Carl Wade appeals the decision of the trial court holding conditional legacies in the will of his mother, Cladie Wade, to be invalid. For the following reasons, we affirm the decision of the trial court.
The facts of this matter were previously set out by this court in Succession of Wade, 20-589, pp. 1-3 (La.App. 3 Cir. 7/21/21), 326 So.3d 306, 307–09 (footnotes omitted)(second alteration in original), writ granted, judgment vacated, 21-1171 (La. 11/23/21), 328 So.3d 72, as follows:
Cladie J. Wade (Cladie) died testate on May 8, 2011, while domiciled in Rapides Parish, Louisiana. She effectuated a statutory will on August 13, 2007, dividing most of her belongings [equally] between her only children, Alma Rea Wade (Alma) and Carl Wade (Carl). The primary issue before this court concerns the following conditional legacies contained in Cladies will:
With respect to the property in Oakland, California which was owned by Theodore Harris and willed to me but placed in the name of Alma Rea Wades name [sic] for accommodating purposes only, I will and bequeath that this property be sold and after all obligations incidental to the sale of the property have been paid, the remaining portion is to be divided equally among CARL WADE, ALMA REA WADE and CLADIE J. WADE.
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If ALMA REA WADE does not sell the property in California and divide the proceeds from the sale in the manner I have previously suggested, I will and bequeath that all bequests I have made to Alma Rea Wade would be revoked and all of those bequests would go to CARL WADE. In other words, if she does not sell the property and divide the assets as requested, she is not to receive any bequests from me; Carl is to receive everything.
Alma and Carl both sought judicial determinations via motions for summary judgment on the legality of Cladies conditional legacies. Alma chiefly argued the condition on her legacy was contrary to the laws or to morals in violation of Article 1519 of the Louisiana Civil Code․
Carl argued the conditional legacies are valid and clearly indicated Cladies intent—sell the California property and receive your portion of my estate or keep the California property and receive nothing from my estate. He contended such an optional bequest is not repugnant to the law or to good morals, and to not acknowledge and enforce the conditional legacies is to give no effect to Cladies intended and rightful disposition of her estate. See La.Civ.Code art. 1612.
Following a hearing, the trial court granted summary judgment in favor of Carl, upholding the conditional legacies contained in Cladies will. In spite of this, Alma was allowed forty-five days to decide whether she would keep the California property or sell it and split the proceeds with Carl. If Alma satisfied the condition, she would receive her legacies from Cladie; if not, Carl would receive Cladies estate. Additionally, the trial court awarded Alma the reimbursement she requested from Cladies estate.
On appeal, both Alma and Carl argue the trial court erred. Alma contends the trial court legally erred in upholding conditional legacies she asserts violate public policy by allowing, in effect, Cladie to bequeath property she did not own. Carl, in his capacity as administrator of Cladies estate, suspensively appeals the trial courts reimbursement award in favor of Alma.
A five-judge panel of this court ruled that the conditions placed upon the California property were invalid, with one concurrence and one dissent issued. The Louisiana Supreme Court then reversed this court, finding that factual issues existed surrounding a subsequent codicil that pretermitted summary judgment being granted for either party. That “addendum” read:
The original will dated August 13, 2007 is to remain in effect “as is”. I revoke any and all subsequent wills I may have made revoking the contents of the will of August 13, 2007.
On this day, I reaffirm that the will and testament that I expect to be probated, upon my death, is the will and testament dated August 13, 2007 executed before the undersigned notary.
The purpose for my adding this addendum is to resolve the dispute involving the property that is located at 1501 Campbell Street, Oakland, California. With respect to that property which is in the name of Theodore Harris of which I am the owner, I will and bequeath that if the property is not sold prior to my death, I want the property to be owned equally by my two children, namely: ALMA REA WADE and CARL J. WADE. Further, if the property does not sell quickly or does not sell for what my two children feel is a fair and just amount, I will and bequeath that the property will continue to be rented and after all expenses are subtracted from the monthly rental, the residue will be divided equally between my two children, ALMA REA WADE and CARL J. WADE.
When the property in California is sold, then the proceeds will be divided equally between my two children.
The matter was remanded to the trial court, who then found the conditional legacies to be invalid after a trial, asserting that the conditions “involved the decedents exercising control over property in California which she did not own.” From that decision, Carl appeals.
ASSIGNMENT OF ERROR
On appeal, Carl asserts one assignment of error:
The trial court erred when it found that the conditional legacies contained in the last will and testament of Cladie Wade were invalid and unenforceable under Louisiana law. The trial courts decision is contrary to existing jurisprudence acknowledging the validity of similar conditional legacies and should therefore be reversed.
DISCUSSION
“The donor may impose on the donee any charges or conditions he pleases, provided they contain nothing contrary to law or good morals.” La.Civ.Code art. 1528. However, a testator cannot bequeath that which he does not own, and any such legacy is void to that extent. La.Civ.Code art. 1519; Succession of Marion, 163 La. 734, 112 So. 667 (1927). “In all dispositions inter vivos and mortis causa impossible conditions, those which are contrary to the laws or to morals, are reputed not written.” La.Civ.Code art. 1519 (bold emphasis ours). Both the 2007 testament and the 2009 codicil purport to make bequests of property in California that the testator did not own. They are both, therefore, without effect. La.Civ.Code art. 1519. The different language, though, is instructive in determining the intent of Cladie with respect to the conditional clause that Alma sell the Oakland property or forfeit all other bequests in the 2007 testament. The section which is not operative from the 2007 will states:
With respect to the property in Oakland, California which was owned by Theodore Harris and willed to me but placed in the name of Alma Rea Wades name [sic] for accommodating purposes only, I will and bequeath that this property be sold and after all obligations incidental to the sale of the property have been paid, the remaining portion is to be divided equally among CARL WADE, ALMA REA WADE and CLADIE J. WADE.
and from the 2009 codicil:
The purpose for my adding this addendum is to resolve the dispute involving the property that is located at 1501 Campbell Street, Oakland, California. With respect to that property which is in the name of Theodore Harris of which I am the owner, I will and bequeath that if the property is not sold prior to my death, I want the property to be owned equally by my two children, namely: ALMA REA WADE and CARL J. WADE. Further, if the property does not sell quickly or does not sell for what my two children feel is a fair and just amount, I will and bequeath that the property will continue to be rented and after all expenses are subtracted from the monthly rental, the residue will be divided equally between my two children, ALMA REA WADE and CARL J. WADE.
When the property in California is sold, then the proceeds will be divided equally between my two children.
This leaves open the question of the validity of the conditional legacy contained in the 2007 will, which states:
If ALMA REA WADE does not sell the property in California and divide the proceeds from the sale in the manner I have previously suggested, I will and bequeath that all bequests I have made to Alma Rea Wade would be revoked and all of those bequests would go to CARL WADE. In other words, if she does not sell the property and divide the assets as requested, she is not to receive any bequests from me; Carl is to receive everything.
There is no dispute that Cladie never owned the property in Oakland, but that it was bequeathed by Theodore Harris to Alma. The 2009 codicil, though, was added “for the purpose of ․ resolv[ing] the dispute involving the property that is located at 1501 Campbell Street, Oakland, California.” Therein, Cladie eliminates the requirement that the property be sold, and instead contemplates that the property continue to be rented and the proceeds be split between Alma and her son Carl. Alma could, then, carry out her mothers wishes by continuing to rent the property and splitting the proceeds of the rental income with Carl. But because she has not sold the property as required by the conditional clause—“If ALMA REA WADE does not sell the property in California and divide the proceeds from the sale in the manner I have previously suggested” in the 2007 will—Carl could still inherit all the property bequeathed to Alma in the 2007 testament.
Thus, as noted by Judge Savoie in his concurrence when this case was originally before this court on summary judgment, we find that the language in the 2009 codicil revoked not only the disposition of the California property contained in the 2007 will, but also the conditional legacy.
[T]he 2009 “addendum” revokes the disposition and related purported conditional legacy concerning the California property contemplated by the 2007 will, as the 2009 “addendum” is incompatible with the 2007 will to that extent. La.Civ.Code. art. 1608. Unlike the 2007 will, the 2009 “addendum” does not demand the sale of the California property and division of sale proceeds upon Cladie Wades (“Cladies”) death; rather, it contemplates Almas and Carl Wades joint ownership of the California property and gives them discretion to either sell the property and equally divide the sale proceeds or rent the property and equally divide the rental proceeds. Therefore, the 2007 wills disposition of the California property and the related conditional legacy were superseded by the 2009 “addendum” and are no longer enforceable.
Even though the disposition of the California property contemplated by the 2009 “addendum” is ultimately unenforceable due to an impossibility (i.e. Cladie did not actually own the California property, despite her statements otherwise in the will and “addendum”), we should not revert back to the 2007 wills disposition of the California property and related condition. Even if a document that contains a revocation of a prior testament is ultimately unenforceable as a testament, it nevertheless serves to revoke the prior testament. See In re Hendricks, 2008-1914 (La. App. 1 Cir. 9/23/09), 28 So.3d 1057, writ not considered, 2010-480 (La. 3/26/10), 29 So.3d 1256.
Because the 2009 “addendum” revokes the purported conditional legacy stated in the 2007 will, the trial courts summary judgment on the issue of the purported conditional legacy should be reversed on these grounds. It is unnecessary to consider the issue of whether the conditional legacy is an illegal violation of public policy.
Succession of Wade, 326 So.3d at 312-313 (Savoie, J., concurring.)
CONCLUSION
The judgment of the trial court is affirmed. Costs of this appeal are assessed to Carl Wade.
AFFIRMED.
PICKETT, Chief Judge.
GREMILLION, J., dissents for the reasons assigned by Judge Bradberry.
BRADBERRY, J., dissents and assigns reasons.