and appointed four of her Gaye Michael Edward and Marie Elise petitioned the will declared invalid alleging lack of testamentary lack influence capacity undue witnesses and conflict of interest intestate Horrell succession filed Mrs by 3 of sufficient The two Horrell number proceedings and the of the testate succession filed by Walter were consolidated on December 22 1993 On Jan 10 1994 Walter administratrix and to him include two vehicles list remove his mother as have all the succession property delivered He alleged that his mother 1 failed to to executor as to sought 1980 truck and a in the a car descriptive used only rough estimates in valuing the succession property 3 commingled funds and continued to write checks for her own purposes 4 paid succession debts without 2 authorization of the court business without to complying had taken 5 with codal steps requirements operate it for the benefit of the succession Walter s granted administratrix propeliy to motion and her The trial comi Horrell Mrs deliver to and failed all as succession Walter On March 23 deposits In April removing ordering to continue the 1994 an accountant completed a list of and disbursements in the Horrells four bank accounts contempt because his mother deliver the succession property to him On April Walter filed had failed to a rule for petitioned for an interim allowance because Walter was receiving the stock dividends which Mr Horrell had transferred to her prior to his death giving her an annual income of approximately 21 140 in monthly payments of 700 and quarterly payments of 3000 Walter opposed the petition arguing that his mother received social security payments of 750 per month and that the house in Mississippi where his sister Gaye lived should be producing income in the FN4 approximate amount of 600 per month 7th Mrs Horrell Nothing FN4 has lived rent free whose son on in the record indicates that Walter who the Covington property likewise lives rent free in propeliy began paying rent to a his entire life and separate house on the the succession Sept 28 29 and October 3 1994 a hearing was held on the petition to nullify the will and the rule to remove Walter On as executor On November 17 1994 the trial comi denied stating that Walter s siblings failed to prove by clear and convincing evidence that Mr Horrell lacked testamentary capacity when he executed the April 13th testament The trial judge found that the testimony of Walter his wife and children as to what occurred on the evening of April 13 was consistent both in all material respects and total control and use made it clear that Mr Horrell had of his faculties that he was aware of his surroundings and that he knew exactly what he was doing The trial judge dismissed the testimony of Dr Harvey Rifkin stating that his psychiatric examination of Mr Horrell shortly after the will was executed was based on inadequate facts and contradicted by the testimony of Dr Robert Jeanfreau Mr Horrell s treating physician 4 In the succession the trial the judgment upholding comi contended the other heirs of Mr Horrell proceeding testamentary dispositions and appeal that the will that Mr Horrell lacked was on product of Walter and his a fraud and capacity to execute the will undue influence exelied or The Fourth Circuit reversed the trial daughter Mary judgment denying the petition to nullify the will finding manifest ruling that objective evidence act as the medical the comi error and testimony made Petition for Declaration of to Remove Executor were Invalidity of the trial court of granted and Alleged it of the nature of the requisite understanding judgment or by and its effects issues of undue influence and fraud were Accordingly reached well as clear that Mr Horrell lacked the testamentary appealed was reversed not the Testament and the Motion the matter was remanded for further Succession of Horrell 95 1598 at pp 8 9 680 So 2d at 729 proceedings On remand to the Civil District Court for the Parish of Orleans Walter J Horrell succession s petition appointed administrator of his father s and Hibernia National Bank denied was be to was appointed 1 administrator conditioned upon the acceptance of the appeal was made to the Fomih Circuit F omih Circuit noted the oral If I was reasons just looking on these of the trial at this case appointment comi for in another In its review rulings as the judgment it may be a vacuum more qualified easy to say that Walter of all the heirs is his stability as because of his experience as an attorney and oppose d as to Michael stable and I whose personally has not been employment record have viewed of his outburst s look at this case in a some of temper in this courtroom but I can t vacuum I look at this case as the Court of Appeal has decided that a son got his father who lack ed the requisite mental capacity to sign a will they did Now didn t talk about fraud and perhaps not you re if Walter you right they were a third appointed Hibernia National Bank as administrator but Hibernia never accepted The remaining heirs substituted themselves as plaintiffs on April 15 1997 the appointment And thereafter the Orleans Parish district cOUl1 appointed Ms Matthews as administrator on July 1 3 The trial cOUl1 1997 rehearing Horrell v Horrell 99 1093 writ denied 2001 2546 La 15 p 3 La App 1 Cir 8 7 12 01 803 So 2d 971 5 01 808 2d So 363 373 on getting what was in the will If a decided one would say well it really doesn t matter lawyer went and just got someone to sign a will they may not be capable of telling whether someone lacked the mental party and but capacity disinterested in were I certainly the child of that person and as tell can when my parents are functioning at a high level middle level low level you know the person well And I don t think in good conscious sic and because of the because of that extraordinary animosity you In that as 97 2115 2 3 pp to the fact that he executor of the In a evidence presented professional and by timely eight years motor never vehicle in been arrested excess than of or forty thirty to the two years Walter Horrell despite the trial argued to the disqualifying was Walter lien of any a as years with a an In the present extraordinary case amount s rulings the trial of an ever the rejection court unblemished operated a having received a profile of a person of of this claim court found that there between type thirty at the trial therefore had at pp the Fourth Circuit reasoned animosity 6 his attorney by crime and had not have for same woman without court s had Succession of Horrell 97 2115 the trial court upholding as debt had 709 So 2d at 1071 In serve performed not in was Fourth Circuit that the trial him qualified to that he had served employed one convicted of Walter asserted that he did bad moral character basis for never had raised three children had been traffic ticket no that he regularly against him had been happily married more 709 Walter also contended that the manner filed the State of Louisiana for 3 25 98 720 So 2d 669 and that he had bill collector had a 4 Cir App practicing attorney was a indicated that he voted been contacted record had appoint can support of his position succession for three years duties in never La appeal Walter Horrell contended administrator of this succession pointed I case La 5 29 98 1070 writ denied 98 1023 1069 in this s the administrator as Succession of Horrell 2d So that exist was an family 3 4 Further in refusing to qualify Walter administrator the court noted Walter HOlTell s role his deceased father execute a will which was later members in this HOlTell in as having determined by this Walter was aware court that his father may have lacked the document to of this Court which invalidated previous decision the testamentary executing the will but nevertheless submitted him In reaching this conclusion the trial comi to capacity prior on be confected without testamentary apparently made a factual finding that court to The trial capacity relied case the will moral Bad character traditional types of behavior indicate that one is not fit does or previous bad to assume acts the the include only not which would responsibilities of administrator of a succession In the present case the trial found that Walter s involvement in the execution of his father s will which was subsequently found to be invalid due to lack of court testamentary behavior constituted bad moral character sufficient to him from disqualify succession serving Although there fraud in the case administrator of his father s no allegations or proof of as were Walter benefited from the provisions of the will in that he would have inherited to the exclusion of the remaining heirs a substantial piece of real estate in St Tammany Parish There is also evidence that the decedent executed being contested and the litigation favor of Walter which is be property in Act of Donation of this immovable an pursued by the succession s administrator is assuming Walter s character Even must in pristine all respects other than his involvement in the execution of his father will s the and members which sufficient to suppOli After administrator in this case of donation in addition to the circumstances here family act and the was noted we find animosity by the trial that the among the court were finding that Walter could not serve as carefully reviewing the allegations made evidence presented at the contradictory a hearing we cannot say that the trial comi abused its discretion in refusing to appoint Walter Horrell as administrator of this succession on the basis ofLSA C C P Succession of Horrell 97 2115 The in St validity of the at pp 4 5 Act of Donation Tammany Parish which granted Horrell s co heirs invalidating Edward A HOlTell Sr prior judgment additional facts On were s mental appeal the art 3097 709 So 2d at 1071 was smmnary litigated judgment in favor of Walter donation and status res of that stated 7 in the district comi declaring judicata citing matter to this the issue of the Fourth Circuit comi the s following April On 13 donation of his Louisiana to his Mr 1993 separate Sr inter vivos in property located Walter J Horrell son an Horrell made Covington The donation was by authentic act and recorded in the conveyance That same day Mr Horrell records in St Tammany Parish executed a testament which also gave the Covington propeliy to Walter Walter presented both of these documents to Mr Horrell who was eighty four years old while Mr Horrell was hospitalized in Mercy Hospital in New Orleans Louisiana valid in form When Mrs Clare Horrell Mr Horrell s wife and their adult children learned of the donation they presented Mr Horrell with a Revocation of Donation which he executed on 21 May to That document 1993 Walter for acts ingratitude cruel of Mr Horrell also executed injury Horrell power of attorney over annul the donation to purported grievous granting Mrs treatment document a and his affairs When Walter learned of the of his mother and acts siblings he procured Mr Horrell s signature on a document revoking the power of attOlney in favor of Mrs Horrell and on an incomplete petition to dismiss any suit Mrs Horrell may file to revoke the On in St donation July 1993 7 Mrs Horrell the district comi revoke the inter vivos donation of the The petition named Mr Edward Horrell Tammany Parish Covington property and Mrs Horrell petitioned to his as agent as Plaintiffs Mr Horrell died on July 9 1993 On August 26 1993 Walter filed a peremptory exception of no right of action asserting that Mrs Horrell could not bring the action for these reasons 1 Mr Horrell had 2 Mr Horrell s death power of attOlney terminated the mandate as a matter of law and 3 Mrs Horrell revoked had no the interest in the Covington propeliy since it was the separate property of her deceased husband On August to appear 31 1993 Mrs Horrell amended the petition Administratrix of the Succession of Edward A as that Mr Horrell had lacked the mental Horrell Sr capacity to execute the Act of Donation asseliing on April 13 1993 and revocation of the donation on May 21 1993 Walter responded by filing exceptions of vagueness and Horrell had died no right of action contending that since Mr that he had executed testate and had Mrs Horrell succession a appointed then a Mrs testamentary Horrell executor who was not the was not legitimate representative Mrs Horrell responded the comi to amend her on petition April to 15 1997 by petitioning substitute her other children Gaye Horrell Coffer Michael Horrell Edward Horrell Jr and referred to collectively as Marie LeCour as Plaintiffs Plaintiffs These Plaintiffs declared that they were substituted as Plaintiffs in order 8 to represent and protect their Covington property Walter then filed a Therein he motion entitled Exceptions on June 10 1997 alleged insufficiency of service of process vagueness lack of capacity and all other declinatory and dilatory exceptions The trial court denied all of these exceptions on September 26 interests in the Walter own sought 1997 Hon ell the will in the Succession of probate to in Orleans Parish Horrell and the Plaintiffs Mrs that court to annul the will petitioned on the that Mr ground Honell had lacked the mental capacity to execute a testament That suit proceeded simultaneously with the instant suit On January 1998 the trial court heard the 14 exceptions regarding the First Supplemental Petition in which Mrs Honell appeared as administratrix of the Succession of Honell Without explaining of vagueness its of action right no the trial court denied the reasons On exception and 16 January of no cause that the donation was exceptions Walter 1998 challenging of action The Plaintiffs filed made under duress The trial court then ordered Walter to his filed answer answer on peremptory a the Plaintiffs claim exception which the trial motion to strike the Walter filed the court a granted petition 29 February 1998 Immediately thereafter the Plaintiffs moved for summary judgment based on res judicata Their argument was that the Fomih Circuit Court of Appeal had found Mr Horrell lacked the mental capacity to execute a testament on April 13 1993 and therefore Mr Horrell also lacked the capacity to make an inter vivos donation that day The trial comi granted summary judgment v Horrell 366 67 on Horrell 363 372 99 1093 2 4 99 1093 rehearing writ denied pp 2001 2546 La La La App App 7 12 01 808 So 2d 1 Cir 10 6 00 1 Cir 803 15 8 808 So 2d 01 So 2d 971 footnote omitted Noting that Lisa Matthews administratrix for the succession July on concluded that neither Mrs Honell proper was pmiy plaintiffs to assert under administration So 2d at 369 and 371 In a 3 nor appointed v holding provisional as 1997 in Orleans Parish this court the co heirs of the right of the succession while Horrell so was Horrell 99 1093 at pp were the succession 7 and 11 this court further reasoned 9 estate 808 Horrell in her individual capacity as spouse of Mr Horrell Following the Fourth Circuit s annulling Mr Horrell s testament due to his lack of That leaves Mrs surviving judgment mental capacity Mr Horrell s estate must devolve according to The Covington propeliy which was the the laws of intestacy object of the donation inter vivos was Mr Horrell s separate Mr Horrell s descendants succeeded to his property propeliy under the laws of intestacy Mrs HOlTell 888 in interest this descendants as his surviving propeliy if Mr parents siblings nor La Civ Code would spouse Horrell or had separate arts 880 and only have an left neither descendants from them La Civ Code mi 894 Horrell therefore reversed and the in favor of plaintiffs lower for substitution of the proper party heirs court to granted was substitute Ms Matthews the motion affirmed the trial vivos based at 376 on court s summary on res plaintiff and for judicata comi remanded ruling to the On motion of the rehearing this comi plaintiff and judgment invalidating the donation inter Horrell as Horrell 99 1093 at p 8 v 808 So 2d to review this rehearing again in an subsequently 2004 0477 district comi rulings 4 Cir La App La 4 8 04 regarding had the opportunity decision rendered in In unpublished Horrell 2003 0482 denied plaintiff as case allowed substitution of Ms Matthews The F omih Circuit case The trial Horrell 99 1093 at p 7 808 So 2d at 369 v 12 11 870 an 03 re Succession of 859 So 2d 318 table writ which affinned celiain So 2d 273 amended detailed descriptive list filed into the Orleans Parish succession Against arose On succession this factual and January Lisa C district court in St Horrell were 19 procedural backdrop 2006 Matthews proceeding provisional administratrix of the filed the instant a Rule to Evict Occupants this in the Tammany Parish alleging defendants Walter and Edna occupying premises owned by the succession located 10 at 711 W 19th Street in despite a In notice Covington to vacate these an Edna Horrell asserted that by despite the half years her law interest in the LSA C C P estate to 4704 prolonged by as property involved an the property they to be had contractual and the administration repaid prior not as a that could summary eight and over alleged retaliation them in was and alleged propeliy they to possess as s as defined over by LSA the years which obtaining possession of had possessed owners with Ms Matthews that there 11 be resolved alternatively the Horrells Matthew that only special proceeding or necessary expenses to Ms with the intention relationship proceeding right Fmiher paid certain The Horrells also for many years Walter and inventory directed against real a the action for eviction required not were Ms Matthews by Ms Matthews for C C mis 527 529 to maintain the immovable were such Walter and Edna Horrell fmiher ordinary proceeding and contended that that Walter The Horrells asserted that their possessory punitive untimely and illegal such were churn the succession in order to generate fees for herself response to their contention that an as In addition estate that Ms Matthews had instituted the eviction through asserting being manifestly solvent pminers and their friends interest in the they alleged that they propeliy and art so pleading entitled a at issue alleged mismanagement of the of the succession had been one in which Answer ownership defined as occupants Horrell filed of the immovable property possessors Horrell had the defendants failed to do Walter and Edna response Exceptions and Verified legal premise alleged that Ms Matthews fmiher Louisiana that was no the propeliy they had valid no reason for the eviction that the notice action was was old stale and invalid premature and that the rule to evict Following eviction to vacate a June 13 giving oral 2006 reasons as that 2 was too vague hearing the trial judge ruled in favor of follows The Comi finds that C C P mi 4732 that the good under the provISIOns of LSA cause exists for the eviction rule to proceed in connection with this matter the Court making the specific finding that based upon the testimony of the succession representative which the Court accepts in that respect that the cooperate in the appraisal and inventory of the movable property on the succession property failure of Mr together with walTants A Walter HOlTell the extremely protractive litigation on June 13 2006 judgment Walter and Edna HOlTell suspensively appealed From this following assigmnents 3 of elTor The trial court erred in 1 nature of this the eviction judgment of eviction was signed and urge the to ordering the eviction of the appellants erred in failing to recognize that Matthews had judicially confessed the possession of The trial 2 court plaintiff the appellants The trial 3 comi erred in failing to recognize that the legally subject to eviction which is denied would have a legal right to retain possession of the propeIiy until reimbursed for the necessary and useful expenses they paid 4 The trial comi erred in failing to sustain the exception of no cause of action as well as the other exceptions 5 The trial comi elTed in excluding evidence that the appellants had paid the necessary and useful expenses on the if appellants propeIiy for many years as well as evidence to establish the reprisal ongoing Walter Horrell filed a separate possessory action Horrell s demands in that against Ms Matthews in which he also sought injunctive relief Walter suit were denied and the judgment of the district cOUli has been affirmed by this cOUli in a 2006 1838 La App I Cir 8 07 15 separate unpublished opinion See Horrell v Matthews 2 While the instant proceeding was 962 So 2d 512 table 3 to Dismiss Suspensive appeal converting it to a suspensive Appeal devolutive appeal for failure of appellants to timely file the appeal bond set by the trial cOUli Ms Matthews accompanying Motion to Supplement Appellee Brief was referred to the merits raised by of this appeal Because the motion to supplement was based on and addressed issues reach we deny the motion to appellants that because of our ruling herein we find unnecessary to supplement On January and 15 on 2007 appellee March 21 Lisa C Matthews filed 2007 this court dismissed the 12 a Motion 6 The trial cOUli ened in documents or taking it upon itself to consider other matters outside the evidence received at the hearing 7 The trial cOUli erred in not signing a proper judgment LAW AND ANALYSIS Louisiana was seq s statutory scheme for eviction LSA C C P designed give landowners the right to the burdensome expense and by summary delay required by citing Jones 866 384 So 2d 494 Thus LSA C C P two mi 4702 LSA C C P must be established 891 La In the instant were App case of the demanded that ceased Trust Co v 4 and Skannal v as See e a in plaintiff to prevail an occupant and g Crabtree v 2 an the Bordelon Ms Matthews asselis that Walter and Edna Horrell as they had her permission to remain in property and that since she withdrew her pennission and they vacate the premises the purpose of their occupancy had 5 Notwithstanding this contention the Honells began residing property long before Ms Matthews became connected with the 4 after 2 Cir 1947 occupants of the propeliy possession Eviction occupant an 4704 mi by status s cessation of the purpose of the occupancy 31 So 2d 890 action petitory 2 Cir 1980 the defendant l et writ denied 588 So 2d 109 La 1 Cir App La elements action for eviction App La 4701 occupants without Citizens Bank the purpose of the occupancy has ceased 1991 a is available for the eviction of procedure Carr 583 So 2d 864 to oust art on the matter includes a sharecropper half hand day laborer former owner and any person immovable property by permission or accommodation of the owner former owner or occupying another occupant except a mineral lessee owner of a mineral servitude or a lessee of the Occupant LSA C C P mi 4704 owner 5 Ms Matthews admitted in her that any permission she might have given to the Walter Horrell testified that there had at issue was tacit testimony Horrells for occupancy ofthe propeliy been any lease or other contractual never relationship 13 between himself and Ms Matthews her through 3 July 1997 appointment Horrell testified before the trial years and that it had fifty one prior to prior to 1993 with his court father s ownership It is not to his on the property for father Edward A Horrell Sr on the premises after Mr Horrell s death however permission occupied the property in his that in this case the propeliy at issue was the property of Edward A Horrell Sr The facts and procedural history hereinabove reveal that it is the law of this case and that Walter Horrell is adult children who the heirs to that ownership during are 880 and 888 interest in the propeliy 6 propeliy conclude that Ms purpose Walter Horrell had in In the absence of valid Therefore s or thereafter property has 7 as five in accordance the premises an disposed of No evidence was yet been alienated Matthews failed occupying s to show i e that the to exercise his testamentary disposition the undisposed property of the deceased operation of law in favor of his descendants ascendants and collaterals by blood or and in favor of his spouse not judicially separated from him in the order provided in Descendants succeed to the LSA C C ali 880 to the aliicles devolves by by adoption and according propeliy forth has ceased ownership rights 6 of his father one unless and until it is at issue introduced before the lower comi that this we set Walter Horrell does in fact have the administration of the succession Consequently separate that the late Mr Horrell succession is intestate arts right own interest disputed with LSA C C Walter administratrix that he had lived belonged Walter Horrell testified that he an provisional Presumably Walter Horrell resided his 1993 death claiming as following They of their ascendants degree They take by take in equal portions and by heads if they are in LSA C C succeed by representation roots if all or some ofthem See also LSA C C alis 934 the same ali 888 938 and 1292 and legacies or may sell succession propeliy in order to pay debts for any other purpose when authorized by the cOlni as provided in this Chapter LSA C C P ali 3261 The phrase for any other purpose means any other lawful purpose or reason of necessity it does not give to the executor or administrator carte blanche to sell succession propeliy for any 7 A succession representative sufficient In re Succession of Boyter 33 749 p 4 La purpose or reason that he may deem 2d 623 626 citing Succession of Pipitone 204 La 391 399 15 So App 2 Cir 8 23 00 766 So 2d 801 803 804 La 1943 14 We note that Ms Matthew s it was time for Walter Horrell property to the trial court comply with her requests located on the Ms inventory to 9 some by cabinet a examination to which me This from and Im trying Sr came do my job as that s or order and Edna Horrell to to inventory and appraise all allegedly movables co wanted to say would have a heirs the succession then we letter directed in October of 2004 The order of the Orleans Parish district court other se cross filing the eviction to out proof was submitted that it was of your inventory on the premises they occupied some of that judge8 so propeliy fell into filed into evidence and did the intent of that court to extend its 15 Ms today what movables in Walter value for that propeliy manner Ms the late Mr Horrell she intended that was estate estate In a copy of Ms Matthews to Walter Horrell by a pro under the direction of the Orleans Parish district comi that if the other 8 s I wouldn t be here not know possession belonged were clear that the succession of Matthews testified that because she did s to but not limited to administratrix of this quite property be furnishings situated in including court a I think it owns Matthews about because you have gone following to Matthews fuliher stated Edward Horrell ordered Ms to her motivation in as to The record further Mr Horrell and which by to property alleged were In response to Walter Horrell the trial below during prevent property inherited were and 4 chairs Ms Matthews stated way court Mr Horrell at the time of his death sofa that explained her items of movable 1993 value of the household Covington Louisiana that owned Matthews property occupied by Walter Horrell July was by stating that Walter Horrell had refused reflects that the Orleans Parish district establish the for the eviction because his occupancy of the move on of the late Mr Horrell to the estate belonging to reason bad for the succession was conclusion expressed prior even not so state no order in such a though specific she identified the late Mr Horrell appraiser sic all of the moveables appraise We believe Ms Matthews owned was instructing located on the property mistaken in her asseliion that at A issue transmission of the estate of the deceased to his 871 was to the estate of the the Emphasis original Covington propeliy succession belonging as Matthews stated that she Ms and inspect to items of furniture the the is succession LSA C C mi successors The Comments to Article 871 state This provision combines two succession meanings of succession It is intended to establish that the in the Civil Code of 1870 word of the the process means by which heirs and Since the the property of the deceased property is transmitted immediately upon death to the proper successors it follows that they have a right to possession after legatees succeed to This complying with appropriate procedural requisites revision together with the next article is intended to eliminate the meaning of succession which describes the estate of the deceased as if it were a separate legal entity Emphasis added The of a deceased estate any charges exceed the property deceased as since death and they property or includes not new and obligations that a the only charges to charges or only left charges without whether he has rights and of the obligations but all that has accrued thereto exist at the time of death and the rights whether the property exceeds the person leaves after his death the the property means which it becomes LSA C C subject mi 872 Succession Immediately occurs at the ownership of the and particular to them decedent is transferred to his testate whether death of a death of the decedent estate things bequeathed at the successors pmiicular general universal or 16 935 The whether testate art art successors universal 934 acquire acquire ownership successors LSA C C LSA C C person of the possession of the intestate and if or legatees A universal continues the successor and defects C C art and with 936 them becomes the part an alteration in the undivided of as property long him 9 possession LSA leaves several heirs each of which forms the among heirs LSA C C it remains undivided as advantages of the effects of the succession for proprietor to of the nature person at his decease a portion coming or community no When the decedent with all its possession of a mi 1292 Prior to the may exercise rights the well estate as exercises his of qualification of ownership of rights with respect his interest in the estate as after the ownership representative the effect of that exercise of the estate LSA C C be deemed to have enforce all contains mi possession provision no as to to his interests in as a whole qualification If of a successor thing a of successor succession a a succession representative shall property of the succession and shall of all obligations in its favor a is subordinate to the administration Further 938 representative succession a LSA C C P the time when the art 3211 Article 3211 representative should take possession this point is covered by the prudent administrator concept and thus he should be C C P art collecting 3211 required to Comment succession take d possession No as soon as practicable provision regarding LSA the method of prope1iy is necessary this is likewise covered by the prudent administrator concept LSA C C P art 3211 9 Comment e Ownership is transmitted by operation of law at the moment of death to heirs and legatees designated by the Code regardless of whether they have seizin of a particular succession or whether they can ever have seizin For example although a legatee under a palticular title cannot acquire seizin he has ownership of the thing bequeathed to him from the day of the testator s death In order to be eligible for seizin an heir must be either a forced heir universal legatee or legitimate heir and the latter two classes acquire seizin only in default of those preferred to them Whether an heir acquires seizin depends therefore not on his ownership of succession propelty but on whether he is a member of the class of heirs entitled to seizin of a particular succession Seizin according to the codal order of priority Baten v Taylor 386 So 2d 333 340 La 1979 investiture of one class of heirs with possession of the is not ownership however but the legal succession upon the death of the deceased enabling the heirs who acquire seizin from the instant of death to bring all the actions which the deceased could have brought Baten v Taylor 386 So 2d at 339 40 17 Another consideration is in pmi that provides to the succession managing Emphasis times as a a fiduciary with respect duty of collecting preserving Fmiher the succession added damages resulting the succession from his failure defined in LSA C C contained in the deceased In the instant to do the opposite who has a case i s estate to mi s 871 then his heirs succession proceeding succession propeliy from the decedent The reason court order is C CP art C CP mi 225 to show No 224 cause proof has a estate constructive contempt of comi inventory assets Constluctive contempt of only after why the trial court is by the judge of a he should not be s been submitted of such action ownership interest in the as heir Ms her in over to defined punishable rule by to assist Failure s the comply by LSA under LSA against the offender adjudged guilty of contempt of comi having Walter Horrell before the Orleans Parish district Horrell stated having jurisdiction of the to seeks Ms Matthews representative order of the district comi with propeliy Emphasis added ownership interest therein complying a Since it follows that is to transmit Matthews for this action is that defendants have failed an for all 3191 mi logically fiduciary duty the succession to divest e fifth one LSA C C P ID the transmission of the estate of the deceased to his is pmi of the succession representative with and act at all personally responsible to act so shall representative administrator and shall be prudent as shall have the and is representative which 3191 art property of the succession in accordance with law the successors succession a LSA C C P presented by been taken comi In against light of Walter property Ms Matthews seeks to have him the full primary objective of all procedural rules should be to secure to parties It bears remembering that rules of procedure exist for the measure rights sake of substantive law and to implement substantive rights not as an end in and of itself Vnwired Telecom Corp v Procedure should always be indeed the handmaiden of justice 10 We note the of their substantive Parish of Calcasieu 2003 0732 p 10 La 1 19 05 18 903 So 2d 392 401 evicted from ruling on we believe this issue is condition a from the Orleans Parish district comi judgment a precedent to the particular facts and circumstances of this eviction an 176 So 2d 145 succession 386 87 In that 1965 brought suit App La surviving in community of real 175 So 2d at 386 Juneau v Laborde the co owner vested in him who takes 175 must So 2d the result In one half interest ruling s as in favor of the thereof Coon the supreme comi s opinion to the occupancy quoting 82 So 2d 693 possession 1955 of the because coproprietor be concluded that ofpropeliy Louisiana undivided an by virtue of his ownership A action of benefit v community common t he right Thus is co owner eviction has at 386 87 Supreme a co owner a remedy by In property does Coon Miller 19 same be divested of possession pmiition On the facts found v 247 not the Second Circuit deprived of the possession and suit for in of occupancy is Coon refusing supervisory review of the Court stated cOlTect a cannot v the Second Circuit On the basis of the above authorities and others to the concluded an Fmiher 228 La 410 have to account to his by spouse from the with the deceased property is entitled Miller effect it Coon that spouse the Second Circuit reasoned that it is well established a co owner stated opinion in writ refused 247 La 1089 2 Cir surviving property home in which she owned surviving widow s the administrator of the decedent case evict the to under case Our decision is in accord with the Second Circuit Miller 175 So 2d 385 proceeding v the Miller case the by the Comi of Appeal La 1089 176 So 2d 145 11 1965 background of the eviction action the historical Furthermore Louisiana reinforces our known the as Share The precursor to the Louisiana Code interpretation of Civil Procedure eviction articles See v 12 Duvic In Duvic it the Act No 298 of 1938 is limited to occupant sought stated Act No of remedy of no be 298 ejectment delay of 1938 in occasioned is in ejected a cases noted that where the propeliy speedy method a comi summary for the ouster landowners of the burdensome expense in matters where the possessor has action by a petitory of owners provides relieving semblance of claim to title to was The Duvic illegal possession grants and cases possessors thus illegal and to 01 1 1945 Finance Home 791 App commonly 298 of 1938 Service 23 So 2d 790 remedy granted by La Act No was Act Croppers III Duvic possession or v Home Finance Service 23 So 2d at 791 92 The concept that eviction possessors of immovable 11 Although La App 3 Cir 1962 remedy available against illegal a propeliy remains note that the Third Circuit ruled we So 2d 438 IS differently the decision pali of the a in the case of CUlTent Simpson criticized v eviction Colvin 138 Frederick William forcefully by Kathryn Venturatos Lorio in 10 La Civ L Treatise Successions And Donations 5 5 Weakening of the concept of seizin The Simpson case has been cited only once by this cOUl1 in an opinion that was reversed by the supreme cOUl1 See Matter of Succession of Swaim Jr and Bickham 506 So 2d 910 believe the Second Circuit La App 1 approach to Cir 1987 reversed be the sounder Colvin to the extent it conflicts with Coon 12 was v No 32 or S Occupants 2 effective including January 1 the Share 1961 The La 1988 legal analysis and we reject Simpson expressed herein entitled Act than a estate Croppers Share Croppers Act When any share cropper half hand through the accommodation of the tenant or lessee shall be in day laborer owner possession after the purpose of such occupancy and or or any occupant of land any other occupant other of any house building or landed possession shall have ceased and termination of contract or otherwise and the owner of such house building or landed estate so occupied and or his shall desire to obtain possession of the premises he shall possessed agent terminated whether for reason require in writing same allowing him of breach or demand and such leave the five calendar and possessor to remove from from the day such notice is days occupant or delivered See Waller v Chandler 94 2d So v Ejectment and Removal of repealed by 1960 La Acts LSA R S 13 4911 previously were provided holding We Miller and the opinion Fonner Louisiana Revised Statutes 13 4911 to 4926 Tenants 518 So 2d 482 502 502 La App 20 1 Cir 1957 as prOVISIOns reflected If the lessee peIiinent pmi vacate required under this to vacate LSA C C P by occupant fails or Title or for the lessee or jurisdiction anv reason why possession of the premises to the Fmiher the eviction which provides conflict with the C CP right lessor pmi that nothing in this Title of Articles 3651 3664 govern petitory and questions regarding the As indicated hereinabove was interest no disclosed proof dispossessed was of that interest Because we C C P we conclude Accordingly the 13 are involving mi trial way of illustration by vested with does not exceed the cOUli s LSA C C P the were not intended 4847 trial or by the 13 s trial purpose in comi that elTed in occupying of his find in the instant court to Since LSA s he the ownership has case been that Ms occupancy has ordering eviction eviction of defendants should be reversed and suit This intent is evident jurisdiction that 4705 art of immovable property Matthews failed to prove that the purpose of Walter HOlTell ceased added 3664 in furtherance to the submitted deliver possessory actions it must be ownership as to shall be construed through Walter Horrell during trial cause of competent ordered Emphasis or owner legislature to be litigated in eviction proceedings property comi be not possession of immovable propeIiy to a procedure is limited by LSA provisions 3651 mis concluded that the in should rif t of agent thereof may smmnarily by he right to notice lease and has lost his or in provides with the notice to comply to or owner be cited cause show to the lessor to occupant which if the lessee has waived his by written waiver contained in the occupancv 4731 A art against when it is considered that trial courts of limited authority to adjudicate eviction actions where the amount in dispute jurisdictional limit by LSA C C P mi 4844 however as stated in a case courts of limited jurisdiction do not have jurisdiction over title to immovable property 21 defendants dismissed Having decided this appeal unnecessary to address other issues raised in this on this basis appeal we find it 14 CONCLUSION For the supplement reasons reverse assigned herein we deny plaintiff appellee the trial comi judgment s motion to ordering eviction of defendants and remand the matter to the trial comi with instructions to dismiss the suit All costs of this proceeding MOTION TO are to be bOlne SUPPLEMENT by Lisa C Matthews DENIED JUDGMENT OF EVICTION REVERSED REMANDED WITH INSTRUCTIONS 14 We also find it unnecessary to decide and we express facts and circumstances may exist in which a succession evict an heir to succession property 22 opinion herein as to whether other representative can acquire the right to no LISA C MATTHEWS AS PROVISIONAL NUMBER 2006 CA 1973 ADMINISTRATRIX OF THE SUCCESSION OF EDWARD A HORRELL SR COURT OF APPEAL VERSUS FIRST CIRCUIT WALTER AND EDNA HORRELL STATE OF LOUISIANA BEFORE PETTIGREW DOWNING AND HUGHES JJ PETTIGREW J CONCURS IN THE RESULTS AND ASSIGNS REASONS PETTIGREW J concurring Although successions in I am and court and In my humble s I concur with the results reached remanding this case eviction of an heir discussion on by the majority to the trial court opinion the provisional administratrix failed legally justifying the in opinion that much of the majority is dicta evictions reversing the trial proof of the co owner to carry her burden of of the property which fell within and under the administration of the Succession of Horrell Contrary succession a to Judge Downing concurring opinion See La Code Civ P opinion this right of possession arts is true when the heir 3191 3 Cir 1962 482 La which cited with was 506 So 2d 910 1988 For the in La particular foregoing 3211 co owner property that falls within the succession Bickham I am of the opinion that a representative is entitled to possession of immovable property belonging to succession and to enforce the owners s is on reasons as and 3221 destroying Simpson v approval by this App 1 Cir 1987 even or Colvin against forced heirs In particular damaging concur am of the the immovable 138 So 2d 438 La App court Matter of Succession of rev d on different the issue of full faith and credit of I I co in the results grounds 518 So 2d foreign judgments only reached by the majority STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 1973 LISA C MATTHEWS AS PROVISIONAL ADMINISTRATRIX OF THE SUCCESSION OF EDWARD A HORRELL SR VERSUS WALTER AND EDNA HORRELL Downing J concurs and assigns reasons I agree with the result of this succession administrator may evict Coon v Miller case a The legal question is whether co owner The answer is no a See

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