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Succession of Foster

Court of Appeals of Louisiana, Fourth Circuit

July 31, 2019

SUCCESSION OF ELIZABETH SMITH FOSTER

          Appeal From Civil District Court, Orleans Parish No. 2014-08855, Division "A" Honorable Ellen M Hazeur, Judge.

          John A. E. Davidson Christopher J. Davidson DAVIDSON & DAVIDSON, COUNSEL FOR PLAINTIFFS/APPELLANTS.

          C. Hunter King THE KING LAW FIRM COUNSEL FOR DEFENDANT/APPELLEE.

          Court composed of Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Tiffany G. Chase

          Rosemary Ledet Judge.

         This is 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 affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         Before her death, Mrs. Foster was married twice. First, she was married to Clay Williams. Of that marriage, two children were born-Fay Tubman[1] 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. [2] Ms. Zeno has two children-Meleka King Pierce and Alvin King.

         On August 4, 1998, Mrs. Foster executed a notarial testament. The testament disposed of Mrs. Foster's estate as follows:

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 estate.

         On 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.[3]

         The 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.

         The 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.[4] Because this had not been done, the trial court, pursuant to La. C.C.P. arts 1971[5] and 1972, [6] annulled its prior judgment and ordered a trial.[7]

         After 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 findings:

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.

         Accordingly, the trial court ordered that the testament be filed and executed according ...


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