## Facts

- Albert P. Firmin died testate on February 2, 2003.
- In his will, Firmin left his surviving spouse, Valerie Bosworth Firmin, (1) full ownership of household furniture, belongings, appliances, and personal effects, and (2) a personal servitude of “use and habitation” of the marital home at 24 Chatham Drive in New Orleans.
- The Chatham Drive home was encumbered by a pre-existing mortgage.
- Firmin’s will created a trust for the benefit of his two adult daughters from a prior marriage and placed ownership of the home and the remainder of Firmin’s property into that trust, subject to Mrs. Firmin’s right of use and habitation and other special legacies.
- Firmin appointed his sister, Henrynne Louden, as executrix of the succession and trustee of the testamentary trust.
- The will conditioned Mrs. Firmin’s continued use and habitation on stated duties: she could not vacate the premises for more than six months and had to care for the property as a prudent administratrix, make reasonable repairs, pay taxes, and maintain fire and extended coverage insurance.
- The will did not expressly require Mrs. Firmin to make mortgage payments or to pay mortgage interest.
- Several months after Firmin’s death, Mrs. Firmin filed a motion to compel the executrix to pay the mortgage on the home.
- The executrix opposed and filed a counter motion contending Mrs. Firmin was responsible for paying the mortgage (including interest) because she held the right of use and habitation.
- The trial court ruled for Mrs. Firmin, finding no legal authority that required her, as a habitee, to pay the mortgage interest; the executrix appealed.

## Issues

1. As between a surviving spouse who holds a testamentary right of use and habitation and the succession/trust that owns the home, who is responsible for paying interest on a mortgage encumbering the home at the decedent’s death?

## Decision

- The Louisiana Fourth Circuit affirmed.
- Mrs. Firmin, as holder of a right of use and habitation, was not required to pay the interest on the mortgage note.
- The obligation to pay mortgage interest remained with the succession/owner (the trust holding title), absent express testamentary language shifting that burden to the habitee.

## Legal Principles

- A right of use and habitation is a personal servitude that gives a person the right to live in a home owned by another; it is narrower than usufruct and does not, by default, transfer ownership-type financial burdens to the holder.
- A court interprets a testament by giving effect to the testator’s expressed conditions; when the will lists specific obligations for the habitee (taxes, insurance, reasonable repairs, prudent administration), additional duties such as paying mortgage interest are not added without clear language.
- Mortgage interest on debt existing at death is treated as a charge tied to ownership of the property, not an ordinary maintenance expense of the habitee, unless the testament provides otherwise.
- The succession’s representative cannot condition a legatee’s enjoyment of a granted right of habitation on paying mortgage interest when neither the Civil Code provisions governing habitation nor the testament imposes that obligation.

## Conclusion

In *In re Succession of Firmin*, the Fourth Circuit held that a surviving spouse granted testamentary use and habitation of a mortgaged home must satisfy the duties the will expressly places on her (such as taxes, insurance, and reasonable repairs), but she is not responsible for mortgage interest absent clear language shifting that cost from the succession/trust that owns the property.


In re Succession of Firmin, 938 So.2d 209 (2006)