In re Succession Barbee

286 So.3d 461

SUCCESSION OF John Phillip BARBEE, Jr.

NO. 2019-CA-0575

Court of Appeal of Louisiana, Fourth Circuit.

NOVEMBER 27, 2019

Christy M. Howley, M. Elizabeth Bowman, BOWMAN & HOWLEY, 629 Lafayette Street, Gretna, LA 70053, COUNSEL FOR PLAINTIFF/APPELLANT, ROSE BARBEE

Steven E. Hayes, CHEHARDY SHERMAN WILLIAMS, One Galleria Blvd., Suite 1100, Metairie, LA 70001, COUNSEL FOR PLAINTIFF/APPELLANT, SUCCESSION OF JOHN PHILLIP BARBEE, JR.

(Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins )

Judge Regina Bartholomew-Woods

This civil appeal arises from the trial court's decision to deny the probate of the last will and testament of decedent, John Phillip Barbee, Jr., as well as the denial of the judgment of possession. Although no party to the succession challenged the testament, the trial court, sua sponte , contested the validity of decedent's signature. Despite affidavits from decedent's attorney of more than ten (10) years, two (2) witnesses attesting to the testament at issue, the affirming testimony of decedent's spouse of more than twenty (20) years, and evidence that decedent frequently revised his last will and testament, the trial court insisted that decedent's signature looked different on two separate testaments, and therefore, denied Appellants' judgment of possession and order of probate. For the reasons that follow, we find that the trial court abused its discretion in taking said action. Accordingly, we reverse the ruling of the trial court and remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND

Plaintiff-Appellant, Rose Aleta Barbee, is the surviving spouse and heir to the succession of her deceased husband, John Phillip Barbee, Jr. ("decedent") Plaintiff-Appellant, Janet Lynn Barbee, (Rose Aleta Barbee and Janet Lynn Barbee hereinafter collectively "Appellants") is Mr. Barbee's daughter and, as provided in Mr. Barbee's testament, the independent executrix of the estate.

PROCEDURAL HISTORY

On June 1, 2018, an original petition for order of probate was filed in Civil District Court for the Parish of Orleans. Attached to the petition, was a purported last will and testament of decedent dated February 13, 2014. After filing this purported last will and testament, the attorney handling the succession, realized that an earlier last will and testament had been filed, as opposed to the latest and most recent will and testament, which was executed by decedent and dated October 20, 2016. As a result, on November 2, 2018, Appellants filed a "Petition for Order of Probate to Correct Clerical Error." Appellants also filed a petition to probate the October 20, 2016 last will and testament. Appellants requested that the trial court sign the order probating the latter testament and the judgment of possession. However, on February 4, 2019, the trial court denied relief for both pleadings, notwithstanding the fact that there had been no contest to decedent's testament. The trial court, sua sponte , believed that decedent's signatures on the two testaments "varied drastically." Appellants filed affidavits executed by decedent's attorney and the attesting witnesses to the 2016 testament, and also filed previous testaments¹ to evince the similarity of decedent's signatures on each of the testaments. Despite the presentation of the various testaments, the trial court maintained its denial.

On February 11, 2019, Appellants filed a motion and order for new trial and to vacate denial of judgment; a hearing was held on April 1, 2019. On May 31, 2019, the trial court granted, in part, and denied, in part, Appellants' motion for new trial. Among other actions, the trial court ordered Appellants to deposit $150,000 into the registry of the court, and granted a partial judgment of possession. In its September 9, 2019 reasons for judgment,² the trial court explains that despite the fact that decedent's testament is uncontested by any party, the trial court "found that a purported signature of the decedent located on the first page of the testament varied drastically from previous wills as well as the signature on every other page of the same will," and for that reason, the trial court "finds the signature invalid" and refused to sign both the order of probate, as well as the judgment of possession. This appeal follows.

DISCUSSION

Assignment of Error

While Appellants raise as an assignment of error whether the trial court erred in denying, in part, the motion for a new trial and ordering Appellants to deposit $150,000 into the registry of the court, this appeal hinges on whether the trial court erred in challenging, sua sponte , the validity of decedent's signature, despite the testament being unchallenged by any party to the succession.

Standard of Review

"[I]t is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong.’ " Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). However, "[w]here one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence." Ferrell v. Fireman's Fund Ins. Co., 1994-1252, p. 7 (La. 2/20/95), 650 So.2d 742, 747. The Louisiana Supreme Court explained that "legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial" and thereby "materially affect the outcome and deprive a party of substantial rights." Evans v. Lungrin , 1997-0541, p. 7 (La. 2/6/98), 708 So.2d 731, 735 (citations omitted).

Notarial Testament

At the hearing on the motion for a new trial, Appellants presented the trial court with decedent's 2016 notarial testament in accordance with the formalities set forth by La. C.C. arts. 1577 - 1580.1. Specifically, La. C.C. art. 1577 provides

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:

(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.

(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this __ day of ____, __."

See In re Succession of Holbrook , 2013-1181, pp. 3-4 (La. 1/28/14), 144 So.3d 845, 848. In the present case, decedent's testament met the requirements as spelled out by the aforementioned codal article. It was executed in the presence of a notary and two (2) competent witnesses; decedent's signature appeared on each page of his testament, as well as, at the end of his testament; and the attestation clause at the conclusion of the testament was typed and executed exactly as contemplated by La. C.C. art. 1577(2).

No party to the succession challenged the validity of decedent's testament. However, the trial court, sua sponte , challenged the validity of decedent's signature because it opined that decedent's signature varied; and for that reason, the trial court refused to grant Appellants' order to probate and judgment of possession. Appellants assert that the trial court committed legal error in reaching this conclusion. In support of this argument, Appellants rely on Succession of Squires , 640 So.2d 813, 815 (La. App. 3rd Cir. 1994), which references Succession of Guezuraga , 512 So.2d 366 (La.1987), and provides "there were no allegations of fraud. Here the testimony of the notary and one of the witnesses is that they saw the testator initial the first page and sign his name to the last two pages. There is no evidence to the contrary. Clearly the decedent intended this to be his Last Will and Testament." Similarly, in the present case, in addition to the affidavits of decedent's attorney and the two (2) attesting witnesses, decedent's wife testified that the signature on the testament was, in fact, that of decedent and that he "had a variety of ways that he would write, and it would depend on how tired or irritated he was about who was asking for the signature." She further testified that she had "seen his...