From Civil District Court, Orleans Parish No. 2014-08855,
Division "A" Honorable Ellen M Hazeur, Judge.
A. E. Davidson Christopher J. Davidson DAVIDSON &
DAVIDSON, COUNSEL FOR PLAINTIFFS/APPELLANTS.
Hunter King THE KING LAW FIRM COUNSEL FOR DEFENDANT/APPELLEE.
composed of Judge Daniel L. Dysart, Judge Rosemary Ledet,
Judge Tiffany G. Chase
Rosemary Ledet Judge.
a succession case. Dona Foster Zeno opened the succession of
her mother, Elizabeth Smith Foster, by filing a petition
attaching Mrs. Foster's notarial testament. The trial
court rendered a judgment ordering that the testament be
filed and executed according to its terms. From that
judgment, Ms. Zeno's brothers- Etheridge Foster, Larry
Foster, and Melvin Foster (collectively the "Foster
Brothers")-appeal. For the reasons that follow, we
AND PROCEDURAL BACKGROUND
her death, Mrs. Foster was married twice. First, she was
married to Clay Williams. Of that marriage, two children were
born-Fay Tubman and Artis Atkins. Second, she was married to
Charles Foster, Sr. Of that marriage, five children were
born-Ms. Zeno, the Foster Brothers, and Charles Foster, Jr.
 Ms. Zeno
has two children-Meleka King Pierce and Alvin King.
August 4, 1998, Mrs. Foster executed a notarial testament.
The testament disposed of Mrs. Foster's estate as
I give and bequeath to my daughter, Donna Foster [Zeno], as a
special legacy, my entire estate, including my home located
at 413, 415 State Street and the real estate on which the
home is situated, along with all furniture and fixtures and
any other assets that I might own at the time of my death, on
the sole condition that she allow Fay Tubman, Artis Atkins
and Meleka King to live at 415 State Street so long as they
may choose to do so.
In the event that my daughter, Donna Foster [Zeno], should
decide not to accept this condition, then I give and bequeath
to my children. Fay Tubman, Artis Atkins and Donna Foster
[Zeno] and to my grandchildren, Alvin King and Meleka King
[Pierce], in equal portions, the full ownership of my entire
October 2, 2013, Mrs. Foster died. On September 9, 2014, Ms.
Zeno opened Mrs. Foster's succession by filing a
petition. Attached to the petition was a document purporting
to be Mrs. Foster's notarial testament. The trial court
ordered that the testament be filed and executed according to
its terms and rendered judgment placing Ms. Zeno in
possession of Mrs. Foster's estate.
Foster Brothers filed a petition to annul the judgment,
asserting that the testament was not in original form and
was, thus, presumed revoked; that Ms. Zeno had not rebutted
the presumption of revocation; and, in the alternative, that
the terms of the testament were invalid as a matter of law.
In response, Ms. Zeno conceded that the testament attached to
the petition was not in original form, but she contended that
the trial court's judgment was nonetheless valid.
trial court found that the document attached to Ms.
Zeno's petition was not Mrs. Foster's original
testament and that, thus, for the judgment to be valid, La.
C.C.P. art. 2854 required that a notary conduct a search for
the original. Because this had not been done, the
trial court, pursuant to La. C.C.P. arts 1971 and 1972,
annulled its prior judgment and ordered a
the trial, on January 2, 2019, the trial court rendered
judgment in favor of Ms. Zeno and against the Foster
Brothers. In its judgment, the trial court made the following
After further review of the pleadings and the testimony
offered at the hearing, the Court finds that a copy of the
statutory testament offered by Donna Foster Zeno should be
permitted to be filed into the record of these proceedings,
the Court finding that the said document is a valid copy of
the last will and testament of Elizabeth Smith Foster . . . .
The evidence does not support that the decedent had either
revoked or destroyed the original of her testament prior to
her death. Further, the Court is satisfied, based on its
review of the pleadings and testimony, that, the
"Statutory Will" captures and otherwise, expresses
the decedent's testamentary intent.
The Court finds that the provisions of the will concerning
ownership of the property located at 413, 415 State Street to
be valid and enforceable. The first provision grants
ownership of the property to Donna Foster Zeno subject to a
use as a domicile by Ms. Zeno's half-sisters, Fay Tubman
and Artis Atkins, and Ms. Zeno's daughter, Meleka King as
long as they choose to reside there. The Court finds that the
decedent's testamentary intent was to create a usufruct
in favor of Fay Tubman, Artis Atkins and Meleka King with the
naked ownership of the property in favor of Donna Foster
Zeno. Thus, the enjoyment of the property by Fay Tubman,
Artis Atkins and Meleka King, by the terms of the testament,
necessarily ends at the earlier of their individual decisions
not to use the home or upon their deaths.
the trial court ordered that the testament be filed and
executed according ...