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Succession of Cannon

Court of Appeals of Louisiana, First Circuit

March 25, 2015


On Appeal from The 22nd Judicial District Court, Parish of St. Tammany, State of Louisiana. Trial Court No. 2012-30522. The Honorable Allison H. Penzato, Judge Presiding.

Jack A. Ricci, Michael S. Ricci, Jonathan L. Schultis, New Orleans, Louisiana, William W. Edelman, Metairie, Louisiana, P.J. Stakelum, III, Metairie, Louisiana, for Plaintiff/Appellant, Brenda A. Cannon, Executrix of the Succession of Edward A. Cannon, Jr., and Brenda A. Cannon, Individually.

Raymond B. Landry, Richard L. Traina, Metairie, Louisiana, for Defendants/Appellees, Edward A. Cannon, III, Wayne A. Cannon, and Deanna Cannon.

Fritz B. Ziegler, Covington, Louisiana, for Defendant/Appellee, Marjorie F. Cannon.

BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. Holdridge, J., concur with Masons.


Page 1108

[2014 0826 La.App. 1 Cir. 2] CRAIN, J.

In this succession proceeding, the executrix appeals a partial judgment of possession. We reverse and remand.


Edward A. Cannon, Jr. (Edward) died testate on June 29, 2012. He was survived by his spouse and four children from a prior marriage, namely Edward A. Cannon, III, Wayne A. Cannon, Deanna L. Cannon (collectively referred to as the " siblings" ), and Brenda A. Cannon (Brenda). Edward executed a statutory will on

Page 1109

November 20, 1981, that bequeathed all of his property to a testamentary trust, the " EDWARD A. CANNON, JR. TRUST" (Trust), with Jerome J. Reso, Jr. designated as the trustee (Trustee), and Edward's four children designated as the principal and income beneficiaries, in equal parts. The will appointed Brenda to serve as executrix of the estate.

According to the Trust's terms, a beneficiary will receive his share of the Trust's principal (less $10.00) and any undistributed income on the latest of the following events: (1) the date on which a judgment of possession is issued which places the testator's heirs or legatees in possession of the estate, (2) the date on which the Internal Revenue Service accepts the estate tax return, or (3) the date the beneficiary attains the age of 30. When the last beneficiary turns 30, the Trustee shall distribute the previously withheld $10.00 to each beneficiary. The parties here agree that the second and third termination provisions of the Trust are no longer applicable, so the Trust will terminate upon the issuance of a judgment of possession.

Shortly after her father's death, Brenda commenced this succession proceeding and obtained an order probating the 1981 statutory will and appointing her as executrix of Edward's estate. The principal assets in the succession are the shares of EACCO, Inc., a privately held business that was wholly owned by [2014 0826 La.App. 1 Cir. 3] Edward, and a building that housed EACCO's operations. Approximately 13 months after probating the 1981 statutory will, Brenda filed a petition seeking to probate a purported olographic codicil that allegedly amended the 1981 statutory will to, among other changes, bequeath full ownership of EACCO to Brenda. The siblings objected and asserted that the document did not comply with the requirements for an olographic codicil, because it was not signed at the end and did not reflect testamentary intent. The trial court agreed with the siblings and signed a judgment denying and dismissing the petition to probate the alleged codicil. In a companion case also decided this date, Brenda appealed that judgment, and this court affirmed the trial court's ruling. See Succession of Cannon, 14-0059 (La.App. 1 Cir. / /15), 166 So.3d 1097.[1]

After the trial court dismissed the petition to probate the alleged codicil, the siblings filed a petition requesting, in pertinent part, that the administration of the estate be terminated and that all assets be placed in the possession of the siblings and Brenda. Brenda opposed the petition and cited the siblings' failure to comply with Louisiana Code of Civil Procedure articles 3372 and 3031-33, which set forth the procedural requirements for obtaining a judgment of possession under the present circumstances. More specifically, at any time prior to the homologation of the final tableau of distribution, Article 3372 permits " the legatees in a testate succession" to be sent into possession of all or part of their respective legacies " upon filing a petition for possession as provided in Articles 3031 through 3035, except that the proceeding shall be contradictory with the executor." Brenda ...

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