Flores v. Lemee, 16 La. 271

Flores v. Lemee

16 La. 271 | La. | 1840

Simon, J.,

delivered the opinion of the court.

This suit is brought by a widow, who sues the administrator of the estate of her husband, for the recovery of two thousand five hundred dollars, which, she alleges, is the *273amount of a donation propter nuptias made her by her husband in the contract of marriage; and which sum is by said contract to be taken, at the dissolution of the community, out of the best and most available property of the succession. She prays for the payment of the said sum, and claims the benefit of a privilege and lien on the property of the succession, or if she cannot obtain this, that she be paid as an ordinary creditor. The lower court disallowed her pretensions, and she appealed.

a marriage before*a JusUee of.t.he Pl'fce>is gifts or dona-are"8 ™uU6* and donat!on propier nuptias the wife’sPdowry’ and she *Ias its restitution, „ Every donation inter vivos band^nd wifei , marriage matrimonial afubj^t^to the seneral taws ordinary donaciaíTy h¡dar3c& idana Code, undet. [he of nullity.

The marriage took place in 1836, and the contract was passed before a justice of the peace ; it is, therefore, not valid as a marriage contract. Louisiana Code, article 2308. Had the contract of marriage been a valid one, it is clear that a donation propter nuptias, by the husband to the wife, makes no part of the wife’s dowry. Idem., article 2318 ; and as the wife’s mortgage on her husband’s property, exists only for the restitution of her dolal and paraphernal effects, plaintiff would not be entitled to claim the right of privilege and lien on the property of the succession, as she prayed for in her petition. But the act of donation, in this case, was made before a justice of the peace, and is, consequently, not belter than of it had been made by an act under private signature, and the gift is void, if not made before a notary public and two witnesses. Idem., articles 1523, 1525. 8 Martin, N. S., 126. It was not a manual gift accompanied by the payment of the money, since the amount thereof was to be paid after the dissolution of the community; and it is a well established rule that every donation inter vivos, though made by marriage contract to the husband or wife, or made between married persons by matrimonial agreement, is subject to the general rules prescribed for ordinary donations. Idem., articles 1727, 1737. Our laws are imperative on this subject, and a donation cannot validly be made in any other form but that pointed out by articles 1523 et seq., under the penalty of nullity, We are of opinion the judge a quo did not err in rejecting j & v jo plaintiff s claim.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.