Surviving Husband Receiving Lifetime Usufruct Was Required to Post Bond Where Some Owners of Naked Title Were Children of a Previous Marriage of Deceased Wife.

The decedent’s will bequeathed to her husband a life-time usufruct (use right) over her community property and separate property. Her will provided that the husband was entitled to sell the property subject to the usufruct. After the decedent’s death, the probate court entered a judgment ruling that the husband was entitled to a one-half interest in the decedent’s community property, as well as a usufruct for his lifetime of the remaining undivided one-half interest, as provided by the decedent’s will. The judgment also provided that an undivided one-eighth interest in the community property (subject to the usufruct) was to vest in each of the decedent’s children, two of which were from a prior marriage. Approximately 14 years after the entry of the judgment of possession, one of the decedent’s children from her first marriage filed a petition in the succession proceeding seeking to terminate the usufruct based upon allegations that the husband had sold property subject to the usufruct without authorization from the owners of the naked title and that he intended to sell more in the future. The trial court granted partial summary judgment for the husband as to the question of whether the judgment of possession incorporated the terms of the will (allowing the husband to sell the property). The trial court also entered judgment for the husband on the remaining claims and found that he was not required to post bond. On appeal, the court found that the trial court correctly ruled that the judgment of possession incorporated the terms of the will. However, the court found that the trial court erred in not requiring the husband to post bond, ruling that under Louisiana law, a surviving spouse who receives a legal usufruct over estate property is required to post security if the owners of naked title are children of a previous marriage of the decedent. The court remanded for a determination of the proper amount of the security (which was to be in the trial court’s discretion). The court found that although the record supported a finding that the husband had acted as a prudent administrator, the posting of security was mandatory under the law. In re the Succession of Beard, No. 2013 CA 1717, 2014 La. App. LEXIS 1514 (La. Ct. App. Jun. 6, 2014).

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