
    SUCCESSION OF Numa J. HELWICK.
    No. 93-CA-0433.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 27, 1993.
    
      Lawrence J. Fritz, Metairie, for appellant, Succession of Numa J. Helwick.
    Harry P. Gamble, III, Gamble & Gamble, New Orleans, for appellee, Aileen C. As-bury.
    Before KLEES, ARMSTRONG, and WALTZER, JJ.
   KLEES, Judge.

Anna H. Smith (Smith) appeals from a judgment ordering her removal as adminis-tratrix of the succession of Numa J. Hel-wick (decedent), and appointing Aileen C. Asbury (Asbury) as her replacement. The issue for review is whether the trial court had cause for removal.

Decedent died intestate May 27, 1983, while domiciled in Orleans Parish. He left no children and was predeceased by his parents. He was survived by his spouse, Blanche Pauline Asbury Helwick (Mrs. Hel-wick), and by two siblings, Joseph L. Hel-wick (Helwick) and appellant Smith. Hel-wick was appointed administrator of decedent’s succession on July 7, 1983, and shortly thereafter filed a descriptive list showing decedent’s share of the community assets to be $26,859. For the next two years, Helwick administered decedent’s succession on behalf of decedent’s surviving spouse, Mrs. Helwick, who was in a nursing home suffering from Alzheimer’s disease.

Mrs. Helwick died intestate on December 10, 1985. Because of Mrs. Helwick’s Alzheimer’s condition, Smith takes the position that Mrs. Helwick had not accepted decedent’s succession at the time of her death. Mrs. Helwick’s sole surviving heir was her brother, Walter M. Asbury (Mr. Asbury), husband of appellee. Mr. Asbury died testate on November 11, 1991, leaving his surviving spouse, appellee Asbury, as his sole heir. At the time of his death, Mr. Asbury had neither accepted nor rejected the succession of Mrs. Helwick. Thus, during the course of eight years, the right to decedent’s estate had passed along as follows:

1. from decedent to his surviving spouse, Mrs. Helwick, on May 27,1983;
2. from Mrs. Helwick to her brother, Mr. Asbury, on December 10, 1985;
3. from Mr. Asbury to his surviving spouse, appellee Asbury, on November 11, 1991.

Meanwhile, on August 13, 1990, Helwick died while still administrator of decedent’s succession. On December 10, 1990, appellant Smith, as sister of decedent, was appointed administratrix. On April 22, 1992, appellee Asbury filed a motion requesting an accounting of the succession and the removal of Smith as administratrix.

Following a May 8, 1992 hearing, the trial court ordered Smith to file an accounting, but declined to remove her as adminis-tratrix. On June 22, 1992, Smith filed an “interim account” for the period January 1987 through April 1992.

On June 23, 1992, Asbury once again filed a motion requesting an accounting and the removal of Smith as administratrix. In her motion, Asbury asserted that Smith’s “interim account” was “absolutely worthless.” Asbury requested that “a full accounting of all funds received and disbursed from May 27, 1983 be made up to and including the present time by not only the current administratrix, but by the former administrator Joseph L. Helwick. * * * In the absence of the above mover requests that the Court order all records of this administration, both in the hands of Joseph L. Helwick’s wife and the present administratrix Anna Helwick Smith, be turned over to mover so that a proper accounting can be prepared.”

On July 17, 1992, Smith filed an exception of no cause of action, arguing that Asbury was a stranger to decedent’s succession because Mr. Asbury did not accept the succession of Mrs. Helwick prior to his death. On August 21, 1992, the court denied this exception and removed Smith as administratrix. Asbury was appointed ad-ministratrix on September 16, 1992. Shortly thereafter, Smith filed a writ application with this court as to her exception of no cause of action. We denied writs November 6, 1992.

On November 19, 1992, the trial court signed a final judgment denying Smith’s exception and ordering the removal of Smith as administratrix. Smith subsequently brought this suspensive appeal. We affirm.

On appeal, Smith raises numerous arguments as to whether Asbury had a right to succeed to the estate of decedent. Asbury takes the position that these arguments are inapplicable, and that the sole issue for review is whether the trial court had cause to remove Smith as administra-trix. We agree with Asbury, and conclude that the trial court had cause for removal.

La.C.Civ.P. Art. 3331 provides, “A succession representative shall file an account annually and at any other time when ordered by the court on its own motion or on the application of any interested person.” La.C.Civ.P.Art. 3182 grants the trial court discretion to discharge “any succession representative who * * * has failed to perform any duty imposed by law or by order of court * *

It is clear from the record that the court ordered Smith to file an account of the succession on two occasions, and that Smith failed to do so. Although Smith argues in brief that she filed a complete accounting for the period of her administration, a review of her only accounting, the document labeled “interim account,” reveals that this document presents only a cursory listing of income and expenses. In addition, the few figures presented in the document do not add up, making it difficult, if not impossible, to draw a conclusion as to the state of decedent’s succession. After this document was filed, the trial court once again ordered Smith to file an accounting, evidencing its conclusion that the “interim account” was insufficient. Under these circumstances, we conclude that the trial court had cause for dismissal under La.C.Civ.P.Arts. 3182 and 3331 for Smith’s failure to file an account.

Despite our holding that Smith was properly dismissed for cause, we will briefly examine Smith’s assertion that Asbury does not have a right to succeed to decedent’s estate. The underlying premise of Smith’s arguments is that the right to accept a succession expires upon the death of the heir — in this case upon the death of Asbury’s husband, Mr. Asbury, who died without accepting Mrs. Helwick’s succession. This position is contrary to La.C.C. Art. 1007, which provides, “Not only the person who is entitled to an inheritance may accept it, but if he dies before having expressly or tacitly accepted or rejected it, his heir shall have a right to accept it under him.” Under the plain wording of this article, an unexercised right of acceptance is passed along at death. In addition, La. C.C. Art. 1017 provides, “The renunciation of a succession is not presumed, it must be made expressly by public act before a notary, in presence of two witnesses.” Neither Mrs. Helwick nor Mr. Asbury renounced decedent’s succession in the manner required by La.C.C. Art. 1017. Thus, even assuming that neither Mrs. Helwick nor Mr. Asbury ever exercised their right of acceptance, their right remained viable, and was passed along through operation of La. C.C. Art. 1007, first to Mr. Asbury upon the death of his sister, Mrs. Helwick, and then to Asbury upon the death of her husband, Mr. Asbury. Under La.C.C. Art. 1007 and the facts of this case, Asbury has a right to accept the succession of decedent.

Smith fails to mention La.C.C. Art. 1007 in her appellate brief, raising arguments instead under La.C.C. Arts. 880, 881, 882, 883, 889, 894, and 949. Having reviewed these articles and Smith’s accompanying arguments, we conclude that Smith’s arguments are off point and in no way counter the right of acceptance conferred by La. C.C. Art. 1007.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

WALTZER, J., dissents with written reasons.

WALTZER, Judge,

dissents with written reasons.

This is an appeal from a judgment of the Civil District Court dated November 19, 1992 providing as follows:

The court, after reviewing the pleadings, the evidence and the arguments of counsel, denies the Exceptions and orders the removal of the Administratrix Anna H. Smith.

From that judgment, Anna H. Smith, through counsel, has suspensively appealed, posting a bond of $40,000.00.

This court reviews writs and appeals taken from a specific judgment, a piece of paper entitled judgment with a specific date and judge’s signature on it. The judgment may be dispositive of the principle object of the suit or may be dispositive of an intermediate matter. The above judgment is dispositive of an intermediate matter. The above quoted judgment is not an appealable judgment because it is not the final judgment dispositive of the principal object of the suit. Rather it is an interlocutory order which is reviewable only on writ. At this time, the issues of who are the heirs who have right to possession are not before us because:

1.The appeal was not taken from a judgment of possession.
2. There is no judgment of possession in the record before us.
3. There is no transcript of a hearing on whether or not Blanche Asbury Hel-wick tacitly accepted the succession by various acts such as taking furniture, clothing or other keepsakes of the defendant to her location in the nursing home.

In short, those issues are not properly before us because there is no trial court judgment deciding them, no appeal was taken on such a judgment, and there is no hearing transcript on those issues.

Having delineated what is and is not properly before the court at this time, the only issue before the court is the November 19 judgment. A review of the record indicates that the trial court erred in granting the judgment because there is virtually no evidence in the record before us which supports the motion and mover failed to carry her burden of proof. The transcript before us is likewise highly deficient. This ruling does not prevent the parties from filing another rule and holding another hearing at which time witnesses will be presented, evidence introduced and a record built.

The instant succession is of a small dollar value. Its main asset is immovable property as follows:

TWO CERTAIN LOTS OF GROUND, together with all the buildings and improvements thereon, and all of the rights, ways, privileges, prescriptions, servitudes and advantages thereunto belonging or in anywise appertaining, situated in the Second District in Square No. 20 included in that portion of ground purchased by the New Orleans Land Company from the Southern States Fair and Pan American Exposition, on August 7, 1915, said lots are designated by the Nos. 21 and 22 on the map of Homedale Park Annex, prepared by J.F. Coleman, Engineer, under date of June 1916, in that square bounded by St. Louis, Vicksburg, Voisin and Greenwood Streets which said lots measure as follows: Lots 21 and 22 measure each twenty (20') feet front on Greenwood Street by a depth between equal and parallel lines of one hundred twenty-two (122') feet more or less towards Voisin Street. The buildings and improvements on the hereinabove described property are designated as Municipal Nos. 809-11 Greenwood Street.

The property is valued at approximately $40,000 total, which is inexpensive property for New Orleans real estate. If it was separate property, then Mr. Helwick’s half would go to his collaterals. We do not know if the property was community or separate property as there has been no evidence presented. If it was a community property home, then Mrs. Helwick owned half in her own right. In addition, to the real estate the Succession of Numa Hel-wick also indicated Cash on hand of $13,-918.00, half of which was owned by the widow and was not part of the succession property. Hence the total assets equaled $53,918.00, $26,859.00 of which was owned by Mrs. Helwick and $26,859 of which was succession property. Because the principal asset was real estate which required maintenance, the original succession administrator used funds from the succession to pay water bills, utility bills, property taxes, etc. Additionally, he paid Mrs. Helwick’s nursing home bills.

The majority opinion fails to take into account that there may have been a tacit acceptance by Mrs. Blanche Helwick and that there may be separate property claims by the collaterals of Joseph L. Helwick which would interrupt the line of inheritance so neatly laid out in favor of Aileen Coleman (Mrs. Asbury). Additionally, the majority fails to consider the crux of Anna Helwick Smith’s argument under C.C.P. Art. 3331 “A succession representative shall file an account annually and at any other time when ordered by the court on its own motion or on the application of any other interested person.” Mrs. Smith did file a succession accounting for the period that she was succession administrator. She did not file an accounting for the period that someone else, her brother Joseph Helwick, was succession administrator. This is a small dollar value succession and from the record it is obvious that with the exception of Aileen Coleman, the individuals involved are not financially sophisticated. Obviously, Joseph Helwick did not keep detailed records when he was succession administrator, hence Mrs. Smith was not able to provide a detailed accounting for the period of time when someone else was the succession administrator. She, however, should not be penalized for someone else’s lapse, if it in fact was one. Perhaps Joseph Helwick believed or everyone in the family agreed that everything should go to pay Blanche Helwick’s nursing home bills. We note that Aileen Coleman’s husband refused the succession because he did not want to be responsible for Blanche Helwick’s nursing home and medical bills. In law we often say that a person is not required to undertake a vain and useless act. Ordering Mrs. Smith to undertake an act which cannot be accomplished because the underlying records do not exist is ordering her to perform an impossibility and ordering her to undertake a vain and useless act. She should not be penalized for failing to do the impossible and it is unreasonable for this court to expect her to do the impossible.

Lastly we note that in the prior writ application Aileen Coleman, an out of state resident has universally declared that the immovable property is hers alone and she has placed the property up for sale and declared her intention to sell it and return to her out of state home with the cash. She is doing this without a judgment of possession in the instant case, arguing that the judgment of possession in her husband’s succession in Arizona is translative of title to the property in the instant succession. She is thus attempting to liquidate the only asset and remove herself and the cash from the jurisdiction of this court, all without a judgment of possession. We are appalled that the majority is willing to let this happen. Title examiners will have a field day with this property.

For the reasons discussed, the judgment of the district court should be vacated, annulled, and set aside and the matter remanded for further proceedings.  