#### Joseph A. AIREY, Jr., et al. v. Mrs. Marguerite SAMPSON, Widow of Joseph A. AIREY, Sr.

No. 4516.

Court of Appeal of Louisiana, Fourth Circuit.

June 7, 1971.

Rehearing Denied July 15, 1971.

*53Jacob H. Morrison, New Orleans, for plaintiff s-appellees.

Reuter, Reuter & Schott, Arthur C. Reu-ter, New Orleans, for defendant-appellant.

Kehl & Pickering, Kenneth E. Pickering, New Orleans, for defendant-appellant.

Before REDMANN, GULOTTA, and BARNETTE, JJ.

BARNETTE, Judge.

This proceeding was instituted by plaintiffs-appellees, The Hibernia National Bank in New Orleans and Mrs. Cecile Airey Dinkins, Curators of the interdict, Mrs. Marguerite Sampson Airey, for the *54purpose of obtaining from defendant-appellant, Kenneth E. Pickering, a document alleged to be the last will and testament of one Mrs. Marguerite Sampson Airey. The facts giving rise to this proceeding are, to say the least, unusual and therefore we feel it necessary to explain the background of this matter in some detail.

On August 2, 1969, Mrs. Marguerite Sampson Airey confected an olographic will in the presence of defendant-appellant, Kenneth E. Pickering. In this document Mrs. Airey appointed Mr. Pickering the attorney for her succession and, upon completion of the document, allegedly entrusted it to his care as depositary with instructions to keep it in a safe place until her death and not to let anyone gain possession of it.

Some three months later, on October 31, 1969, interdiction proceedings were begun against Mrs. Airey by her two children, Mrs. Cecile Airey Dinkins and Mr. Joseph Airey, Jr. After a hearing on the matter, Mrs. Airey was found incapable of managing her affairs and caring for her person and, on March 16, 1970, was adjudged an interdict. The plaintiffs-appellants in the instant proceeding were appointed as Mrs. Airey’s curators. The Hibernia National Bank of New Orleans was appointed curator of the property of the interdict and Mrs. Cecile Airey Dinkens was appointed curatrix of the person of the interdict. It is in their official positions as curators of the interdict that plaintiffs instituted this present proceeding.

In conjunction with the original pleading for possession of the will, defendant propounded certain interrogatories to plaintiffs. Plaintiffs in turn filed a “rule to strike” these interrogatories on the grounds of irrelevancy and immateriality. Defendant excepted to plaintiffs’ “rule to strike” alleging no right of action and improper procedure. All three of these matters were heard on the same day. The trial court rendered judgment in favor of plaintiffs and against defendant ordering:

> “ * * * that Kenneth E. Pickering turn over to The Hibernia National Bank in New Orleans, as Curator of the property of the interdict, Mrs. Joseph A. Airey, the olographic will dated August 2, 1969, and any other will or codicil or other papers belonging to the interdict or to which she is a party and any other property of the interdict that may be in said defendant’s possession; the said will to be turned over to Civil District Court who will turn over said will to The Hibernia National Bank in New Orleans, as Curator of the property of the interdict, Mrs. Joseph A. Airey, and said will to be placed in a Safety Deposit Box and said key to said box to be retained by The Hibernia National Bank in New Orleans, as Curator of the property of the interdict, Mrs. Joseph A. Airey; and said box not to be opened except under order of this Court.”

The court further ordered defendant’s interrogatories stricken from the record and overruled defendant’s exceptions of no right of action and improper procedure. From these adverse judgments defendant prosecutes the instant appeal.

Defendant argues that the trial court erred in ordering him to surrender the will to the court from there to be delivered to the plaintiff Bank. It is defendant’s contention that Mrs. Airey had a right to select a depositary with whom to leave her will for safekeeping. Further it is argued that since Mrs. Airey had made such a decision, the court must examine the motives of the curator in seeking to obtain the will. Defendant urges that the curator can have no possible need for the will as it is of no present value and is not an asset of Mrs. Airey’s estate and therefore the curator is not entitled to its possession.

Plaintiffs, on the other hand, contend that the curators stand in the shoes of the interdict and are empowered to exercise all rights which accrue to their ward, Mrs. Airey. Plaintiffs argue that Mrs. Airey had a right to revoke the deposit at any *55time and therefore after she was adjudged legally incapacitated to act on her own behalf, the curator is the only person capable of revoking a deposit and receiving back the item for safekeeping. Alternatively, plaintiffs argue that if this court should determine that the alleged instructions to Mr. Pickering to retain possession of the will until Mrs. Airey’s death created an irrevocable deposit, such arrangement was in fact a nullity because Mrs. Airey was notoriously insane at the time she appointed defendant as her depositary.

We note at this point that no testimony was taken before the lower court at the time of the hearing. The attorneys submitted the matter after oral argument and the trial judge reached a decision.

After a careful review of the record, we are of the opinion that the issues presented for our decision are solely questions of law. We are called upon to decide whether a will is in the nature of property belonging to the estate of the interdict and if so, whether the curator has a right because of the office which he holds to obtain possession of a will, if one exists, and a duty to preserve that document until the death of the interdict.

There is no doubt in the court’s mind that a will is property which belongs to the testator. It is true that such a document has no present value in the sense that one cannot place a price on its worth. But it is of tremendous value to the person who has written it. This document expresses the desires of the testator regarding whom he wishes to receive his estate at his demise. We can hardly conceive of any document which would be of greater personal value to anyone than his will. Nor can we conceive of treating a will as anything other than the personal property of the testator. It is a tangible, physical document which the testator owns and has a complete right, under law, to possess and control to the absolute exclusion of all others. The testator alone is free to alter or destroy this document at any time prior to death. Simply because a will does not become a thing of value to the heirs and legatees named therein until its probate at the death of the testator does not render it any the less the property of the person making it.

Counsel for defendant states that the question presented here is res nova in Louisiana, and that we should look to other jurisdictions for direction. Accordingly he has cited an 1892 California case which appears to have involved strikingly similar circumstances. Mastick v. Superior Court of City *&*County of San Francisco, 94 Cal. 347, 29 P. 869 (1892). We will agree with the rationale of that case in part, namely that a will is neither an asset nor an instrument which the curator can use in recovering an asset within the strict meaning of the word, but as stated above we do recognize the will as the *personal property*of the interdict which has great meaning, value and significance to her. For that reason her curator not only has the right to speak for her regarding its deposit for preservation, but is under a duty to do so. We do not agree with the California Court that the curator [guardian] occupies the same position as a third person in relationship to the interdict in a situation of this kind.

There is no dispute of the fact that the Hibernia National Bank in New Orleans is the lawfully appointed curator of the property of the interdict, Mrs. Marguerite Sampson Airey. Having found the will to be personal property the only other point which we need discuss therefore is whether as the curator, plaintiff has a duty to obtain the possession of the property of the interdict for the purpose of safekeeping.

There is no apparent threat to the preservation of the will in this case in defendant’s possession; indeed quite the contrary, but it is conceivable that a case could arise where the curator would be derelict if it did not take steps to gain possession of its ward’s will and it is for that reason, more than for any practical result to be gained *56in this case, that we have treated the issue of law as a serious one.

LSA-C.C.P. art. 4554 provides that the relationship between the interdict and the curator is essentially the same as the relationship between the tutor and the minor. It is further specifically provided in LSA-C.C.P. art. 4262 that the “tutor *shall*take possession of, preserve, and administer the minor’s property.” The duty of the curator vis a vis the interdict is the same in this regard. Thus in seeking to obtain possession of Mrs. Airey’s will the curator is merely attempting to comply with the mandatory language of LSA-C.C.P. art. 4262. See also LSA-C.C. art. 2951 which in pertinent part is as follows:

> 

> “If the depositor has changed condition, as if a woman marries or a person of full age falls under interdiction, the deposit can be restored only to the person who has the administration of the rights and property of the depositor.”

LSA-C.C. art. 2955 provides as follows:

> “The deposit must be restored to the depositor as soon as he demands it, even though the contract may have specified the time for its being restored, unless there be in the hands of the depositary, an attachment on the property or an opposition made on the owner.”

The defendant’s contention that the deposit is irrevocable is without foundation. The circumstance of the depositor’s interdiction does not render the deposit any more or less revocable, but merely affects the capacity of the depositor to demand its revocation and her capacity to receive the returned deposit. Since the curator stands in the shoes of the interdict-depositor, it is he and only he who may assert the right to obtain a deposited object. If the depositor may revoke the deposit at any time, then certainly the curator may do the same on behalf of the interdict, when in the exercise of its discretion such would be to the best interest of its ward.

Furthermore, if the deposit with instructions is treated as a procuration, it expired with the interdiction of the principal. LSA-C.C. art. 3027. For the reasons above stated the curator is the only one authorized to demand and receive the return of the thing deposited.

Much has been stated in briefs and oral argument about an alleged letter written by Mrs. Airey to the defendant shortly after the will was confected in which she purportedly requested the return of the document in question. However this letter is not before this court, having never been introduced into evidence. Moreover regardless of whether or not this letter is actually in existence and was received by defendant, it is immaterial to the decision of this matter. The authority of the curator to demand the return of Mrs. Airey’s will is not contingent on whether Mrs. Airey herself requested its return prior to her interdiction.

Nor do we deem it necessary to inquire into the motives of the curator seeking to obtain this particular item of property. The curator is charged with the prudent administration of the estate of the interdict. Once having obtained the interdict’s property the curator is charged with preserving it until the death of the ward. We can see no harm which will come to Mr. Pickering by the curator’s obtaining possession of the will. The curator is under a legal duty to preserve the document. It may not destroy it and would certainly be legally responsible if it were destroyed through its fault.

Since we have determined that the curator, by virtue of its office, is entitled to the possession of Mrs. Airey’s property, we are of the opinion that the trial court properly ruled on the plaintiffs’ “rule to strike” interrogatories filed by defendant and defendant’s exceptions to plaintiffs’ motion to strike. We note that regardless *57of the caption which plaintiffs have given to the document filed, in reality it is an objection to defendant’s interrogatories timely filed pursuant to LSA-C.C.P. art. 1491 and we have treated it as such. Since the issues involved herein are solely ones of law, we are of the opinion that the trial court properly relieved plaintiffs of the obligations of answering these interrogatories as they are designed to elicit facts immaterial to a decision of the matter before us. We are likewise of the opinion that the trial court correctly ruled on the exceptions filed by defendant.

We do not find the defendant to have been arbitrary in his refusal to surrender the will to the possession of the curator. As depositary he was in a position of trust which imposes a strict obligation. LSA-C.C. arts. 2937 and 2938. In view of the depositor’s having been interdicted after making the deposit it was not unreasonable for the depositary to refuse to give up the possession of the will until so ordered by the court. Accordingly we will exercise our authority under LSA-C.C.P. art. 2164 and assess the costs of this proceeding against the plaintiffs-appellees.

For the foregoing reasons the judgments appealed from are affirmed at the costs of the plaintiffs-appellees.

Affirmed.

REDMANN, Judge

(dissenting).

In my opinion the curator has not shown any entitlement to the relief sought by its rule to obtain, from the attorney to whom the interdict had earlier entrusted it, possession of the physical document purport-to be an olographic will of the interdict.1 The judgment appealed from should be set aside and either the rule dismissed or the matter remanded (to now permit trial of the allegation that the testatrix herself demanded return of the will prior to interdiction). ing

No Louisiana decision has been found controlling this case. I can find no expression directly on point by the civil law commentators readily available.

Decisions in other states are very few, but their views seem unanimously to support defendant in rule. 95 C.J.S. Wills § 306b reports:

> “In the absence of statutory authorization, the guardian of an insane person may not, during his ward’s lifetime, compel the surrender of a will executed before or during insanity.

> “In the absence of statutory authorization, the guardian of an insane person may not by petition .compel surrender to him of a will executed by the insane person before becoming insane. A guardian may not maintain an action during the lifetime of his ward to compel one in lawful possession of a purported will of his ward to surrender it for cancellation on the ground that it was executed while the ward was mentally incompetent, although the guardian may possibly have sufficient interest and right of possession to maintain a replevin suit to recover possession of such an instrument from one in unauthorized possession thereof.”

The Civil Code appears to me likewise to support defendant in rule’s position.

*58Perhaps the most fundamental pertinent principle is that the curator does not represent the *person*of the interdict; the curator is not “the heir” of the interdict and therefore is not the “universal successor” of the interdict, “possessed of all of his property *and*rightssee C.C. art. 884. It is only the universal successor who “represents *the person”*of the party to whose property and rights he succeeds; see C.C. art. 3556(28).

The plaintiff in rule is only “curator of the property” of the interdict, C.C.P. arts. 4550 and 4069, and its authority derives from appointment under C.C.P. art. 4550 and C.C. art. 404. The latter provides:

> “Within a month, to reckon from the date of the judgment of interdiction, if there has been no appeal from the same, or if there has been an appeal, then within a month from the confirmative sentence, it shall be the duty of the competent judge of the domicile or residence of the person interdicted to appoint a curator to his person and *estate.”*(Emphasis added; 1825 French text for estate was “biens.”)

C.C. art. *448*provides:

> “The word *estate*in general is applicable to any thing of which riches or fortune may consist. This word is likewise relative to the word *things,*which is the second object of jurisprudence, the rules of which are applicable to persons, things and actions.”

A will may be a *thing*but in the ordinary meaning of the terms it is not a thing “of which riches or fortune may consist” and is thus not part of the interdict’s estate. While Yiannopoulos, Louisiana Practice: Civil Law of Property, § 9, opines that under art. 448 estate and things are synonymous, he concludes “consequently, a thing according to the Code is ‘any thing of which riches or fortune may consist.’ ” He then observes:

> “The terminology of the Louisiana Civil Code, however, is neither accurate nor consistently used. Consistent terminology should distinguish between ‘estates’ and ‘things.’ The word ‘estate’ should apply to physical objects and rights having an economic value and the word ‘things’ to corporeal objects regardless of their pecuniary value and whether or not susceptible of appropriation. This would result in attributing a technical meaning to the word ‘estate’ while the word ‘things’ would be em-employed in accordance with non-legal everyday usage. * * * ”

I do not suggest that an interdict’s will is wholly beyond the curator’s power to obtain because not part of the interdict’s “estate.” But there are “things” which may be thought of as belonging to the interdict, such as his clothing, his marital status, and indeed his body, which it is not the function of the curator of his property to possess, preserve and administer. Accordingly the mere fact that an olographic will is a “thing” does not show entitlement in the curator of property sufficient to take it out of the hands of a person to whom the testator entrusted it.

By way of restatement, it may also be said that one’s will does not form part of his patrimony, being economically neither asset nor liability. See Yiannopoulos, op. cit., §§ 77-78. It is of course not subject to seizure by his creditors. It has value to the testator, but so does his very filiation, as of course does his anticipated inheritance from his parents. Even some rights of evident present economic value, such as a spouse's right to sue for separation of property, cannot be exercised by creditors, C.C. arts. 1991-1992; and presumably a curator of property (even though his rights *59are different and greater) could not sue for separation of property.

Because a curator is not the universal successor of the interdict and because a will is not part of the estate, or patrimony, of the interdict, a demand for possession of the will surely does not fall within the curator’s principal function of administering property, C.C.P. art. 4262, although in some circumstances the right and the obligation to *preserve*the will may fall to the curator because it rests in no one else.

In respect to a person who has no authority to retain a will made prior to interdiction, e. g., a hotel-keeper who found it in a room the interdict had occupied, such a holder has *no right*to retain it and no contractual obligation to preserve it, and the curator’s right to obtain it ought to be upheld for purposes of preservation. But in such a case the curator would not be *revoking*an arrangement made by the interdict.

In respect to a person to whom the testator did entrust the care of the will, the curator ought not to be able to obtain it except on a showing of reasonable necessity for purposes of preservation, because the will is not property, is not part of the “estate” of the interdict. Moreover, the curator does not merely seek to obtain a “thing” of the interdict, but seeks rather to revoke an arrangement for its custody made by the interdict. The curator cannot be allowed to revoke on grounds of the testator’s insanity at the time of making and depositing the will, because this question will ultimately decide whether the will can be probated and executed.

Even where a non-income-producing thing of economic value has been left by the interdict (while he had his faculties) with a third person, if it is not the kind of property the curator as a prudent administrator ought to sell (as, e. g., a family genealogy the interdict had loaned indefinitely to a public library), it appears to me that the curator should not be able to elect to revoke the arrangement the interdict made except on a showing that the action is reasonably necessary to preserve the property (or, as to that kind of property, on grounds of insanity at the time the arrangement was made).

Generally, curatorship is “the same as” tutorship, C.C.P. art. 4554 (see also its source, former C.C. art. 415). Yet a 16-year old minor can make a will, C.C. art. 1477, and this authority would presumably include the right to name in the will his succession’s attorney and also to leave the will with the attorney for probate when the need arose. The interdict, during a lucid interval if interdicted for insanity, can also make a valid will, Succession of Schmidt, 219 La. 675, 53 So.2d 834 (1951), and presumably likewise instruct his attorney to retain the will. The tutor or curator in such a case ought to be denied the right to demand the will, which is so plainly no direct concern of tutor or curator. Otherwise an unscrupulous tutor or curator, displeased by the will, might destroy it and claim the minor or interdict destroyed it to revoke it. As a minimum C.C. art. 407 should be invoked to require an under-curator to participate in the hearing of such a demand by a curator, which of course implies absence of absolute right on the part of the curator.

If the leaving of the will with the instructions here recited is a deposit, C.C. art. 2951 does not *oblige*its delivery to the curator upon the testator’s interdiction; that article merely *prohibits*its delivery to anyone else (including the testator).

If the leaving of the will were mandate, C.C. art. 3027’s revocation of mandate upon death or interdiction would not necessarily apply. The naming of one’s succession’s attorney in a will is not, of course, revoked by the death of the testator; Rivet v. Battistella, 167 La. 766, 120 So. 289*60(1929). The testator’s depositing of the will with the named attorney (especially under the instructions here alleged) facilitates execution of the will’s mandate and thus, in my opinion, such mandate as may be involved in the attorney’s preserving the will ought also to be excepted from art. 3027’s rule of revocation on death or interdiction.

The decision to reclaim the will, to revoke the original decision on such a personal matter, certainly does not appear to be within the normal function of an administrator of the property of an interdict, and should be denied the curator unless it shows some reasonable need for such action for the advantage of the interdict.

The majority notes there is no threat to preservation of the will here in the hands of the attorney, but observes that in some future case, where the will-holder is not so responsible, such a threat might exist. Yet that reasoning is equally applicable to the curator. It may be a source of consolation that *this*curator, a bank, will not lose the will; but in some other case a layman curator, ill-equipped to preserve a will, might use this decision as authority to take the will away from an attorney who obviously could better insure its preservation.

The question is ultimately one of legal principle.

Is a Louisiana “curator of property” merely an administrator of the “estate” of the interdict, as I understand our law basically to provide, who ought therefore to show some reasonable necessity for revoking arrangements made by the interdict prior to interdiction in matters unrelated to the administration of the interdict’s estate?

Or does Louisiana, in a case of first impression, now adopt (in Planiol’s words, Civil Law Treatise, I, § 2097) “the old theory of the [curator’s] omnipotence which modern law is abandoning more and more” ?

1

. I note but, because it applies only to national banks, have not explored the reference by 10 Am.Jur.2d Banks § 362, n. 4, to a Washington case “holding that a national bank cannot enter into a contract to take a will into its custody and deliver it at the death of the testator, a breach of which will render it liable in damages.” Here plaintiff in rule is a national bank, but of course not every curator is. An annotation at 141 A.L.R. 1277, 1279, reports that the Washington case, Myers v. Exchange Nat. Bank, 96 Wash. 244, 164 P. 951, L.K.A.1918A, 67 (1917), reasoned such a contract was beyond the bank’s power under the (then) federal statutes, and the bank was therefore *not liable,*for failure to timely produce the will, “either ex contractu or ex delicto.”