5 Mart. (N.S.) 228 | La. | 1826
delivered the opinion of the court. This is an appeal from a judgment of the court below, by which the property of the community of the widow and her late husband, is divided, and a partition ordered, of the succession of the latter, among his heirs. The appeal is taken and prosecuted by one of the heirs only, whose husband acted as testamentary executor of the deceased.
The case offers two questions for solution. The first relates to the commission or percentage allowed by law to executors. The second arises out of the manner in which the judge a quo directed the collection of certain advances which had been made to some of the heirs and descendants, by their father, before his death.
As to the first of these questions, we are clearly of opinion that the decision of the court below was correct. The will did not give
The circumstance of the community of property which existed between the widow and heirs of the deceased at the time of his death, renders the second question somewhat difficult to solve.
In the present case, advances were made by donations from the father to some of his children, out of the property of the community, or common stock of acquests and gains belonging to him and their mother, who is still living. In bringing back these donations, a question arises, as to the manner in which they ought to be collated.
The law requires property given in advances to heirs, to be collated to the succession of the donor; and as the husband is master of the community of acquests subsisting between him and his wife during his lifetime, and may sell, or in any other manner dispose of the effects belonging to such community, it
It is therefore ordered, adjudged and decreed, that the judgment of the court below be avoided, reversed, and annulled: And it is further ordered and decreed that the cause be remanded to the court of probates, with directions to the judge of said court to proceed to a partition of the estate belonging to the widow and heirs of the deceased, agreeably to the principles laid down in the above opinion. And it is further ordered, adjudged and decreed, that the appellees pay the costs of this appeal.