19 La. 528 | La. | 1841
delivered the opinion of the court.
This is an action brought to obtain possession of the estate of the late Rezin Criswell, the plaintiff’s husband, which was decreed by the Probate Court of Catahoula to belong to her as universal donee of the deceased. The answer admits that defendants were in possession of the property sequestered by the sheriff at the plaintiff’s suit, and avers that they are entitled to it being the nearest collateral relations of the deceased, whose brother’s children they are ; it further alleges that the universal donation under which plaintiff sets up title to this property is contra b'onos mores, prohibited by law and absolutely null and void. There was a judgment below for plaintiff, from which the defendants have taken this appeal.
As all the defendants were not parties to the decree of the Probate Court recognizing plaintiff as universal donee, and as
The statement of facts shows that the plaintiff and Rezin Criswell were married on the 20th of August, 1840, that he died on the 20th of October following; that by his first marriage he had three children who survived their mother ; that Isabella Criswell, one of them, died a short time before R. Criswell’s last marriage with plaintiff; that the other two died after the second marriage but befo're their father; that Rezin Criswell left mo ascendants or descendants ; that the ne-groes found in the succession of Rezin Criswell (except Dan Johnson) named in the plaintiff’s petition were the property of Rezin Criswell’s first wife ; that he inherited the same from his said children of the preceding marriage ; and that all the remaining property found, in his succession was acquired by Rezin Criswell after the death of bis first wife and previous to his second marriage; that the marriage contract under which plaintiff claims as universal donee of R. Criswell, was executed on the day of her marriage with the deceased but before its celebration. Such are the material facts agreed upon by the parties ; the clause in the marriage contract out of which this controversy grows, is in the following terms : “ It is mutually agreed and stipulated by the parties that each gives, makes over and donates to the other, all the property of whatsoever kind and description, he or she may die possessed of, to go to the ■survivor of the marriage, and which may lawfully be given by act of donation, according to the laws of Louisiana ; that is to say, the said Rezin Criswell gives, grants and donates to the said Mrs. Keturah Hollis (in the event of Mrs. Hollis being the survivor) all his property of every kind whatever, that he may die possessed of and which he is or may be entitled by law to dispose of mortis causa, and which portion will be determined by the number of heirs that he may leave at his decease. The
This clause of her marriage contract, under which plaintiff claims has been assailed on various grounds. It is urged that by article 1745 of the Louisiana Code, Rezin. Criswell, having two children of his first marriage alive, could donate to plaintiff only the lost child’s portion and that only as an usufruct and that in no case could the portion of which she might have the usufruct exceed the fifth part of the donoFs estate ; that as at the date of this donation the deceased had no capacity to give nor the plaintiff' any to receive more than that fifth in usu-fruct, the disposition is null and void, as made in contravention of a prohibitive statute. In donations mortis causct, the rule is well settled that in order to determine on the capacity to 1 J give or to receive, or on the validity of a disposition in relation „ to its amount, reference must be had to the tune of the donors death, because it is not until then that the donation-is to take effect; La. Code, arts. 1455, 1459; 5 Touillier, No. 90. ’ • 7.5 j Having left no forced heirs, the universal donation made favor of plaintiff is as valid as if it had been made in favor of a stranger ; La. Code, 1739 ; had he left forced heirs, the donation would have been reducible, not void ; Idem, 1491; 6 La. Rep., 387; 5 Touillier, No. 867. The restrictions imposed on the husband’s liberality towards his second wife being entirely for the benefit of the children of the first marriage, none but them can complain ; if they all die before the donor, the invalidity of the universal donation vanishes. Toullier in his commentary upon article 1098 of the Napoleon Code* which is nearly similar to ours, says, “ The donation made to the second wife or husband will not be subject to reduction, if all the children of' the preceding marriage should die a natural or civil death before the donor; for it is only at his death that the revocation ca-n operate.. The prohibition was made in favor
It is therefore ordered, that the judgment of the District Court be affirmed with costs.