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In re Succession of Feingerts

Court of Appeal of Louisiana, Fourth Circuit

March 18, 2015


Page 1216

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2011-09918, DIVISION " A" . Honorable Tiffany G. Chase, Judge.


Sidney L. Shushan, Jonathan M. Shushan, SIDNEY L. SHUSHAN, A.P.L.C., New Orleans, LA, COUNSEL FOR APPELLANT.

Jack M. Alltmont, Carole C. Neff, Max Nathan, Jr., SESSIONS FISHMAN NATHAN & ISRAEL, L.L.P., New Orleans, LA; Kyle Schonekas, Ian Atkinson, SCHONEKAS, EVAN, MCGOEY & MCEACHIN, LLC, New Orleans, LA, COUNSEL FOR DEFENDANTS/APPELLEES.

Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Joy Cossich Lobrano. LOBRANO, J., CONCURS IN THE RESULT.


Edwin A. Lombard, Judge

Page 1217

[2014-0140 La.App. 4 Cir. 1] The Appellant, Bruce Feingerts, seeks review of the district court's October 31, 2013 judgment denying his Motion to Traverse the Second and Amended Usufructary Accounting, Motion to Traverse the Amended Estimative and Descriptive List of Assets and Liabilities, and Motion to Annul Judgment of Partial Possession and Return of Particular Legacies. Finding that the judgment of the district court was not manifestly erroneous or clearly wrong, we affirm.

The late Maurice and Doris Feingerts (collectively referred to as " the Feingerts" ) had three children born of their union: Susan Hackmeier (" Susan" ), Bruce Feingerts (" Mr. Feingerts" ) and Jane Rushing (" the Executrix" ).[1] During their marriage, the Feingerts owned a home (" the Property" ) located on Bellaire Dr. in Orleans Parish. The Feingerts also owned a 50% interest in a food brokerage company, Specialty Food Sales Co., Inc. (" Specialty Foods" ). The remaining half of the company was owned by Simon Pailet, who was the uncle of Maurice Feingerts. Maurice Feingerts died testate in 1967.

Pursuant to the will of Maurice Feingerts, he left Susan, the Executrix and Mr. Feingerts all of his separate and community property to be divided equally [2014-0140 La.App. 4 Cir. 2] among them. Said legacies were placed in three separate trusts, subject to a lifetime usufruct granted to Doris Feingerts (" the Decedent" ), who was also named as the trustee of all three trusts. Pursuant to the

Page 1218

Judgment of Possession in the succession of Maurice Feingerts, the assets of his estate, consisted of: 1) his one-half share of the community property, i.e., the Property; 2) an undivided one-half interest in four lots located in Jefferson Parish; [2] and 3) " [a]ny and all property remaining in the name of Maurice P. Feingerts, including, but not limited to, bank accounts, stock, United States Savings Bond [sic], accounts receivable, automobiles, jewelry, and all other movable property of any nature or kind whatsoever."

The Decedent later sold the Feingerts' interest in Specialty Foods to Mr. Pailet. She subsequently made a series of personal loans to Mr. Feingerts and, on occasion, his law firm, following an accident wherein he sustained serious injuries.[3] While the total amount of the loans made to Mr. Feingerts by the Decedent is in dispute, it is undisputed that Mr. Feingerts never paid off the entirety of his debt to his mother.

The Decedent, in July 2009, sold the Property, which was flooded in Hurricane Katrina, for $127,000. She sold the Property individually and in her capacity as trustee. During the same month, the Decedent also executed a will leaving Susan and the Executrix a particular legacy of $250,000 each. The Decedent further expressly stated within her 2009 will that she intentionally left no part of her estate to Mr. Feingerts because of " numerous gifts" , " donations" and [2014-0140 La.App. 4 Cir. 3] " loans" she made to him " over the years" . The Decedent also forgave all debts, owed to her by Mr. Feingerts, but conditioned her forgiveness upon Mr. Feingerts not making any claims against her Succession, such as challenging the validity of her testament or asserting naked ownership claims against her estate or her in her capacity as usufructuary.

On February 23, 2011, the Decedent executed a codicil to her 2009 testament wherein she left Susan and the Executrix a third of the residue of her estate each, with the remaining third being left to Mr. Feingerts' children. She additionally increased the particular legacies to Susan and the Executrix from $250,000 to $300,000 each. The last significant change made by the Decedent in her 2011 codicil was an acknowledgement that although her estate would owe a usufructuary debt to Mr. Feingerts for his naked ownership interest in the sale proceeds from the Property, she was applying the amount due to him toward his indebtedness to her. She concludes by stating that Mr. Feingerts is not due anything from her because his indebtedness to her exceeded her usufructuary debt to him.

The Decedent contemporaneously executed an Authentic Act with the aforementioned codicil. Principal statements, relevant to the instant matter, within the Authentic Act include:

1. She sold the Property for $127,000 and that the one-sixth interest of her three children in the proceeds from the sale is $21,166 each;
2. She made numerous loans to Mr. Feingerts between September 1994 and April 2005, totaling $352,300, with the " express condition, understanding, and promise" that ...

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