July 28, 2015
JOJUYOUNGHI CLEAVER, AS SURVING SPOUSE & AS TUTRIX OF HER MINOR CHILD, KAYODE JI JAGA
WESTERN NATIONAL LIFE INSURANCE COMPANY (SUCCESSOR COMPANY TO AMERICAN GENERAL ANNUITY INSURANCE COMPANY)
Appealed from the Nineteenth Judicial District Court, In and
for the Parish of East Baton Rouge, Louisiana. Docket Number
617512. Honorable Todd W. Hernandez, Judge Presiding.
Janice Villarrubia, Baton Rouge, LA, Counsel for
Plaintiff/Appellant, Jojuyounghi Cleaver, as natural tutrix
for the minor child, Kayode Ji Jaga.
E. Eagan, New Orleans, LA, Counsel for Defendant/Appellee,
Western National Life Insurance Company (Successor Company to
American General Annuity Insurance Company).
Villa, James R. Raines, Joseph J. Cefalu, III, Baton Rouge,
LA, Counsel for Defendants/Appellees, Shona Satomi Pratt and
Callender, Baton Rouge, LA, Counsel for Intervenor/Appellant,
Laila Minja, mother and natural tutrix for the minor child,
Tkumsah Geronimo Jaga.
WHIPPLE, C.J., PETTIGREW, McCLENDON, HIGGINBOTHAM, and
HOLDRIDGE, JJ. Pettigrew, J., Concurs with the results only,
and assigns reasons. McClendon, J., concurs in part and
dissent in part and assigns reasons. Higginbotham, J.,
0972 La.App. 1 Cir. 2] WHIPPLE, C.J.
an appeal filed on behalf of two minor children from a
judgment of the trial court sustaining the defendants'
exception of no cause of action and dismissing the
children's claims asserting an interest in an annuity
policy owned by their deceased father. For the following
reasons, we reverse the judgment insofar as it sustained
defendants' Shona Pratt and Hiroji Pratt's
(hereinafter collectively referred to as " the
Pratts" ) objection of no cause of action. We render
judgment maintaining the Pratt defendants' exception of
prematurity, and we affirm the judgment of dismissal, as
amended to reflect that the dismissal of plaintiffs'
claims against the Pratts is without prejudice. We further
vacate the judgment insofar as it dismissed plaintiffs'
claims against the defendant Western National Life Insurance
Company (" Western National" ) and remand for
AND PROCEDURAL HISTORY
Ji Jaga, a/k/a Elmer Pratt (" the decedent" ), died
on June 3, 2011, in Tanzania, Africa. On November 28, 2011, a
joint petition to open his succession was filed by Shona
Pratt, Nikki Michaux, Hiroji Pratt, and Jojuyounghi ("
Joju" ) Cleaver in the Sixteenth Judicial District Court
for the Parish of St. Mary. The petition alleged that
jurisdiction in the Sixteenth Judicial District Court was
proper because the decedent left property within this
jurisdiction. Additionally, the petition alleged that the
decedent fathered five children prior to his death, namely:
(1) Nikki Michaux, born on July 20, 1970; (2) Hiroji Pratt
(date of birth not specified), born during the decedent's
marriage to Linda Session, from whom he was divorced in 1995;
(3) Shona Pratt (date of birth not specified), also born
during the decedent's marriage to Linda Session; (4)
Kayode Ji Jaga (date of birth not specified), born after the
decedent's divorce in 1995 and while the decedent was
married to Joju Cleaver; and (5) Tkumsah Geronimo Jaga, born
on February 11, 2010.
0972 La.App. 1 Cir. 3] Separate and apart from the succession
proceedings, on December 6, 2012, Joju Cleaver, as surviving
spouse of the decedent and as natural tutrix for the minor
child, Kayode Ji Jaga, initiated the instant proceedings by
filing a petition in the Nineteenth Judicial District Court
for the Parish of East Baton Rouge Parish, titled "
Petition for Legitime and for Marital Portion,"
directly against Western National as the named
defendant. In pertinent part, Joju alleged in her
petition that the decedent had purchased an annuity from
American General Annuity, later named as Western National,
from proceeds he received from a civil rights
lawsuit. The petition further alleged that
although Kayode is a " forced heir," he is not a
named beneficiary of the annuity nor has he received anything
as a result of his father's death. Rather, the
decedent's two older children, Shona Pratt and Hiroji
Pratt, were purportedly the named beneficiaries of the
annuity. Accordingly, the petition alleged that as a forced
heir, Kayode was entitled to receive his legitime, and, in
calculation of the legitime, he was entitled to demand
collation of any gifts which impinge on the legitime. On
these bases, the petition prayed for judgment against Western
National " for Kayode's legitime."
response, Western National filed an exception of nonjoinder
of a necessary party, alleging that Shona Pratt and Hiroji
Pratt must be joined in the action, as they are the named
beneficiaries of the annuity. Joju thereafter filed an
amended petition, naming Shona Pratt and Hiroji Pratt as
additional defendants. In response, the Pratts filed
peremptory exceptions of no cause of action and nonjoinder of
a party, dilatory [2014 0972 La.App. 1 Cir. 4] exceptions of
prematurity and lack of procedural capacity, and a
declinatory exception of lack of personal jurisdiction.
to a hearing on these exceptions, Laila Minja as natural
tutrix for the minor child, Tkumsah Geronimo Jaga, filed a
petition to intervene, alleging that Tkumsah was also a
forced heir of the decedent. The petition further
alleged that, pursuant to LSA-R.S. 22:912(B), beneficiary
designations for annuities are limited in that beneficiary
designations may not transfer ownership rights reserved for
forced heirs. In the alternative, Minja's petition
alleged that the beneficiary designations in the
decedent's annuity impinged on Tkumsah's legitime.
response to Tkumsah's petition to intervene, the Pratts
filed the same objections as previously filed regarding
Kayode's petition, namely, exceptions raising the
objections of no cause of action and nonjoinder of a party,
prematurity and lack of procedural capacity, and lack of
personal jurisdiction. A hearing on all of the Pratts'
exceptions was conducted on September 16, 2013. After hearing
argument from counsel and taking the matter under advisement,
the trial court sustained the Pratts' exception of no
cause of action, pretermitted the other exceptions as moot,
and dismissed plaintiffs' claims with
0972 La.App. 1 Cir. 5] Kayode Ji Jaga and Tkumsah Geronimo
Jaga, through their respective tutors, now appeal the
judgment sustaining the exception of no cause of action.
court appropriately sustains the peremptory exception of no
cause of action only when, conceding the correctness of the
well-pleaded facts, the plaintiff has not stated a claim for
which he can receive legal remedy under the applicable
substantive law. City of New Orleans v. Board of
Directors of Louisiana State Museum, 98-1170 (La.
3/2/99), 739 So.2d 748, 756. Therefore, the court reviews the
petition and accepts the well-pleaded allegations of fact as
true, and the issue at trial of the exception is whether, on
the face of the petition, the plaintiff is legally entitled
to any relief sought. See Ferrington v. Louisiana Bd. of
Parole, 2003-2093 (La.App. 1st Cir. 6/25/04), 886 So.2d
455, 458, writ denied, 2004-2555 (La. 6/24/05), 904 So.2d
741. One of the primary differences between the exceptions of
no cause of action and no right of action lies in the fact
that a frequent focus in an exception of no cause of action
is on whether the law provides a remedy against a particular
defendant, while the focus in an exception of no right of
action is on whether the particular plaintiff has a right to
bring the suit. Robertson v. Sun Life Financial,
2009-2275 (La.App. 1st Cir. 6/11/10), 40 So.3d 507, 511.
Generally, no evidence may be introduced to support or
controvert the objection that the petition fails to state a
cause of action. LSA-C.C.P. art. 931.
Louisiana Revised Statute 22:912, governing the exemption of
annuity proceeds from claims of creditors and others,
contains a specific provision for claims of forced heirs.
Specifically, LSA-R.S. 22:912(B)(1) states:
The lawful beneficiary, assignee, or payee, including the
annuitant's estate, of an annuity contract shall be
entitled to the proceeds and avails of the contract against
the creditors and representatives of the annuitant or the
person effecting the contract, or [2014 0972 La.App. 1 Cir.
6] the estate of either, and against the heirs and legatees
of either person, saving the rights of forced heirs, and the
proceeds and avails shall also be exempt from all liability
for any debt of the beneficiary, payee, or assignee or
estate, existing at the time the proceeds or avails are made
available for his own use. [Emphasis added.]
LSA-R.S. 22:912(B)(1), plaintiffs contend that the trial
in sustaining the exception of no cause of action. Plaintiffs
first contend that LSA-R.S. 22:912(B)(1) provides a remedy to
forced heirs seeking to make a claim against an annuity, thus
giving them a direct right of reduction against the assets of
the annuity in order to satisfy their legitime, as they are
undisputedly forced heirs. They further assert that if
LSA-R.S. 22:912(B)(1) does not grant forced heirs any rights
to the proceeds of an annuity, there is no reason for the
statute. They also allege that a reasonable inference from
the language of the statute is that a forced heir can make a
claim on such assets, akin to those held in a bank or an
plaintiffs contend that the granting of the exception of no
cause of action was improper, as the annuity is subject to
their claim for " fictitious collation."
Specifically, Kayode alleges in his petition that: " In
the calculation of the legitime, the forced heir may demand
collation of any gifts which impinge on the legitime pursuant
to [LSA-C.C.] Articles 1504 and 1508 which is hereby
demanded." Relying in part on Succession of Fakier, 541
So.2d 1372 (La. 1988), the Pratts counter that the plaintiffs
have no cognizable claim or cause of action for reduction or
for " fictitious collation" because the annuity is
neither a donation inter vivos made within three (3)
years of the death of the decedent nor a donation mortis
Succession of Fakier, after providing an in-depth discussion
of the distinction between " actual collation" and
" fictitious collation," the Supreme Court found
that annuities are not subject to " actual
collation" because they are not inter vivos
donations. Succession of Fakier, 541 So.2d at 1383. However,
the Supreme Court specifically noted that it was not ruling
on " the issue of whether the value of [2014 0972
La.App. 1 Cir. 7] the annuities should be
fictitiously collated for the purpose of calculating
the active mass of the succession and the corresponding
amount of the legitime under LSAC. C. art. 1505."
Succession of Fakier, 541 So.2d at 1374.
heirs have a right to receive a certain percentage of the
decedent's estate, known as the forced portion or the
" legitime," pursuant to LSA-C.C. arts. 1493,
et seq.  Depending on the number of forced
heirs, the amount of the legitime will be either one-fourth
or one-half of the decedent's estate. LSA-C.C. art. 1495.
The remaining portion of the decedent's estate is
referred to as the " disposable portion." In order
to determine the " disposable portion" of the
estate, the mass of the succession must be calculated,
pursuant to LSA-C.C. art. 1505(A), which provides:
Art. 1505. Calculation of disposable portion on mass of
succession A. To determine the reduction to which the
donations, either inter vivos or mortis
causa, are subject, an aggregate is formed of all
property belonging to the donor or testator at the time of
his death; to that is fictitiously added the property
disposed of by donation inter vivos within three
years of the date of the donor's death, according to its
value at the time of the donation.
the active mass of the succession is determined and the
disposable portion is calculated, donations mortis
causa thereafter may be reduced to satisfy the forced
heirs' legitime. LSA-C.C. art. 1507. Further, if the
succession assets are not sufficient to satisfy the legitime,
the forced heirs may then bring an action for reduction
against donees of any inter vivos
donations made within three years of the decedent's
death. LSA-C.C. art. 1508.
heirs also have a right to receive an equal share of the
decedent's estate as that received by other heirs,
pursuant to LSA-C.C. art. 1227, et seq.
The starting [2014 0972 La.App. 1 Cir. 8] point for any
analysis of actual collation is LSA-C.C. art. 1227.
Succession of Fakier, 541 So.2d at 1376. Louisiana Civil Code
article 1227 defines " collation," i.e., "
actual collation," as the supposed or real return to the
mass of the succession which an heir makes of property that
he received in advance of his share or otherwise, in order
that such property may be divided together with other effects
of the succession. While historically, " actual
collation" was a right that all direct descendants of
the deceased had, the right to demand " actual
collation" is now limited to forced heirs only. LSA-C.C.
art. 1235, Revision Comment-1996(a). However, all children
and grandchildren coming to the succession, regardless of age
or capacity, are subject to " actual collation"
demands by a forced heir. LSA-C.C. art. 1228. Moreover, while
donations both mortis causa and inter vivos
may be subject to a claim for reduction where a forced
heir's legitime has been impinged, as the Supreme Court
has recognized, only donations inter vivos are
subject to a forced heir's claim for " actual
collation." Succession of Fakier, 541 So.2d at 1383.
to Succession of Fakier, the trial court's decision to
sustain the Pratts' exception of no cause of action would
be correct to the extent that plaintiffs alleged that they
were entitled to " actual collation" of the annuity
proceeds in order to fulfill the legitime. However, based on
our examination of plaintiffs' petitions in their
entirety, it is apparent that, in part, plaintiffs are
seeking to include the value of the annuity in the
calculation of the active mass of the succession for purposes
of LSA-C.C. art. 1505(A). Thus, the Pratts had the burden of
showing that an " insurmountable bar" exists to
including the amount of the annuity in the calculation of the
active mass of the succession for purposes of LSA-C.C. art.
1505. See Pierrotti v. Johnson, 2011-1317 (La.App.
1st Cir. 3/19/12), 91 So.3d 1056, 1062 (" An exception
of no cause of action is likely to be granted only in the
unusual case in which the plaintiff includes allegations that
show on the face of the petition that there is some
insurmountable bar to relief." ); Foti v. Holliday,
2009-0093 (La. [2014 0972 La.App. 1 Cir. 9] 10/30/09), 27
So.3d 813, 817 (" The burden of demonstrating that a
petition fails to state a cause of action is upon the
Succession of Fakier unequivocally establishes that annuities
are not subject to " actual collation," the court
in Fakier " expressly note[d]" that it was "
not pass[ing] upon the issue of whether the value of the
annuities should be fictitiously collated for the
purpose of calculating the active mass of the succession and
the corresponding amount of the legitime under LSA-C.C. art.
1505." Succession of Fakier, 541 So.2d at 1374 . Here,
the parties do not cite, nor have we found, any statutory or
jurisprudential authority unequivocally establishing that
annuities are exempt from the calculation of the succession
mass for purposes of LSA-C.C. art. 1505. Moreover, we note
that while LSA-C.C. art. 1505(C) and (D) state that
life insurance premiums and proceeds and
certain employment-related deferred compensation plans should
not be included in the calculation of the succession mass,
are not listed as being exempt from this
court is required to give effect to the pronouncements of the
legislature, even when the law is less than clear or where
there is no clear expression of how one provision is to be
interpreted in light of other provisions. In analyzing this
case, and in giving effect to the rights granted forced heirs
by LSA-R.S. 22:912(B)(1), it is clear that there is no
legislative or statutory remedy that fits squarely under the
other provisions of law addressing this subject matter.
Accordingly, after thorough and lengthy analysis and
extensive briefing by the parties, and giving effect to the
rights granted to forced heirs by LSA-R.S. 22:912(B)(1), we
conclude that insofar as [2014 0972 La.App. 1 Cir. 10');">0972 La.App. 1 Cir. 10]
plaintiffs' petitions demand that the value of the
annuity be included in the calculation of the succession
mass, the trial court erred in sustaining the exception of no
cause of action and dismissing their claims with prejudice.
to the extent that plaintiffs are asserting a direct cause of
action for " reduction" of the annuity against the
Pratts, we agree with the Pratts that any such claim would,
at this time, be certainly premature in these
proceedings. Likewise, determining whether
plaintiffs have a valid cause of action for "
reduction" directly against the Pratts is premature at
this time. To prove a claim for reduction of a
donation, it is necessary to prove that there has been an
impingement on the legitime of the forced heirs, i.e., that
the value of the donations, whether inter vivos or
mortis causa, made by the decedent have exceeded the
value of the disposable portion of the decedent's estate.
Clearly, such a determination requires a calculation of the
disposable portion, which in turn can be made only after a
calculation of the active mass of the succession under
LSA-C.C. art. 1505. Succession of Riggio, 468 So.2d 1279,
1290 (La.App. 1st Cir.), writ denied, 472 So.2d 33 (La.
1985). While the allegations of plaintiffs' petitions
must be taken as true for purposes of determining whether
they disclose a claim for which relief can be granted, there
is no allegation therein that
the active mass of the succession has been determined.
Accordingly, there has been no determination that
plaintiffs' legitime has been impinged. Thus, [2014 0972
La.App. 1 Cir. 11] we conclude that while plaintiffs may have
a cause of action for reduction regarding the annuity and its
proceeds in the future, these claims are premature at this
in finding merit to the Pratts' exception of prematurity,
we note that plaintiffs have filed pleadings in the ongoing
succession proceeding seeking identical relief to that which
is sought in this suit. The record reflects that a traversal
to the descriptive list was filed by Joju Cleaver, as natural
tutrix for Kayode in the related succession, alleging that
the decedent's annuity with American General " for
over a million dollars" must be included on the detailed
descriptive list to use in calculating the legitime of the
two forced heirs. The record further reflects that Tkumsah
has likewise filed a " petition to assert forced heir
rights" in the succession proceeding, alleging that the
annuity proceeds at issue are governed by LSA-R.S. 22:912(B),
subjecting the payment of any proceeds to any beneficiary to
the rights of forced heirs, and, further, that to the extent
that the beneficiary designations impinge on his rights as a
forced heir, he has a right of reduction against these
particular beneficiary designations. The instant record
likewise shows that the preliminary issue of whether Tkumsah
should be recognized as an heir to the decedent also has been
raised in the succession proceeding.
plaintiffs have raised these preliminary and identical issues
in the related pending succession action, as initiated by
their joint petition to open the succession, there is a
possibility of inconsistent opinions as well as the
possibility that the need for review herein could be mooted
by further action of the trial court where the succession is
pending. Accordingly, considering the record before us, and
pursuant to our authority under LSA-C.C.P. art. 2164 to
render whatever judgment is just, legal, and proper upon the
record on appeal, we agree that plaintiffs' claims [2014
0972 La.App. 1 Cir. 12');">0972 La.App. 1 Cir. 12] herein should be dismissed, but on
the basis of prematurity. Moreover, contrary to the ruling of
the trial court, the dismissal of plaintiffs' claims
shall be without prejudice.
we conclude that the trial court erred in sustaining the
exception of no cause of action insofar as plaintiffs have
stated a cause of action for the annuity to be included in
the active mass of the succession for purposes
of LSA-C.C. art. 1505. However, to the extent that plaintiffs
are asserting a cause of action for " reduction" of
the annuity proceeds directly against the Pratts, such
potential claims are premature as there has been no
calculation of the succession mass. Accordingly, plaintiffs
can not presently establish that they are entitled to a
reduction due to an impingement on their legitime. Thus, a
dismissal of plaintiffs' claims without prejudice is
appropriate. Moreover, to the extent that the judgment
dismissed plaintiffs' claims against Western National,
with prejudice, the trial court's judgment must be
above and foregoing reasons, based on our finding that the
petitions at a minimum disclose a cause of action for the
value of the annuity to be included in the active mass of the
succession for purposes of LSA-C.C. art. 1505, we vacate the
August 26, 2014 judgment of the trial court insofar as it
sustained Shona Pratt and Hiroji Pratt's exception of no
cause of action and dismissed Kayode Ji Jaga's and
Tkumsah Geronimo Jaga's claims with prejudice. However,
judgment is hereby rendered maintaining the Pratts'
dilatory exception of prematurity and dismissing
plaintiffs' claims against the Pratts without prejudice.
Further, the judgment of the [2014 0972 La.App. 1 Cir. 13');">0972 La.App. 1 Cir. 13]
trial court is vacated insofar as it dismissed with prejudice
the plaintiffs' claims against defendant, Western
National, and the matter is remanded for further proceedings.
Costs of this appeal are assessed equally to the parties.
GRANTING EXCEPTION OF NO CAUSE OF ACTION REVERSED IN PART AND
VACATED IN PART; JUDGMENT RENDERED MAINTAINING EXCEPTION OF
PREMATURITY; JUDGMENT OF DISMISSAL AFFIRMED, AS AMENDED; AND
J., CONCURS WITH THE RESULTS ONLY, AND ASSIGNS REASONS.
majority base their ultimate actions taken in this case on
maintaining the Pratt defendants' exception of
prematurity. It is my humble opinion that the legal issue of
prematurity is not before us in this appeal. The Pratts
(appellees) did not appeal the trial court's decision to
declare their exception of prematurity moot, nor did the
appellants list that issue in their assignment of errors or
issues to be reviewed.
no authority for us to raise the issue of prematurity on our
own accord under LSA-C.C.P. art. 926, as we could under
LSA-C.C.P. art. 927, dealing with the majority of the
suggest that the real issue is not one of prematurity, but
one of maintaining the subject matter jurisdiction and venue
of the probate court in the 16th Judicial District Court.
Louisiana Revised Statutes Code Civ. Proc. article 2811
establishes the venue and jurisdiction of where a succession
proceeding may be opened. Pursuant to LSAC. C.P. art. 44(C),
the venue provisions may not be waived. Furthermore,
LSA-C.C.P. art. 2812 provides authority for the district
court where the original proceeding was brought to stay any
other proceedings brought in another court of competent
believe these articles read along with LSA-C.C.P. art. 2164
justifies the position taken by the majority.
0972 La.App. 1 Cir. 1] McCLENDON, J., concurring in part and
dissenting in part.
concur with the majority to the extent that it finds the
plaintiffs' claims to be premature and dismisses same
without prejudice. However, to the extent that the majority
finds that the plaintiffs may have stated a cause of action
for a future claim for reduction of the annuity and its
proceeds, I disagree.
Civil Code Article 1505A provides:
To determine the reduction to which donations, either
inter vivos or mortis causa, are subject,
an aggregate is formed of all property belonging to the donor
or testator at the time of his death; to that is fictitiously
added the property disposed of by donation inter
vivos within three years of the date of the donor's
death, according to its value at the time of the donation.
annuity in this case was not an inter vivos donation
as it belonged to the decedent, was revocable during his
lifetime, and the proceeds were payable to the beneficiaries
only in the event of his death. See Succession of
Fakier, 541 So.2d 1372, 1383 (La. 1988). Further,
the annuity was not a donation mortis causa since
" [a] disposition mortis causa may be made only in the
form of a testament authorized by law." See LSA-C.C.
art. 1570. Accordingly, without a donation, there can be no
right of reduction.
regard to collation of annuities, the Louisiana Supreme Court
in Fakier recognized that the annuities were
not subject to actual collation, but left unanswered the
question of whether annuity proceeds are part of the
succession [2014 0972 La.App. 1 Cir. 2] or whether they are
subject to fictitious collation. Given that the annuity does
not qualify as a donation, there is no basis for fictitiously
collating the annuity proceeds. Nevertheless, the inquiry
does not end here. Having found that the annuity proceeds are
not subject to being fictitiously collated, the next question
which must be answered is whether the proceeds are part of
the aggregate formed of the decedent's property as set
forth in LSA-C.C. art. 1505A.
legislature has specifically provided that life insurance
premiums and proceeds shall not be included in the
calculation of the aggregate amount. LSA-C.C. art.
1505C. It is also well-settled in Louisiana
that proceeds of life insurance policies, if payable to a
named beneficiary other than the estate of the insured, are
not considered part of the estate of the insured. They do not
come into existence during his life, never belong to him, and
pass to the beneficiary by virtue of the contractual
agreement between the insured and the insurer. In re
Succession of Halligan, 03-1168 (La.App. 1 Cir. 9/17/04), 887
So.2d 109, 113, writ denied. 04-2619 (La. 12/17/04), 888
So.2d 875 (citing T.L. James & Co. v. Montgomery,
332 So.2d 834, 847 (La. 1975)).
is a device to shift and distribute risk of loss from
premature death, whereas annuity contracts are generally
recognized as investments. Halligan, 887 So.2d at
113. While life insurance proceeds do not come into existence
during the lifetime of the insured and do not belong to him
at any time, that is not true of an annuity contract, where
the payment to the beneficiary, if he or she survives the
annuitant, is a payment of a fund that belonged to the
annuitant during his lifetime. Succession of Rabouin, 201 La.
227, 231-32, 9 So.2d 529, 530 (1942); Halligan, 887
So.2d at 113. Annuity policies, by their very nature, allow
the funneling of existing assets to non-forced heirs, after
death, thereby contradicting the long-standing principles of
forced [2014 0972 La.App. 1 Cir. 3] heirship. Annuities lend
themselves more easily to the deprivation of the rights of
forced heirs by changing the character of an in-hand asset.
regard to annuities, LSA-R.S. 22:912B(1) contains the
language, " saving the rights of forced heirs."
However, in the context of collation, the legislative intent
as to whether annuities should be treated differently than
life insurance premiums and proceeds and, if so, how they
should be categorized is unclear.
compelled to answer this question today, I would agree with
the majority, in part, that in order to give meaning to the
phrase " saving the rights of forced heirs," a
cause of action may exist to add the value of the annuity at
the time of death to the mass of the estate, solely to
determine the legitime.
the legislature clearly intended to protect the rights of
forced heirs, the extent of said protection is ambiguous at
best and should be addressed by the legislature given the
significant policy considerations involved. Issues
that should be considered include whether the rights
preserved be limited to a calculation of the legitime or
whether the annuity proceeds should be treated as a donation,
either inter vivos or mortis causa, and
therefore subject to reduction. These are complex and
problematic issues that must be resolved. However, given the
posture of this case, they need not be determined at this
The parties do not dispute that the
succession proceeding is still ongoing.
Effective January 1, 2013, American General
Life Insurance Company became the successor in interest to
Western National. For purposes of this appeal, this entity
will be referred to as " Western National."
At the outset, we note that
Joju's claim for her marital portion is not before this
court. The judgment of the trial court addresses only the
claims of the minor children, Kayode Ji Jaga and Tkumsah
It is unclear whether Tkumsah's correct
name is Tkumsah Ji Jaga or Tkumsah Geronimo Jaga. For
purposes of this appeal, we will refer to him as Tkumsah
Geronimo Jaga as this is how he is most commonly referred to
in the record.
A judgment reflecting this ruling was
signed by the trial court on December 16, 2013. Upon the
lodging of this appeal, this court issued a rule to show
cause because the judgment lacked the appropriate decretal
language required to maintain the appeal as an appeal of a
final judgment. An amended judgment, signed on August
26, 2014, was then submitted to this court, which states that
" the exception of no cause of action filed by
defendants, SHONA SATOMI PRATT and HIROJI PRATT, is
sustained, and the claims of Kayode Ji Jaga and Tkumsah
Geronimo Jaga are dismissed, with prejudice, at their
cost." Pursuant to an order of this court, the record
has been supplemented with this amended judgment.
Accordingly, the appeal is maintained as an appeal from a
final, appealable judgment.
We further note that the judgment appears to dismiss
Kayode Ji Jaga's and Tkumsah Geronimo Jaga's claims
against all defendants, including
plaintiffs' claims against Western National. The record
before us reflects that the only exception filed by Western
National was a peremptory exception raising the objection of
nonjoinder of a necessary party, which was resolved or
rendered moot by the filing of an amended petition. Moreover,
while Western National purported in its brief in support of
the exception that it reserved its right to invoke a
concursus proceeding for the disputed annuity proceeds, there
is nothing before us to indicate that a concursus was ever
invoked. Accordingly, because Western National did not
seek a dismissal of plaintiffs' claims against it on an
exception of no cause of action (or otherwise), the trial
court erred in dismissing plaintiffs' claims against this
defendant. Thus, plaintiffs' claims against Western
National are not disposed of or addressed in this
These articles are found in Book III, Title
II " Donations," Chapter 3 " The Disposable
Portion and Its Reduction In Case of Excess," of the
Louisiana Civil Code.
These articles are found in Book III, Title
I " Of Successions," Chapter 11 " Of
Collations," of the Louisiana Civil Code.
As noted by the Supreme Court in T. L.
James & Co. v. Montgomery, 332 So.2d 834, 845 (La. 1975),
" [The] court has refused to extend the rationale of the
cases dealing with life insurance to other problems where the
conflict is between the urge to bring about freedom of
disposition and the fundamental and elementary principles of
forced heirship and the community property system embodied in
our Constitution and Civil Code." Further stating,
" Considering Louisiana's long and steadfast
commitment to the principles of forced heirship and community
property, [the] Court is unable...to adopt any theory or
decision which would erode those principles, and, under
certain circumstances, nullify them." Montgomery, 332
So.2d at 846.
Louisiana Code of Civil Procedure article
926(A)(1) provides for the dilatory exception raising the
objection of prematurity. Such an objection is intended to
retard the progress of the action rather than to defeat it.
LSA-C.C.P. art. 923; Deutsche Bank National Trust Company
v. Thomas, 2010-1453 (La.App. 1st Cir. 2/11/11), 57
So.3d 1185, 1187. An action is premature if it is brought
before the right to enforce the claim sued on has accrued.
LSA-C.C.P. art. 423. The objection of prematurity raises the
issue of whether the judicial cause of action has yet to come
into existence because some prerequisite condition has not
been fulfilled. Bridges v. Smith, 2001 - 2166
(La.App. 1st Cir. 9/27/02), 832 So.2d 307, 310, writ denied,
2002-2951 (La. 2/14/03), 836 So.2d 121.
Louisiana Civil Code article 1504
provides that " an action" for reduction of
excessive donations may be brought only after the death of
the donor, and then only by a forced heir, the heirs or
legatees of a forced heir, or an assignee of any of them who
has an express conventional assignment, made after the death
of the decedent, of the right to bring the action.
In so concluding, we specifically express
that we have pretermitted discussion of the Pratts'
responsive argument that the annuity is neither a donation
mortis causa nor donation inter vivos and,
on this basis, cannot ever be subject to "
reduction," as a discussion of the same is
Louisiana Civil Code Article 1505C
provides that " [n]either the premiums paid for
insurance on the life of the donor nor the proceeds paid
pursuant to such coverage shall be included" in
the calculation of the aggregate amount.
While Halligan concerned inheritance
taxes, I find its comparison of life insurance policies and
annuity policies informative.
An annuity such as this one, where the
annuity belonged to the decedent until the time of death, at
which point it transferred to the named beneficiaries, would
seem to be most appropriately characterized as a
donation mortis causa, were it not lacking
testamentary form. In contrast, an annuity purchased solely
for the benefit of third-parties during the lifetime of the
decedent, might be a valid inter vivos donation.
These are some of the issues presented in determining the
proper classification of annuities.