In re Le Bourgeois, 80 So. 673

In re Le Bourgeois

80 So. 673 | La. | 1919

PROTO STY, J.

Before his marriage, Mr. Octave Le Bourgeois took out a policy of insurance on his life payable to himself, his 'executors, administrators, or assigns. After his marriage, he caused this policy to be made payable to his wife with no reserve to himself of right to make any change; and he took out two other policies payable to her, with no reserve of right on his part to change the beneficiary. All this he did purely as gratuities to his wife. She thereafter became insane, and has been so for 15 years, and is now an inmate of the state insane asylum at Jackson, supposedly incurable. Recently, desiring to have the five children of the marriage'substituted for his wife as beneficiaries, he caused her to be interdicted, and himself to be appointed her curator, and provoked thé holding of a family meeting for advising whether this change should be made. The family meeting so recommended and the present proceeding is a rule taken by him on the undercurator and'the insurance compa*503nies to show cause why the proceedings of this family meeting should not be homologated, and judgment rendered ordering the said change to be made. The court made the rule absolute, and the present appeal is 'by the insurance companies.

[1] These policies are thus ordered transferred from the wife to her children without any consideration moving to her, purely as a gratuity, or donation. Very evidently she herself could not make the donation, since one must be of sound mind to make a donation (C. O. 1475); and it cannot be made for her, since “the person interdicted is, in every respect, like the minor, * * * both as respects his person and estate” (C. O. 415), and no one would dream, we imagine, of the tutor of a minor undertaking to dispose of the minor’s property by donation even though authorized thereto by the court on the advice of a family meeting.

[2] Suggestion is made that the insurance companies are mere stakeholders, without appealable interest. But the said judgment and any transfers made by virtue of it could be annulled at any time at the suit of the curator of the interdict, or of the interdict herself should she recover her reason, and chese companies if they made payment to the children might be required to pay a second time to the interdict. They therefore have an interest.

It is also suggested that the transfer of the first policy to the wife is null because it was a gratuitous donation, and was not made in the form prescribed by law for donations. Succession of Miller v. Manhattan Ins. Co., 110 La. 652, 34 South. 723. But the present proceeding is not aimed at having the said nullity declared. There is no prayer to that effect. On the contrary, the policy is treated as belonging to the wife, and having to be transferred from her to the children.

[3, 4] It is also said that the .husband may revoke the transfer, since it was a donation frbm husband to wife. Perhaps so; but the husband has not yet made, and is not now making, the revocation, but is asking that a transfer be ordered made from his wife to the children, thereby impliedly affirming the ownership of the wife. And besides, as 'to the two policies taken out in favor of the wife after the marriage, they were not revocable donations. Succession of Desforges, 135 La. 49, 64 South. 978, 52 L. R. A. (N. S.) 689.

[5] It is said further that this transfer to the children is an onerous donation, because the' mother may some day “be dependent on the children for things and attentions which no officer or servant at the asylum will think to do for her.” Counsel have here gone far afield for discovering a consideration for this transfer. If ever these children happen to come to the aid of their mother in that way, their doing so will be nothing more than the discharge of a natural obligation, and the discharge of a natural obligation cannot serve as a consideration.

The judgment appealed from is annulled, and the rule is dismissed; the plaintiff in rule to pay all costs.