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Computation of the Legitime When Estate of Deceased Consists of Assets in Several States William F

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Computation of the Legitime When Estate of Deceased Consists of Assets in Several States William F Louisiana Law Review Volume 10 | Number 4 May 1950 Computation of the Legitime When Estate of Deceased Consists of Assets in Several States William F. Wilson Jr. Repository Citation William F. Wilson Jr., Computation of the Legitime When Estate of Deceased Consists of Assets in Several States, 10 La. L. Rev. (1950) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol10/iss4/11 This Comment is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. 1950] COMMENTS 525 country and should it be found that the revenue therefrom is not what it should be, it is hoped that the legislature will provide for proper enforcement of the tax rather than increase the rates or extend the tax to transfers of property which are not now subject to it. SIDNEY A. CHAMPAGNE* COMPUTATION OF THE LEGITIME WHEN ESTATE OF DECEASED CONSISTS OF ASSETS IN SEVERAL STDATES Limitations on freedom of testation are common in this coun- try.' Provisions which reserve some portion of a decedent's estate to the surviving spouse are found in some form in all states, varying from the ancient institutions of dower and curtesy to the idea of "forced portion" as provided by the Louisiana Civil Code,2 or "hell-fire" statutes limiting a testator's freedom to leave his estate to charity where he either is survived by close rela- tives or attempts to make the charitable gift during his last ill- ness.3 Two main types of statutes which restrict freedom of testa- tion must be distinguished at this point: First, those statutes which reserve an "indefeasible share" to "forced heirs,' 4 exem- plified by Article 1493 of the Louisiana Civil Code;5 second, those statutes which limit to a certain fraction of the estate the share disposable by the testator either generally or in favor of certain recipients, especially charities, but do not reserve any defeasible share to specific members of the testator's family." The Califor- nia "hell-fire" statute is a good illustration of the second type.7 That statute provides, in effect, that a testator who leaves certain * Graduate of February 1950; presently member, Baton Rouge Bar. 1. Kuhn, Comparative Commentaries on Private International Law (1937) 333; Rheinstein, Cases on Decedent's Estates (1 ed. 1947) 403; Bres- laur, Conflict of Laws in Restriction on Freedom of Testation (1942) 27 Iowa L. Rev. 425, n. 3, 426 n. 4, 5, 6, 7, 8, 9, 10, 11. 2. Arts. 1493, 1494, La. Civil Code of 1870. 3. Cal. Prob. Code (Deering, 1937) § 41. 4. Rheinstein, op. cit. supra note 1, at 439: "In contrast to the laws of the Civil Law countries, the laws of the several states of the United States, with the sole exception of Louisiana, do not grant an undefeasible share to the descendants of a testator. However, American law has developed some devices by which some measure of protection against disinheritance is established for all, or for certain groups of, the descendants." 5. "Donations inter vivos or mortis causa can not exceed two-thirds of the property of the disposer, if he leaves, at his decease, a legitimate child, one-half, if he leaves two children; and one-third, if he leaves three or a greater number. .." 6. Bordwell, Statute Law of Wills (1928) 14 Iowa L. Rev. 1, 172, 196- 198. 7. See note 3, supra. LOUISIANA LAW REVIEW [VOL. X heirs cannot devise or bequeath more than one-third of his estate to charity. The statute does not provide, however, that these enumerated heirs will receive the other two-thirds of the estate. Thus, a testator could validly devise one-third of his estate to charity, and the remaining two-thirds to a stranger. The problem raised by these statutes is one of computation of the disposable fraction of the estate, and not the computation of the indefeasible share reserved to forced heirs. It must be remembered, however, that, in both types of restrictive statutes the fundamental pur- 8 pose is to protect the family of the deceased against disinherison. Upon the death of a person testate, there arises the problem of determining how these various statutes apply to an estate the assets of which are located in more than one state or coun- try, and especially of how to compute the "indefeasible share" of a protected member of the family or the "disposable share" subject to the testator's free disposition. Before dealing with this problem, certain preliminary obser- vations should be made. With respect to statutes which restrict dispositions in favor of charitable associations or corporations in general, it is necessary that the purpose of the statute in question be inquired into.9 Was it intended to limit the capacity of the organizations enumerated in the statute to take, or was it in- tended to place a restriction on the capacity of the testator to give? Statutes of the former variety are referred to as mortmain acts.'0 The history of the mortmain acts is interesting, but it must suffice to observe that they were originally "aimed at the prevention of the accumulation of too much wealth in the hands of an economically powerful and, therefore, politically dangerous organization..."" The Magna Charta of 1217 contained such a pro- hibition directed at the Church. In the United States today mort- main acts exist in various forms. In many cases gifts to corpora- tions are prohibited unless exempted by the corporation charter or the statutory law of the state. In other states gifts to chari- table organizations are dependent upon governmental authoriza- 8. See note 4, supra. 9. Bordwell, supra note 6, at 194. 10. Rheinstein, op. cit. supra note 1, at 400: "Early in the Middle Ages, the canonist lawyers of the Church had established the rule that church lands, being devoted to the service of the Lord, could never return to tem- poral ownership and were, therefore, to be inalienable. Under this doctrine, the Church's land holdings could increase but never diminish, and land that had once come to the Church had come to a 'dead hand' (manius, mortua, mortmain) and was perpetually withdrawn from the market." 11. Ibid. 1950] COMMENTS tion. 12 In any case, however, the restriction is on the ability to 1 receive. 3 Statutes which limit the freedom of the testator to give must clearly be distinguished. Of course, in statutes which reserve an indefeasible fraction to certain heirs no difficulty arises, as the statute does not predicate the restriction upon the nature of the legatee or devisee, but upon the natural relation- ship of the heirs. The distinction must be kept in mind, however, in relation to certain "hell fire" statutes which restrict disposition to charitable, literary, scientific, religious, educational or mis- sionary societies. These statutes also predicate upon the testa- tor's having a husband, wife, parent, child or some other rela- tion. It has been generally held that when the statute restricts disposition when the testator leaves certain family relations, the 4 purpose of the statute is for the protection of these persons.1 Thus, such a statute restricts the freedom of the testator to give and is not a restriction upon the capacity of the organizations enumerated in the act to receive. The principal problem under discussion is best presented by means of a concrete illustration. Assume the following facts: T, a widower, dies testate as a domiciliary of State Y. His closest surviving relation is his daughter, Mary. In his will he has bequeathed all of his personal property to his daugh- ter and devised all of his real property to a local charity. T has left the following net assets: Immovables situated in State X worth $80,000 Immovables situated in State Y worth $60,000 Immovables situated in State Z worth $10,000 Movables situated in State X worth $40,000 Movables situated in State Y worth $20,000 Value of total net estate-$210,000 In State X there is a statute which provides as follows: "Disposition by will and last testament cannot exceed one- half of the estate of the testator if he leaves at his decease a legitimate child or one-third if he leaves two or more legiti- mate children." No such statute is in effect in States Y or Z. 12. Ibid. 13. For further literature on mortmain acts see Hazeltine, Mortmain, 11 Enc. Soc. Sci. 40. 14. Chamberlain v. Chamberlain, 43 N. Y. 424 (Ct. App. 1871). LOUISIANA LAW REVIEW [VOL. X Does the statute of X apply in the present case, and if so, how does it affect the distribution of T's estate? It is generally said that succession to immovables is deter- mined by the law of the state of the situs and succession to mov- ables by the law of the state of the decedent's domicile at the time of his death. Numerous cases enunciate this rule, 15 and noted writers in the field of conflict of laws are generally in accord. 16 The reason for applying the law of the situs (lex rei sitae) to problems of succession to immovables is basically the same one that calls for the application of the law of the situs to all problems concerning title to immovables. Such problems usually arise at the situs. If they are to be decided in some other forum, that court applies the lex situs to bring about uniformity of decision.
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