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SUPREME COURT OF LOUISIANA No. 95-C-2610 SUCCESSION OF STELLA VILLARRUBIA

LEMMON, J., Dissenting. The issue, as the court of appeal correctly framed it, is whether the executrix of the succession carried her burden of proving that plaintiff waived or renounced his forced heirship rights. I agree with the appellate court's conclusion that the executrix failed to carry her burden. The majority incorrectly characterized plaintiff's actions as a judicial confession under La. Civ. Code art. 1853. A judicial confession is a rule of evidence that deems the party's declaration to be proof of the facts or obligations therein confessed, but not of any other facts. Plaintiff's declaration, if a judicial confession, certainly did not confess a renunciation of his potential forced heirship rights. Plaintiff merely signed a receipt for the $1,000 legacy, to which he was clearly entitled under the will, and acknowledged that he was not entitled to any other property under the will. While plaintiff also consented to the rendition of the judgment of possession based on the will, he did not waive or renounce any rights as a potential forced heir, nor did he receive any consideration for waiving or renouncing those rights. The renunciation of succession rights by an heir must be express and will not be presumed.1 La. Civ. Code art. 1017. The affidavit in this case cannot be construed as a renunciation of plaintiff's forced heirship rights when those rights were not even mentioned in the document. If the executrix intended for the affidavit to serve as a renunciation of forced heirship rights, the affidavit should have expressly stated that fact.
"Renunciation is a formal act, which . . . can never be tacit" and "is never presumed." See 3 Marcel Planiol Treatise on the Civil Law

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