17 La. 144 | La. | 1841
delivered the opinion of the court.
Plaintiff sues to recover a sum of $4000, which she alleges to be the amount of a note subscribed by Joseph H. Gladding, on the 25th of July, 1839. The defendant, who is the curator of the succession of the alleged maker of the. note, pleads, that the instrument sued upon was not the voluntary act of the deceased, but was made when from his extreme and last sickness he was incapable of making any act not even a last will; that no consideration was given for. the said note, and that the plaintiff lived in a state of concubinage with the deceased, and was incapable of recovering by donation, remunerative or otherwise, more than one tenth part of his estate, which she had already and actually received in money and movables.
The evidence shows, among other facts which it would be too long to detail, that the plaintiff and the deceased lived in a state of notorious concu
Notwithstanding the strenuous efforts made by plaintiff’s counsel, to convince us that his client ought to be entitlod to recover, that Gladding had the necessary capacity to bind himself in a valid contract; that the note sued on was given for a valuable consideration, to wit, to remunerate the plaintiff for the value of services which she had rendered to the deceased as his' servant, during the space of twelve years; that as a concubine, she would even be capable of receiving a donation of movables, to the amount of one tenth part [148] of the estate; and that in supposing the note to be a disguised donation under the form of an onerous contract, such donations are valid, but only reducible if they exceed the disposable portion; we feel bound, under the evidence and circumstances of the case, to consider the note sued on, in no other light but as having for its object a disposition mortis causa, and as such, not being clothed with the necessary and requisite formalities of the law, it cannot, in our opinion, have any legal effect.
Under the article 1453 of the Louisiana Oode, property can neither be acquired nor disposed of gratuitously, unless by donations inter vivos or moetis oatjsa, made in the forms hereafter established for one or the other of these acts ; ” and according to article 1455, a donation, mortis causa, is defined to be “ an act to talce effect, when the donor shall no longer exist, by which he disposes of the whole or a part of his property, &e. &c." The article 1563 says that: “ Ufo disposition mortis oatjsa shall henceforth be made otherwise than by last will or testament; all other form is abrogatedNow, it has been clearly proven that the deceased intended to make his will for the undenied and even avowed purpose of bequeathing to the plaintiff certain immo
It is therefore ordered, adjudged and decreed, that the judgment of the court of probates be affirmed, with costs.