| La. | Sep 15, 1832
delivered the opinion of the court.
In the year 1782, two people of color, Etienne Sam and Jeannette, entered into a contract of marriage before the commandant of Attakapas and Opelousas; and by the same act agreed, that in case there were no issue of the marriage, the survivor should take all the property, whether proper or acquired, that existed at the termination of the coverture.
There were no children from the connexion; but the husband had a natural son, who was a slave of one Soileau. In May, 1797, Soileau promised to sell this slave to the husband, on the condition that he was to give him his freedom; whether any regular sale took place in pursuance of/this promise, the record does not inform us; but in the' month of
This act appears to have been executed before the commandant of Opelousas on the first day of June, 1799. The parlies declare, that not having children by their marriage, they are desirous of nominating an universal heir to their estate; that for this purpose, they adopt the father’s natural son, Pierre, with all the rights which that quality can confer on him; and that they institute him their only and universal heir after their death, of all their present and future property; only requiring in return, that he will assist them and not abandon them for the remainder of their lives. Two other clauses are contained in this instrument; one, by which the wife is stated to have declared on oath, that she executed the act without restraint, and of her own free will and accord; the other, by which it was agreed that it should not be annulled, except by the mutual consent of both husband and wife.
The husband died first, without any act of revocation; the wife, before her decease, executed her last will and testament, by which other dispositions were made of the property, although, by this will, a considerable portion of her estate was bequeathed to the plaintiff. A contest arose between the heirs of the wife and the plaintiff, in relation to the validity of this instrument; the latter endeavored to maintain it, but by a judgement of this court, it was pronounced null, for want of the formalities which the law required.
The plaintiff has, since the decision of that suit, instituted this action, by which he claims the whole of the estate, of which his adopsed mother died possessed. The answer asserts the defendants to be the legal heirs of the deceased, who died intestate; that the act of adoption was not made
By the laws of Spain, adoption could take place but in two modes; one by authority of the king, and the other by authority of justice, on petition presented to the judge, proof administered of the facts on which the law permitted the act, and a judicial decree rendered on the evidence given. In the present case none of these formalities appear to have been pursued. The instrument was passed before the commandant in the form of a notarial act. The maxim omne rite acta has been pressed into the cause of the plaintiff, but the maxim has its limits, and we cannot presume both a decree and the formalities which should have preceded it. Febrero, p. 1, cap. 15, § 1, nos. 1, 6, 33—5.
We are, therefore, of opinion, that the instrument produced in this cause, did not constitute the plaintiff the adopted son of the parties whose intention was to make him such. The next question is, whether the donation contained in it falls, as a consequence of the act of adoption being invalid.
As the donors had no forced heirs at the time the donation was made, and died without any, the donee had the capacity to receive, independent of the adoption. We, therefore, think that part of the instrument by which they gave him their property after their death, was valid and should take effect. It is only in acts which cannot subsist but by the validity of all its parts, that the nullity of one portion draws with it the nullity of the whole. Acceptance we do not think was required by the Spanish law, to give the donation mortis causa effect. In donations inter vivos, it was only required to deprive the donor of the power of revocation where delivery did not follow the gift. See the case of Pierce vs. Gray etal. 5 Mar. 367, and note of Gregoria Lopez to the 4th law of the 4th title of the 5 Partida. And Siguenza, lib. 1, cap. 25, no. 4.
By the Spanish law as by that of all other countries with which we are acquainted, donations mortis causa were subject to any change which the will of the donor might direct up to the time of his decease. The law of that country, however, presented an exception to the general rule in case the instrument contained a clause in a particular form. That form it is unnecessary to set out. It is sufficient to state that it required the donor to declare that for no cause whatever should the donation be annulled, and that it was to have the same force and effect as a donation inter vivos. The oath of the party was also necessary to make it binding on him. We are of opinión that the clause found in the act produced in this case, by which the donors made their power of revocation depend on the will of each other, did not take the case out of the general rule, and was not a compliance with the law which required a renunciation of a totally different kind. In coming to this conclusion, we have not taken into consideration the absence of the oath which the Spanish law required to make the contract binding. See Siguenza, lib. I, cap. 25, no. 1—3. Febrero, p. I, cap. 5, § 2, no. 42.
The next and last inquiry is, was the donation in fact revoked? As to the father, the case is quite clear; he diéd without making any change in it. His wife, the other donor, before her decease made her last will and testament by which she made dispositions of her property different with and contrary to those contained in the act of donation. This instrument was set aside at the suit of the heirs of the wife, as wanting in some of the formalities required by law to give effect to dispositions of property by an act mortis causa. But it is contended that though not good as a last will and testament, it is valid as a revocation. To this it is answered that had the instrument contained an express revocation, the doctrine contended for might be true, but that it is incorrect, when the change of will is implied from a testamentary
It was attempted to show that the donation was made on certain conditions, and that the donee had performed them. ’ 1 The evidence in our opinion leaves this fact quite doubtful, and the plaintiff having the affirmative and failing to establish it, can derive no benefit from this clause in the act.
The donation made by the husband and wife to the plaintiff, having revoked the clause in the marriage contract by which the survivor was to have the whole of the property at the death of one of them, it follows, from the opinion just expressed, that the donee of the husband by whom the donation was not revoked, must receive one half of the estate, and the heirs of the wife the other half.
It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be annulled, avoided, and reversed; and it is further ordered, adjudged, and decreed, that the plaintiff is entitled to one half of the estate real and personal, of which Magdelaine Masse died possessed, and the defendants in this cause to the other half; and it is further ordered, adjudged, and decreed, that this cause be remanded to the District Court, in order that a partition be made of