# Succession of Simms > Supreme Court of Louisiana · November 7, 1966 · 250 La. 177 URL: https://www.frixlaw.com/law-library/cases/9661741 ## Case - **Full name:** Succession of Lillie Weir SIMMS, Widow of Edward F. Simms - **Court:** Supreme Court of Louisiana - **Decided:** November 7, 1966 - **Citations:** 250 La. 177; 195 So. 2d 114; 26 Oil & Gas Rep. 24; 1966 La. LEXIS 2040 - **Precedential status:** Published - **Opinion:** Concurring in part by Hamlin - **Judges:** Fournet, Hamiter, Hawthorne, McCaleb, Hamlin, Sanders - **Cited by:** 31 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9661741 ## Opinion text HAMLIN, Justice (concurring in part and dissenting in part) : I was the organ of this Court in the case of National Surety Corporation v. Standard Accident Insurance Co., 247 La. 905 , 175 So.2d 263 . Therein I stated: “In the light of the above jurisprudence- and law, statutory and otherwise, we approach a solution of the instant matter,, having in mind the present philosophy that lawsuits should be decided on their-merits and should not turn on arbitrary or technical rules of procedure. Page-XIII, Report of the Louisiana Law Institute to accompany the Projet of the- *241 Proposed Louisiana Code of Civil Procedure.7” 1 I voted for a rehearing in this matter be•cause of the foregoing, believing that the :same result as reached on original hearing would have been reached had this case been ■considered on its merits. All parties apparently desire a disposition of this case on the merits. I will now proceed to discuss the merits. Article XIX of the will of Mrs. Simms, which is involved in this litigation, is quoted in the majority opinion; therefore, there is no necessity for repetition here. I find the following elements in Article XIX, which convince me that it has created a valid Trust: 1. There is a bequest “in Trust” to the named Trustees to be held and administered by them with broad discretionary powers. 2. The properties bequeathed to them as such Trustees shall be held by them for the legatees, the great-grandchildren of Mrs. Simms. The Louisiana property vested immediately in the great-grandchildren on the death of Mrs. Simms, subject, of course, to the Trust. 3. The duration of the Trust is during the natural life of Mrs. McCullar (A) and Mr. Franzheim II (B) if they survive Mrs. Simms. 4. Sub-division (C) creates a Trust by a bequest in Trust to the Trustees for the benefit of the minor great-grandchildren of Mrs. Simms, her legatees. Mrs. Reese is not even mentioned in Article XIX. She is a stranger to the will and to the Succession of Mrs. Simms. Mrs. Franzheim herself provided nothing extra for Mrs. Reese, her daughter; Mrs. Reese received only her legitime as a forced heir of her mother. Mrs. Simms intended to provide for her great-grandchildren as legatees. She used the word “bequeathed” in the last sentence of Article XIX. Mrs. Simms’ will is dated January 3, 1957; she died May 1, 1957. On July 21, 1958, by ex parte judgment, Mrs. Franzheim, Mrs. Simms’ daughter, and the Trustees were placed in possession of the property. Mrs. *243 Franzheim was cognizant of her mother’s intent to provide for her great-grandchildren as legatees and abided by it. Mrs. Franzheim died December 15, 1959; her will was ordered probated in Louisiana on January 20, 1965, after litigation in Texas. The laws and Constitutional mandate in effect at the time of the deaths of Mrs. Simms and Mrs. Franzheim were these: Louisiana Constitution of 1921, Art. IV, Sec. 16 (As amended by Acts of 1952, No. 208), provided: “ * * * No law shall be passed authorizing the creation of substitutions, fidei commissas or trusts estates; except that the legislature may authorize the creation of trust estates for a period not exceeding ten years from the settlor’s death as to a beneficiary which is not a natural person; Ten years from the settlor’s death as to a beneficiary who is a natural person or until the death of the beneficiary whichever is the longer pe riod; and provided further that this prohibition as to trust estates or fidei commissas shall not apply to donations strictly for educational, charitable, religious purposes or trusts created by employers for the benefit of their employees. * * * ” (Emphasis mine.) Act 209 of 1952, Section 2, provided: “Section 1811 of Title 9 of the Louisiana Revised Statutes of 1950 is hereby amended and re-enacted to read as follows: “1811: General Rule “A trust shall be created when a person (as that term is defined in R.S. 1792(8)) in compliance with the provisions of this Chapter transfers the legal title to property to a trustee in trust for the benefit of himself or a third person.” Act 81 of 1938 (Trust Estates Law of 1938), Title 2, Chapter 1, Section 5, provided : “A trust shall be created when a person in compliance with the provisions of this Act transfers the legal title to property to a trustee in trust for the benefit of himself or a third person.” (This Section became Title 9:1811 of the Louisiana Revised Statutes.) It is my opinion, after protracted study of the law and Constitutional provision in effect at the time of the deaths of Mrs. Simms and Mrs. Franzheim in their relation to Mrs. Simms’ will, that the will of Mrs. Simms does not contain a prohibited substitution. The Louisiana State Law Institute in a report of May 1, 1964, to the Governor and Members of the Legislature, to accompany the Proposed Louisiana Trust Code (which permits prohibited substitutions), correctly ■ stated that the constituent characteristics of a prohibited substitution are as follows: “1. A double liberality, or a double disposition in full ownership, of the- *245 same thing to persons called to receive it, one after the other; “2. A charge to preserve and transmit, imposed on the first beneficiary for the benefit of the second beneficiary; “3. Establishment of a successive order that causes the substituted property to leave the inheritance of the burdened beneficiary and enter into the patrimony of the substituted beneficiary.” The Trust under Article XIX of Mrs. Simms’ will contains no double liberality. The Trustees are to hold the testator’s prop■erty in trust for the great-grandchildren. There is no double disposition in full ownership ; full ownership is bequeathed to the great-grandchildren not after another legatee owns the property but after it is held by the Trustees for an enumerated period. Mrs. Simms in her will spoke of Mrs. McCullar and Mr. Franzheim II as beneficiaries, but no charge is imposed on them. They have no duties and can demand nothing under the will. Anything that they might receive is at the pleasure of the Trustees. They cannot, under any stretch of the imagination, be classed as true income beneficiaries. In truth and in fact, they are beneficiaries under inter vivos Trusts which are mentioned in Mrs. Simms’ will. "These Trusts, except insofar as the Trustees are designated, are not a part of Mrs. Simms’ wil’ The fact that Mrs. Simms stated that the instant properties would be held by the Trustees during the lives of Mrs. McCullar and Mr. Franzheim II (she could have stated a definite period of time) did not establish a successive order. According to the will, no property ever entered or left Mrs. McCullar’s and Mr. Franzheim II’s inheritances and thereafter entered the patrimony of the great-grandchildren. The further fact that Mrs. Simms stated in her will that if any of her great-grandchildren were not twenty-one years of age at the time they were to be vested with her property such property would pass and become the properties of the Trustees mentioned in other inter vivos trusts does not destroy nor do away with the ownership of the great-grandchildren. There are no substituted beneficiaries. Mrs. Simms’ intention to vest her great-grandchildren with the ownership of the described properties is express and clear. The reference to Trustees enumerated in inter vivos trusts (some reference having to be made to such trusts) does not make the manifestation of Mrs. Simms’ wish, intention and desire less clear in her will. I, therefore, believe that the instant Trust is valid and should have been so considered on the merits. *247 I respectfully concur in that part of the majority opinion which overrules the exception of no right of action, as well as the other exceptions filed in limine. I concur only for the reasons herein set forth. I respectfully dissent from that part of the majority opinion which invalidates the Trust created in Article XIX of Mrs. Simms’ will. . “1 The Report further states : ‘ * * * “ ‘The procedural philosophy of the proposed new code is reflected in a number of its articles. While differently phrased, all of these provisions are based on the simple premise that lawsuits should be decided on their merits, and should not turn on arbitrary or technical rules of procedure. Perhaps this procedural philosophy is summarized by Article 5051 of the proposed new code, recommended for adoption as a perpetual reminder to the courts: “ ‘The articles of this Code are to be construed liberally, and with- due regard for tlie fact that rules of procedure implement the substantive law and are not an end in themselves.’ ” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9661741. Public record. Not legal advice.