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In re Succession of Weber

Court of Appeals of Louisiana, First Circuit

April 29, 2019

IN THE MATTER OF THE SUCCESSION OF DIANA SALLY WEBER

          Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge, Louisiana Docket Number 100664 Honorable Timothy E. Kelley, Judge Presiding

          J. Tracy Mitchell Baton Rouge, LA Counsel for Executor/Defendant/Appellant, Allen R. Miller

          Randall A. Shipp Baton Rouge, LA and Leo J. D' Aubin Baton Rouge, LA Counsel for Defendant, Jackie F. Bordelon

          Deborah Berthelot Baton Rouge, LA Counsel for Tower Credit, Inc. & Baton Rouge Credit, LLC

          R. Gray Sexton Baton Rouge, LA Counsel for Intervenor/Defendant/Appellee, Jo Carol Herbert

          BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.

          WHIPPLE, C.J.

         In this appeal involving the disbursement of funds that were filed into the registry of the court, the ownership of which is disputed, the executor of the Succession of Diana Sally Weber challenges the trial court's judgment ordering that the funds be distributed pursuant to a judgment of possession rendered in another succession proceeding. For the following reasons, we dismiss the appeal and remand for further proceedings as ordered herein.

         FACTS AND PROCEDURAL HISTORY

         Diana Sally Weber died on December 17, 2015. Prior to her death, she executed a last will and testament dated October 5, 2015, bequeathing all of her property to Allen Robert Miller. About one month after her death, Miller filed a "Petition for Filing and Execution of Notarial Testament" and was appointed executor of Diana's estate.

         Thereafter, Baton Rouge Credit, LLC, filed a "Motion to Deposit Proceeds into the Registry of the Court" (hereinafter referred to as "the Motion to Deposit") in the succession proceedings, seeking to deposit principal sums and interest from two subordinated certificates of indebtedness ("debentures") and to have the court determine ownership of those funds because of conflicting ownership claims to the two debentures by the Succession of Diana Weber and the Succession of Donald Weber.

         According to the allegations of the Motion to Deposit, prior to her death, Diana had a debenture in the amount of $125, 000.00 in her name invested at Baton Rouge Credit, and on November 2, 2015, in the month prior to her death, Diana, accompanied by Miller, asked Baton Rouge Credit to change the payee on the debenture to "Diana Weber or Donald Weber." After Diana's death, Baton Rouge Credit issued a new debenture dated December 18, 2015, payable to Diana's brother "Donald Weber," which it alleged was to replace the debenture payable to "Diana Weber or Donald Weber." Baton Rouge Credit further averred that on January 1, 2016, it created a new debenture in the amount of $340.28 in Donald's name, representing the interest paid on the debenture from the date of Diana's death until December 31, 2015.

         As alleged in the Motion to Deposit and established in the record before us, Donald later died on May 9, 2017, and a First Amended Judgment of Possession dated November 7, 2017, rendered in another division of the Nineteenth Judicial District Court, recognized Carol Jo Herbert as Donald's testamentary legatee and ordered that she was entitled to be placed into possession of Donald's property, including the two debentures at issue.

         However, because ownership claims were being made by both the Succession of Diana Weber and the Succession of Donald Weber, and because Baton Rouge Credit was unable to determine what rights these parties have to the funds invested in the debentures, it moved to be allowed to deposit the remaining disputed proceeds into the registry of the court "for a determination of ownership." Baton Rouge Credit prayed that the disputed funds submitted to the registry of the court be recognized as consisting of the following amounts: as to the $125, 000.00 debenture, $126, 020.84 (representing $125, 000.00, plus $1, 020.84 in interest), together with $17, 500.08 in interest for 2016 and 2017 already paid to the Estate of Diana Sally Weber at the direction of Weber's attorney; and as to the $340.28 debenture, $343.05 (representing $340.28, plus $2.77 in interest), together with $47.52 in interest for 2016 and 2017 already paid to the Estate of Diana Sally Weber at the direction of Weber's attorney. It further prayed that after due notice to the Estate of Diana Sally Weber; Miller, as executor and universal legatee of Diana; and Carol Jo Herbert, as universal legatee of Donald, and a hearing thereon, "the court ...


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