Comment by M. Charles Wallfisch
A person who dies intestate expresses no will as to the transfer of his property upon death. The property in such an instance devolves according to the provisions of the Civil Code. A person who dies testate expresses a will and may vary the suppletive provisions of the Civil Code.
A testator plans the devolution of his property by making donations mortis causa in the form of a will. Presumably, a person makes a will because he intends his expressed desires to be carried out upon his death. That intent can be frustrated when a legacy lapses and devolves according to the rules of intestacy or when it vests in a legatee who dies so soon after his donor that the legatee never enjoys the property. In the latter case, the property devolves according to the succession of the legatee and not the original testator.
So that his intent may be carried out without being frustrated, a careful testator will seek to avoid the devolution of his property according to the rules of intestacy and the devolution of his property according to the succession of another. Until the 1970's, however, a Louisiana testator had only limited options for preventing those two means by which his intent could be frustated.
The vulgar substitution has historically been available to a testator to provide for a substitute legatee in the event that the instituted legatee does not accept the legacy. Swart v. Lane provided a clear example of the vulgar substitution. The testator named her child as her universal legatee (instituted legatee). She further provided that ‘in case of my child's death as well as my own,’ the testator's husband (substitute legatee) would be the universal legatee. The testator was pregnant at the time she wrote the will. The child was born alive forty-four days later. The child died within a few hours. The testator died a few hours after the child.
According to article 1521, which consisted of only one paragraph prior to 1972, which is now paragraph (A) of the article, a dispositio is valid when ‘a third person is called to take the gift, the inheritance or the legacy, in case the donee, the heir, or the legatee does not take it.’ In Swart, the testator's husband was called to take the legacy in case the child did not take. Having predeceased the testator, the child could not take. The testator's husband, therefore, was called to take as the universal legatee.
When a testator clearly names both a first legatee and a second legatee to take in the event the first does not take and the evidence shows that the first legatee has predeceased the testator, the substitution of the second legatee poses no problem to the civil law. The vulgar substitution has been and remains a common method by which testators may provide that their wills, and not the intestacy rules or the successions of their legatees, shall control the devolution of their property.
Historically in Louisiana, however, a testator could be deprived of that freedom when he died in a common disaster with his first legatee. According to the commorientes presumptions of the Civil Code, persons are presumed to have died in a delineated order when reciprocal intestate heirs die in the same event without any possibility of determining who actually died first. The French restrict the commorientes presumptions to intestate successions. In contrast, the Louisiana Supreme Court has applied the presumptions to reciprocal testators (who were also reciprocal heirs ab intestato) who died in the same disaster without any possibility of determining which one actually died first. Had the testator in Swart v. Lane been under age sixty and died in a common disaster with her child over fifteen, the child would have been presumed to have survived. The mother's property would have passed through the child's estate to the child's heirs.
That scenario occurred in Succession of Langles. A mother and daughter were reciprocal legatees. The mother was under sixty, and the daughter was over fifteen. They perished at sea when the steamship on which they were traveling collided with another ship. The court applied the commorientes presumptions to hold that the daughter survived the mother. Not only did the court hold that the presumptions applied to testate successions but also that the presumptions were irrebuttable. The application of the commorientes presumptions to testate successions limited the ability of a testator to determine the donee of his property. The presumptions restricted the freedom of testation allowed by article 1521.
Prior to 1979, another impediment to testamentary freedom in Louisiana was the prohibition against survivorship clauses. A survivorship clause states that a legacy is conditioned upon the legatee's survival for a period of time after the testator's death. Such a clause enhances the testator's ability to decide who receives his property.
About the Author
M. Charles Wallfisch.
Citation
61 Tul. L. Rev. 1515 (1987)