4 Mart. (N.S.) 557 | La. | 1826
Lead Opinion
delivered the opinion of the * court. The questions submitted to the court, 1 to be decided in the present case, arise out 1 of proceedings relating to an adiustment and r ~ 75 J partition of the succession of the late Jean 1 Noel Destrehan : some are. of fact and others of law. To understand them, it is necessary to state the situation of the parties to this suit, and that of their ancestor, from whom they claim to inherit The widow G. N. Destrehan claims, as tutrix of her minor children now living, and as heir to those who died since the death of their father and grandfather, a part of the succession of the latter, which appears to have been administered, and was finally adjudged to his wife at the appraised value, as a partner in the community, and who is since dead, leaving as heirs the same persons who succeeded as such to her husband’s estate, with the exception of the present appellant, so far as she claims in her own right. *
The value of the slave, which was estimated at 1000 dollars, and died before the opening of the succession of J. N. Destrehan, was properly deducted as having perished for
In support of the first position assumed by the counsel of the appellants, he relies principally on the doctrine of the Spanish law, as laid down by Febrero, part 2, book 2, chap. 3, nos. 26 to 29. Admitting, that grandchildren who succeeded to the inheritance of their grandfather, conjointly with descendants in the first degree, and who had renounced the inheritance of their father on account of its being worth little or nothing, in consequence of waste and bad management by him, were not bound by the former laws of this country to collate advancements made to their father: we are decidedly of opinion, that this rule of inheritance has been changed by the intro-
From this view of the subject, it appearsdo us, that a doubt cannot be reasonably enter-
The appellants in the present case, must be considered as inheriting from their grandfather by representation, and are therefore bound to bring back to the mass of his succession whatever sums of money or other property may have been advanced to their father during his life time, as donations to further his interest and comfort in life, &c.; of this class of beneficent advances, is the sum of 8000 dollars, proven as above stated ; but, as it relates to the item of 58,564 dollars, the amount of the note executed as before represented, this court has doubted much the propriety of the judgment of the court below, and finally come to the conclusion, that it is not supportable on legal principles. The decision of this question, the most difficult and important in the cause, depends on a just interpretation of the 205th and 206th articles of the Code, found at pages 195 and 196, which are expressed in the words following: 44The advantages which a father bestows on his son, though in any other manner than by
“The same rule applies to all burthensome obligations, and to all mercantile transaction; which the son executes with the father; none of which give place to collation, unless there has been on the part of the father an express or tacit intention of bestowing an advantage on his son; and thus, by that means, some part of the patrimony of one child is taken to increase the patrimony of the other.” Before entering into any discussion on these articles.
The main foundation of the charge against the estate of G. X, Destrehan. in favor of that of his father, amounting to the large sum of ,Sñ8.561, as evidenced by the promissory nóte of the former, seems, from the evidence of the case, to have been payments made by the latter, of the price of a plantation bought by his son. Had the affair been left in its original situation, the amount thus paid would most clearly have been embraced by the provisions of the 205th article of the Code, as cited. But it does appear from an investigation of the whole transaction, that interest was added on interest, item to item, until the original sum was more than doubled ; giving to the matter the appearance of n contract, completely onerous on the part of the obligor; and which certainly bears no intrinsic evidence of an intention on the part oi the father of bestowing an advantage on his son, to increase his patrimony at the expense of that of his other children. It appears, from some evidence on the record, that Mr. Destrehan
It is hardly necessary to state, that a child of full age may contract with his father, and create obligations equally binding as would be created by similar contracts with any other individual of the community. In the present case, G. N. Destrehan promised to pay to his father a large sum of money, made up of ad-1 vanees for his benefit, and interest thereon,at least at the highest rate tolerated by law, if no more, which it is riot necessary to decide in this case. In this promise we can see nothing but a contract of loan on interest in the usual form of such agreements. It is written, and certainly could have been enforced against the son, without his being at liberty to prove any thing contrary to the writing. If his estate were now solvent it could be effectually enforced against his representatives, and the administrators of his father’s estate would be bound to see it fully collected, unless the heirs chose to relinquish it. The circumstance of the alleged insolvency of the estate of the son cannot, in our opinion, alter the nature of the contract, which is
In collating the $8,000, we think, with the judge below, that it ought to be placed with the succession of the grandfather alone.
It is therefore ordered, adjudged, and decreed, that the judgment of the district court be avoided, reversed, and annulled; and it is further ordered, adjudged and decreed, that the cause be sent back to the court of probates, for the purpose of causing a final adjustment and partition of the succession of J. N. Destrehan, according to the principles expressed in this opinion and judgment, the appellees paying the costs of this appeal.
Rehearing
on an application for a re-hearing.
In this case a judgment, has been rendered, which is considered as contrary to law', and evidence; and above all, against that equity,;. which ought to be the principal guide in deciding a case of this nature. ./;?'«'-}„
But in the first place, and before recurring to the evidence which shows what has been the true nature of this transaction, your honorable court has evidently been mistaken in the interpretation of the article of our Code, which says, “ that burthensome obligations and mercantile transactions which the son executes with his father, do not give him lieu to collation, unless there has been, on the part of the father, an express or tacit intention of bestowing an advantage on his son, and there is by that means some part of the patrimony of one , child taken to increase the patrimony of the
- If you will take the trouble of examining what would be the situation of things, if Guy N. Des-trefaan himself was alive, you may easily ascertain that no other interpretation can be given to the article above quoted. On the death oí his father, he would have been at the same time one. of the heirs, and one of the debtor of his, estate. A compensation, would have» established itself between his share of the iny heritance and his debt: whether a debtor or a donee,- the same result would have.,,.taken
The article referred to by the court is therefore not applicable to a case of this nature; and we must beg leave to say, respectfully, that they have misunderstood it.
That the doctrine here contended for is the only sound one, is made still more evident b.v
■ The article 192, page 192, ofour Code, says, “Collation of goods is the supposed or real return which an heir makes to the mass, of some property which he received in advancement or otherwise, in order that such property may be partaken as well as the other effects of the succession.” There is no doubt, then, that Guy N. Destrehan would have been obliged to collate to the mass of his father’s., estate, what he had received in advancement or otherwise. Are those who come to the estate as his representatives, differently situated ? Hear what Pothier says on the subject: « Lorsque des petits enfans viennent a la succession de leur ayeul par representation de leur pére ou mere, ils doivent rapporter tout, ce qui a été donné ou preté á leur .pére ou mere par l’ayeul a la succession duquel ils viennent. La raison en est bien évidente; des repré-sentaos ne peuvent avoir plus de droits dans une succession que la personne quils représmtení, et du chef de laquelle ib °nnent, su i van t ce prin-cipe de droit, “ f-alterius utitur, eodern jure uti debeí,” ils ne aoivent pas plus preudre. dans la succession que cette personne y au-
“ Cette .decision a lieu, quand méme ils n’auraient pas profité de ce qui aété donné a leur pére ou mere qu’ils représentent, et qu’ils. auraient reooncé á la succession; car, comme ce n’est pas de leur chef qu’ils doivent ce rapport, mais du chef de leur pére ou mere qu’ils représentent, il est indifferent qu’ils en ayent profité ou non.
“ Cette décisíou a lieu, quand méme ces rapports absorberaient toute leur portion hé-réditaire, et qo’il ne leur resterait plus rien. lis ne pourraient prétendre en ce cas de legi-time ; car, n’ayant droit á la . succession de leur ayeul, que du chef de leur pére ou mere qu’ils repré-sentent, ils ne peuvent aussi prétendre dans eetle succession d’autre legitime que celle, quéauraient pu prétendre leur pére ou mere ; et par conséquent, ces donations leur doivent étre ¡mputées sur cette legitime cotóme elles auraient été im-putées á leur pére ou mere.”
Observe, that the above is but the expounding of the principle contained in our own Code, page 149, article 18, “ Representation is a fiction of the law, the effect.of
These fundamental principles, to be found in every book which has treated the subject, would, it was presumed, have been the rule of conduct of your honorable court, in the decision of this case. It was thought that you would recognise, that the representatives have no more right than the represented, that qui jure alter ms utitur, codera jure uti debet. But these principles were not so much as hinted at, in the judgment of this honorable court, because they have taken the most extraordinary position, that the loan was not subject to collation by Guy N. Destrehan himself; and thus it turns out, that although Guy N. -Destrehan, if alive, would have had to account to the estate - of his father for this loan, although this loan would have been deducted from his hereditary portion, although he .would have had to compensate bis debt with his inheritance, although confusion would have taken place in him as, at once, debtor and heir; yet his representatives are discharged from his obligations, and admitted as heirs in his stead, without accounting for what he has received; and that, notwithstanding the rule
From such a result it may respectfully be inferred, that this honorable court, has misunderstood the meaning of the article on which they have based their decision; for that decision is at war with the principles on which representation is founded.
But this honorable court have, we think, not only mistaken the law, they have misapprehended the evidence in this important case. What is that evidence? Why, that J. N. Destrehan has advanced to his son a sum of$40,000, (the adverse party avows $37,000.) If you look at the memorandum or account, found among’the son’s papers, arid the production of which we compelled, you find the explication of the note of $58,564, $40,000 ol which (say $37,000 if you please) are the capital advanced; the balance is made up of the interest which J. N. Destrehan used to charge on such occasions, not for himself but for the benefit of his minor children.
N. B, Le Breton tells you: “ That Mr, J. N. Destrehan advanced some money to his son Mr, Guy N. Destrehan, and gave him up the several notes which he held ; (the notes
Mr. Hermann tells you: “ He knows, from Mr. J. N. Destrehan and from Mr. G, JY. Des-trehan his son, that the latter had received from his father a sum of $40,000; that Mr. Destrehan, the father, manifested some reluctance in making the above advance of $40,000 to his son G. N. Destrehan, and observed, that he did so on account of the plantation then purchased by his son." He speaks also of the interest he used to charge for the benefit of his minor children, AH the witnesses state, that Guy N. Destrehan had little or nothing but ivhat he derived from his father.
The facts then, as they result from the ev.i-
Surely if these facts had been well understood the court would not have arrived at a conclusion which /discharges G. N. Destre-han’s representatives from accounting for this money. W as it an onerous obligation for the son to receive $40.000 ? Did he receive them at all r‘ If lie did receive them, must they not be accounted for ? lias the circumstance of Destrehan, the father, charging interest
The court seems to have mistaken the evidence still further: they say that the capital has been more than doubled by the interest: if it were even so, still that is no reason why the capital should not be accounted for*, but it is not so. The adverse party herself admits that the capital advanced was $37,000; our evidence shows $40,000. The note is $58,564; is then $18,564 more than one half of $58,564? rids is adduced to show more and more that the court has. been in an error throughout this case: and when we consider that it was argued nearly two months before it was decided, and that in this interval of time the members of this court have been absent in succession, so as to render it probable that they had no opportunity of examining this case together while it was fresh in their memories, it is not to be wondered at, that the evidence adduced, and even the laws quoted on the trial should have been but imperfectly understood, -
Rehearing
The re-hearing was granted; and after the argument
delivered the opinion of the court. The children of Guy N. Destrehan, deceased, who have accepted their father’s succession, with the benefit of an inventory, claim the portion in their grandfather’s estate to which their father, if alive, would have been entitled. Their uncles and aunts, with whom the partition is to be made, insist, that they must bring back into the succession and collate, various sums of money received by Guy N. Destrehan in his life time; and among others, the sum which is evidenced by his note in favor of his father, for $58,564, payable four years after date. This collation the grand children insist they are not obliged to
After the first argument, we were of opinion that the grand children were not obliged to collate the note on which this contest has arisen. That opinion was principally founded on the article of our former code, which declares that “ burthensome obligations and mercantile transactions, which the son executes with his father are not subject to collation, unless there has been, on the part of the father, an express or tacit intention of bestowing an advantage on his son.” The words of the law certainly authorised this construction; and the reason, on which the whole of the doctrine in regard to collation rests, gave it support. It might well be supposed to have been the intention of the law maker, that the son who received any thing in advance of his future claims as heir should collate; but, that if he entered into contracts with his father, as with a third person, they should be considered as ordinary obligations, to be discharged in the usual way, with all the burthens attached to them; and that he could not be permitted,
But on the second argument, another provision in our law has been discovered, which has an important effect on the construction of the article just commented on. It is that which declares, that on the partition of an «•state each of the co-parceners must collate
To do so is not an easy task. The counsel have contended that the expressions u bur-thensotne obligations and mercantile transactions which the son executes with the father,” mean burthensome obligations which the father executes to the son. Such an interpretation does considerable violence to the language u-ed in the law; for a man who receives a note from another, can hardly be said to execute the rote with the person, who is bound to hiui. But there is a stronger argument against this iiferpret A;< to be drawn from the previous.and immediately preceding
But it is not necessary to give any opinio» on this point, for it is not requisite to a decision of the case before us. Perhaps when it is presented in such a way as it must be settled, it will be found that those obligations which, in pursuance of the words of the law, the son executes with the father; that is, jointly with him, are these which are contemplated by this enactment. The clause immediately follows the provision in relation to partnerships; and it is more than probable that while the subject of contracts, in which the father and son act together, were under the consideration of the legislature, that it was thought necessary to provide for those in which they might have a joint interest, as well as those in which there was a partnership, properly so caused. It is not
We have’ conducted the inquiry so far in relation to the rights of the father of the grand children. If he were presenting himself with his brothers and sisters, it is the opinion of the court that he would be obliged to collate the debt, which the note produced in evidence, shows to have been due by him.
This opinion brings us to the second, and equally important question in the cause; that is, whether the grand children are obliged to collate the debt due by their father, whose succession they have accepted with the be nefit of an inventory.
The affirmative of this position has been supported ; on the general principle that the representative never can have more or greater rights than the represented; that positive texts
The proposition, that the representative never can have more rights than the represented, struck us, on the argument, as entitled to great weight, and as almost conclusive on the case; further reflection, however, has convinced us that it must be admitted with many modifications: taken abstractedly it cannot he controverted; for, independent of positive legislation, a man cannot give to another, rights which he does not possess. But where the representation is created by positive authority, it is subject to all the modifications which the creator may choose to attach to it; thus, in relation to our political representatives, it is well known they have rights conferred on them which their constituents do not possess either individually or collectively : the right not to be questioned for any speech, or debate; the privilege from arrest, &c. So in respect to the representation which is created by law, for dividing estates among individuals; if it should be found, on further examination, that
Bui it is said, the positive provisions of our law on Use subject, now unde?- consideration, support the general principle relied on. The first article quoted, is that in relation to the manner in which children are called to the succession of their grandfather, where their uncles and aunts are alive; and it siates, that the grand children coming in by way of representation, whatever may be the number, shall not receive among them ail, any thing more, than the share, or shares, which would have belonged to their fathers and mothers. This law follows that which declares, that where all the sons and daughters are dead, the children shall take by heads; and is providing for the number of shares into which the estate shall be divided, in case some of the former are alive. It is of importance then, in the present inquiry, only as, establishing that children coming to the partition of a succession under the circumstances which this case presents, ''ome in by representation. Civil Code, 150, art. 29.
“ Representation is a fiction of the law,
This provision, if taken alone, certainly goes the whole length for which the appellees contended. Before noticing, however, the important limitation which the legislator has thought proper to affix to it, in relation to the subject under consideration; it is necessary to a true construction of the article in which that limitation is found, to bring into view some of the other provisions of the code,on the same matter.
“ One can represent a person, to the succession of whom he has renounced. Thus it is not necessary that the children who succeed by representation should be heirs of their father and mother. Although they should have renounced their succession, they are nevertheless fit to represent them in the succession of their grandfather, or other ascendants.” Civil Code, 148, art. 25.
Now, here is ⅜ provision which cannot be reconciled with the effect, which it is contended should be given to the general rule already cited. According to that rule, the representative shall have the same rights as the
The next succeeding article to that just quoted, shows still more clearly, what is meant by representation, and with what limitation it must be understood. “ When a person has been disinherited by his father or mother, or excluded by cause of unworthiness, his children cannot represent him, in the succession of their grandfather or other ascendants, if he is alive at the time of opening the succession; but they can represent him, if deceased before. Civil Code, 148, art. 26.
From this provision it follows, that the representative may have more rights than the represented. The child, if alive could take
Acting on the same principle, that the representation of the father is a mere fiction of the law, the legislator has affixed a most important limit to it, in relation to the obligation of the grand children to collate. The provision in our code is in these words; “ In like manner the grand child, when inheriting in his own name from the grandfather or grandmother, is not obliged to refund the gifts made to his father, even though he should have accepted his succession; but if the grand child comes in only by right of representation, he must collate what has been given to his father, even though he should have renounced his succession. Civil Code, 191, art. 203.
The difference of the obligation between the father, and his son, in regard to the collation in the grandfather’s estate, cannot be more strikingly shown than by quoting again from the code the provision in respect to the father, and placing it in opposition to that, which imposes this burthen on the grand child. When the former partakes, «the mass
These positive provisions of our law, and the reasoning just used on them, furnish, we believe, a complete ansugMto the maxim so much pressed on us in ISjaHRment, qui jure alterius utitur, eodem jure uti debet. To this rule, to which it was said there was no exception, we have seen there are many. The error of giving it so much importance, proceeds, from confounding representation, with transmission. The latter arises from a right vested in one person being transferred to another. In such case, he who receives it can have no other, or
The author last cited, in laying down the
We are unable to see on what grounds this doctrine rests, or how a law which says, that the grandchild shall collate gifts made to the father, can be extended to debts due by him for the loan of money on interest; or any other onerous contract in which the pecuniary interests of the grandfather formed the leading motive of the contract, instead of the advancement of his child; or why the children of the grandfather should be preferred in virtue of such obligations, to any other creditor. If by the expressions used by Merlin, un simple
The reasons adduced for establishing this doctrine is, that the representative cannot have more rights than the represented. We have already expressed ourselves fully on this point; hut, if this be the ground on which the obligation of the grandchild to collate money lent his father on interest be placed, then we are unable to perceive why the obligation should stop there, or on what solid grounds, debts due for property sold to the father, or on any other onerous contract, should be excluded : yet, not a writer whom we have been able to consult, carries the obligation thus far. To this doctrine, therefore, we cannot assent, opposed as it is, to what we believe the language and the spirit of the law, and to show more clearly the soundness of the construction we have adopted, and place the whole merits of this part of the. sub-
The first provision in the code which furnishes the general principle, declares, that the representative shall have the same rights as the represented.
The second provides, in relation to this particular subject, that the represented (the father) shall collate the debts due by him.
The third declares, that the representative (the grandchild)1 shall collate the gifts made (to the father) the represented.
The question then is, whether the,limitation here affixed to the general principle, is to control it. Now, there is no rule better known, and we may add, more frequently acted on in the interpretation of statutes, than this: that general provisions are controled, by special enactments which follow them. They are always understood to be exceptions^: which the law maker establishes to the general principle.
And why should this exception not be
$58,564, New-Orleans, 30 April, 1822,
On the first day of April, 1826,1 promise to pay to the order of Mr. Jean Noel Destrehan, at the domicil of-Mr. David Oliver, the sum of fifty-eight thousand five hundred and sixty-four dollars, value received.
Signed , G-. N. Destrehan
Scarcely any agreement which could be produced in a court of justice, would less evidence an intention of a father bestowing a benefit, or conferring an advantage on his child. The note is made negotiable, and a domicil different from that of the drawer, given to facilitate this object. The heaviest rate of interest which the law will permit is charged; and a certain day fixed for the payment, at the expiration of which it could be enforced. We are at loss to imagine what other features could have belonged !o the contract, if the son had borrowed from a total stranger. The term of credit given, shows almost conclusively, that the son was not to pay out of his claims on the fathers estate. The heavy rate of interest repels the idea, that any advantage was to be conferred.
Nothing in the parol evidence destroys the strong conviction produced by these facts.
The first witness says, lie understood from
That such was the son's hope we believe; but the contract shows that it depended entirely on the father's pleasure, whether that hope should be realised or not. The witness does not state the money was lent on these terms. The note contradicts any such idea. The son did not say the father had given him the money in advance of what he might expect as heir. He only stated that it appeared to be his intention to consider it such.
This evidence does not take the case out of an ordinary loan of interest.
That in relation to the expressions used by the father, is still weaker. There is no ac-knowledgement by him, that the money was given to his son, nor any thing like it, unless one should consider such the statement, of the witness, that Mr. Destrehan the father, manifested some reluctance in making the
The strongest argument, in favor of the father’s intention to consider this as money given to the heir, is the entrusting him so large a sum of money without security. And we do believe that it may have entered into the consideration of the former, that if the money was not repaid the son would be obliged to collate it out of his claims on the. succession. But it is clear that he did not look to that alone, that he reserved to himself the right of enforcing his demand, whenever the credit which he gave should expire.
We therefore conclude -that, the money, which formed the consideration of this note, was not a gift from the father to the son; and that, as the law confines the obligation of the grand children, to bring into collation that which was given to their father the court
In the examination of this case a difficulty occurred to us, in relation to the manner in which the minor heirs have entered into the succession of their father. We have doubted whether an absolute renunciation was not necessary, instead of an acceptance with the benefit of an inventory. It is stated affiraia ti ly by several of the writers, that grand children taking the property in the grandfather’s estate, are not responsible for the debts of the father, when they renounce the succession of the latter. Their rights, when they accept with the benefit of an inventory, f.do not seem to have been noticed. After ,. much reflection we are unable to distinguish the one case from the other. The beneficiary heir is regarded merely as the administrator of the estate. And he is responsible no further than for the amount of the property belonging to the father, which comes into his ^ bands. Now that which the grand child takes in the grandfather’s estate is not the property of the father, for the .latter died before the succession was opened, consequently nothing
This case, as it will be'seen, is one in which there is much difficulty, and we have felt con-sideralffie doubts in regard to the true con-' struction of the articles in our code on which this contest has arisen. That which we have given, we believe to be freer from objections, than any other which can be adopted, and on the whole we do not think that the former judgment of the court requires any alteration.