4 La. 502 | La. | 1832
delivered the opinion of the court.
This suit is brought by a donor, in which he prays that a donation by him made to the defendants may be avoided and annulled. Judgement was rendered in the court below in conformity with the prayer of the petitioner, from which the defendants appealed.
The plaintiff claims the nullity of the donation on two grounds. 1. On account of its being so excessive as to leave
The article 1507 of the Louisiana Code declares that “substitution and fidei commissa are and remain prohibited”; and that “every disposition by which a donor, an heir or legatee, is charged to preserve for or to return a thing to a third person, is null, even with regard to the donor, the constituted heir, or the legatee.” As it relates to substitutions, this article of our code is precisely similar to the article 896 of the Code Napoleon, which has been frequently subjected to interpretation in the judicial tribunals of France, and has been extensively commented on by two of the most learned jurists of that country, Toullier and Merlin. The first of these commentators induces a maxim both from the laws of France as they existed before the code, and the article 896 of this legislation, (contrary, perhaps, to the principles of the Roman law,) that substitution and fidei commissa are never to be presumed; they must be expressed, or result clearly from the sense and signification of the words in the instruments which contain them. 5 Toullier, nos. 25, 27.
lp The maxim thus established as resulting from the law on the subject of substitutions, we consider just and reasonable, and such as would fairly be deduced from the article of the Louisiana Code above cited. The same author lays it down as a rule, that all substitutions are fidei commissa conditional. This rule is founded on a principle drawn from the Roman law, where it is stated that a day uncertain is equivalent to a condition: “Dies incertus conditionem in testamento facit.” Law 75. D. de cond. et demonstr.
In the present case a marriage contract was entered into by the defendants previous to the celebration of their marriage. To this contract the .plaintiff became a party, and
According to the terms in which this donation is expressed, independent of the condition resulting from the uncertainty of the time when the substituted donor would take the estate given, depending on the death of his wife, it is made under another condition, which might defeat his claim, viz. the birth of children from the marriage, and their existence at the time of the death of the donor, from whom the property is to descend to Tarbe. The policy of our law in prohibiting J r a substitutions, is founded on reasons of public convenience and , „ . _ utility; to preserve the order of successions uniform, &c.; to prevent the confusion, difficulties, and uncertainties of titles to property held under entails, and to leave it free for the r purposes of commerce.
The act of donation under consideration, has at least an indirect tendency to change the order of succession as established by law, and to place the property given, out of commerce, as being unsusceptible of alienation by the original donee, during her lifetime; for if effect be given to that part of the act which substitutes the husband to the rights of the
According to the above view of the case, it is clear that the donee is bound to preserve during her lifetime, the property given for the person substituted; and the expressions of the article of the Louisiana Code on this subject, would annul thé donation, without a clause in the act requiring it to be returned to a third person; for in pursuance of the words of the law, if a donee be charged to preserve for or return a thing, &c. an instrument in which either of these dispositions is contained, has the effect to annul the donation. That a thing required to be preserved by one person for another, should necessarily be returned or delivered to the latter after the period has expired for which it was directed to be preserved, seems to follow as a necessary consequence from the obligation imposed, to keep or preserve for. The expression in the act of donation, is, that (on the happening of certain events) the property given to the wife shall become that of the husband, in the same manner, and under the same title, by
It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs.