I’ve said this before, but the hilarity is in the footnotes.
Today’s case is from my Wills & Trusts class: Succession of Bacot aka, “the gay will contest.”
There’s a noteworthy discussion at the end of whether a man can be a concubine of another man. “A concubine is as essential to a state of concubinage as a ghost is to Hamlet.”
Fact section after the jump.
Succession of Bacot, 502 So. 2d 1118 (La.App. 4 Cir. 1987)
This appeal involves the validity, vel non, of a document purported to be the last will and testament of the deceased, Samuel Wilds Bacot, Jr. (Bacot). Collateral to the issue of the validity of the document in question is the issue of whether a man can be the concubine of another man.
Bacot, an admitted homosexual, never married and had no natural children. Throughout his lifetime, Bacot was also known as Samuel W. Bacot, Wilds Bacot and Pat Bacot.
On January 5, 1982, Bacot executed an authentic act wherein he adopted Elmo Orgeron, Jr. (Orgeron), an adult male, as his son and heir. On that same day, Bacot executed a last will and testament in statutory form, naming Orgeron as executor and sole legatee.
In September of 1984, Bacot was admitted to Charity Hospital in New Orleans (CHNO) suffering with acute chronic virulent type B herpes simplex. This disease caused a buildup of toxic ammonia on Bacot’s brain, which increased as his hospitalization progressed. Several weeks later on October 4, 1984, at approximately 2:00 a.m., Bacot asked Carolyn McLain (McLain), a CHNO nurse to bring him a pen and paper so that he could write a will. McLain honored Bacot’s request. That night, Bacot wrote the document in question.
It is short, is written on a single sheet of stenographic paper and reads, “I leave all to Danny”. The document is signed “Wilds Bacot” and contains a series of marks resembling a slash – date of either “10/4/84 or 4/10/84.” McLain later retrieved the document from Bacot. She signed, dated it, placed Bacot’s CHNO patient number on the document and placed it in his medical file.
Shortly thereafter, Bacot slipped into a coma and died on October 14, 1984. He never regained consciousness and never indicated to anyone the identity of the “Danny” named in the document.
On October 19, 1984, Orgeron petitioned the Civil District Court of Orleans Parish to probate the statutory testament of January 5, 1982. Several homosexual lovers of Bacot, Danny Washington, Danny Poirier and Danny Butler, intervened in the probate proceedings. Each attempted to probate the document in question asserting it to be Bacot’s olographic last will and testament and each claiming to be the “Danny” named as legatee.
In addition, Bacot’s cousins, H. William Jolly, III, Mary Etta Jolly, and Bob Conway Jolly, intervened asserting the statutory testament to be deficient in form and claiming to be the true owners of the succession assets. The Jolly’s later amended their original petition to allege the document in question to be the valid olographic testament of Bacot which supersedes the statutory testament.
Following a two day trial, the trial Judge decreed the document in question to be the valid olographic will of Bacot executed on October 4, 1984 and that, as such, it revoked the prior statutory will. The Court found Danny Washington to be the “Danny” referred to as Bacot’s intended sole legatee but limited his legacy to one-tenth (1/10) of the movable property of the succession under Civil Code Article 1481 finding Washington lived in open concubinage with Bacot. The Court based its decision on Washington and Bacot’s longtime homosexual love affair and cohabitation wherein they assumed duties and obligations usually manifested by married people. The Court decreed the remainder of the estate to Orgeron as Bacot’s adopted son.
[….]
It is a familiar rule of statutory construction that the words of a legislative act should not be extended beyond their proper and natural meaning in order to meet particular cases. When our legislature amended Article 160 to provide for termination of permanent alimony upon proof that the spouse receiving alimony was living in “open concubinage” the phrase “open concubinage” had been in our law for some 174 years. Our legislature did not see fit to extend the concept of concubinage to any other type of sexual relationship. In addressing this very issue, the court in Thomas v. Thomas, supra, noted:
“The term open concubinage has a well-established legal significance, and we believe that in employing this term, the legislature intended that it be accorded its traditional and firmly established meaning; had they intended otherwise, they could have employed a different precept which emphasized habitual sexual acts, rather than quasi-marital status.” Thomas, supra; at p. 884.
Thus, concubinage has traditionally been described and held to be a relationship in which a man and a woman, that is, two people capable of contracting marriage, are involved in an open, illicit sexual relationship approximating marriage. As has often been observed, the word concubinage describes “a status, and not mere acts of fornication or adultery, however frequent or habitual.” Succession of Jahraus, supra.; Succession of Keuhling, 187 So. 2d 520 (La. App. 3rd Cir. 1966); Succession of Franz, 232 La. 310, 94 So. 2d 270 (1957). The last sentence of article 1481, which removes the prohibition for those who later marry was designed to effect that end.
There is not now, nor has there ever been in our law a legal mechanism for recognizing marriage between persons of the same sex. See, La. C.C.Art. 88. Homosexuals living together, no matter what the duration, can never marry, and therefore such individuals can never be concubines to one another. A concubine is as essential to a state of concubinage as a ghost is to Hamlet. Thus, a man cannot live in open concubinage with another man. The trial court erred in finding that Civil Code Article 1481 applies to the instant case.
We need not address the issue of the validity of the statutory will as we have found the olographic will valid which revokes all prior wills.
For the foregoing reasons, the judgment of the trial court decreeing Danny Washington to be the concubine of Samuel Wilds Bacot, Jr. is reversed.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
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