Background
Miriam Mandel Sklar, wife of a prominent northwest Louisiana oil producer, died in 2010 leaving a substantial estate that included two valuable Impressionist paintings: Raoul Dufy’s L’entrée du port and Maurice Utrillo’s Rue Saint Rustique à Montmartre, together appraised at over $1 million. Her will named her son Howard Sklar as independent executor and left the residue of the estate, including artwork, to Howard and his sister Suzanne. Howard was appointed executor in April 2010 but over the next twelve years filed no formal accounting and obtained no judgment of possession for the paintings, while quietly retaining the Dufy and Utrillo for himself.
In 2020, a grandchild, Jonathan Simons, moved to compel an accounting and revealed he had never received his trust bequest and was not even told he was a legatee until 2019. Accounting summaries Howard eventually produced showed estate deficits exceeding $800,000 for 2020–2022, with an additional $7.1 million owed to a related company, Sklarco LLC, under a management-fee agreement Miriam had signed during her lifetime. Howard voluntarily resigned as executor in 2023, and the court appointed Argent Trust Company in his place.
After Argent obtained a November 2023 court order compelling Howard to deliver all estate property — including the paintings — for safekeeping, Howard complied. In early 2025, Argent notified Howard it intended to liquidate the Dufy (appraised at $250,000) and the Utrillo ($150,000) to address the estate’s debts, with only $21,000 cash on hand. Howard petitioned for a temporary restraining order and preliminary injunction to block the sale, arguing the paintings were irreplaceable family heirlooms and that ownership had never been formally adjudicated.
The Court’s Holding
The Second Circuit affirmed the trial court’s denial of Howard’s petition for a preliminary injunction. The court held that although Howard satisfied the first element for injunctive relief — irreparable harm, given the unique and irreplaceable character of the paintings — he failed to demonstrate a likelihood of success on the merits. The court found that no judgment of possession had ever distributed the paintings to Howard, and such a judgment is expressly required under La. C.C.P. art. 3396.18(A) before any distribution from an estate may occur. Howard’s self-directed “informal” transfer of the paintings during his own tenure as executor, without court approval, did not vest him with ownership.
The court further held that Argent, as independent executor, possessed broad statutory authority under La. C.C.P. art. 3396.15 to sell succession property without prior court approval. Given the estate’s dire financial condition — hundreds of thousands of dollars in documented deficits, a $7.1 million obligation to Sklarco, and only $21,000 in liquid assets — the trial court did not abuse its discretion in concluding that selling the paintings was the best available means to generate funds. The court also rejected Howard’s argument that Argent was required to first collect and appraise jewelry and other artwork held by Suzanne before pursuing the Dufy and Utrillo.
The court also found that the TRO was properly dissolved by operation of law once the trial court ruled on the preliminary injunction, and noted that Howard’s failure to appeal suspensively left no legal impediment to the paintings’ sale during the pendency of the appeal. Judge Cox concurred as to the Dufy — which had already been sold before oral argument — but dissented as to the Utrillo, arguing Argent had improperly cherry-picked assets and should have been required to collect and appraise all property distributed without a judgment of possession before proceeding with any sale.
Key Takeaways
- Under Louisiana law, a judgment of possession is a prerequisite to any distribution of estate property, even under independent administration — an executor cannot effectively transfer assets to himself or legatees by informal allocation alone.
- An independent executor appointed under La. C.C.P. art. 3396.15 has broad authority to sell succession property without court approval, and courts will not enjoin such sales absent a strong showing on the merits by the challenging party.
- A devolutive (non-suspensive) appeal does not halt estate administration; assets can be sold during the pendency of the appeal, potentially mooting the controversy as to those assets.
- An executor’s twelve-year failure to account, file sworn descriptive lists, or obtain judgments of possession undermines any later claim to have validly distributed estate property during that period.
Why It Matters
This decision reinforces the strict procedural requirements Louisiana imposes on succession administration, even under the streamlined independent-administration regime. Executors — and their counsel — should understand that informal distributions of estate property, however long-standing or practically accepted, carry significant legal risk: without a judgment of possession, title does not effectively transfer, and a successor executor can reclaim those assets and liquidate them to satisfy estate debts.
The partial dissent by Judge Cox flags a fairness concern with practical significance: an independent executor who selectively pursues only certain assets while leaving comparably situated property in the hands of other legatees may face challenge, even if the majority here declined to find a fiduciary breach on these facts. Estates with multiple legatees holding assets distributed without judgments of possession — a common real-world scenario — should take note that successor executors may have both the authority and the obligation to claw back all such property before making distribution decisions.