| La. | Nov 15, 1855
On the 5th September, 1853, Mrs. Felicie Communy, widow of the late Charles Fortin, and natural tutrix of her minor children, named; Emile, George and Amelia Fortin, filed a provisional account of her tutorship and a final account of her administration of the estate of her deceased husband.
The under-tutors of her minor children .opposed the homologation of her accounts on several grounds. The fourth, and indeed the only ground which would seem to offer any difficulty, is as follows, viz:
“Because the said community is credited with the sum of $12,000, as an indemnity due to it for the like amount paid by the deceased to his mother, widow Fortin, up to the time of his death, for nine years of an annuity which was constituted in her favor by the aforesaid Act of the 16th of April, 1841, before F. Grima, Notary Public ; the said annuity being a charge by the said widow Fortin, to the deceased, of which revenues the said community had the benefit and enjoyment.”
It is to be observed that both counsel would seem to have conceded or assumed, that in the purchase by Charles Fortin, from his mother, the prpperty purchased became his separate property. Is it so ? The fact of his having purchased from his mother does not make it different in legal effect from a purchase of property from a stranger. What was the nature of the contract, which existed between the deceased and his mother ? The record shows that Louis Fortin died on the 29th of October, 1828, leaving as his sole heirs. Charles, Edouard, and Frangoise Arsine Fortin, issue of his marriage with Celeste Parent. At the time of his death, he owned a plantation, slaves, etc., in partnership with Armand Duplantier, four-fifths of which belonged to him. His. widow, Celeste Parent, his children, and 'Duplantier, continued to hold this, property in common until the 16th of April, 1841, when a partition was made between them, by which, the widow conveyed all her interest therein to hen said children, in consideration of an annuity; — rente eonstitutée — the stipulations of which, are as follows, to-wit:
“ Et la dite dame veuve Fortin a dit et declaré que désirant se retirer de la dite société, elle a proposé á ses co-associés susnommés de céder et transporter-
En conséquenco la dite dame veuve Fortin déclare par les présentes eéder et transporter á Messieurs Charles Fortin, Edouan'd Fortin et dame Frangoise Arséne Fortin, épouse autorisée du dit sieur Euplantier, acceptant pour eux et leurs héritiers ou a3mnts-cause, les deux cinquiémes indivis de la susdite habitation, ainsi que les esclaves, animaux et utensiles qui en dépendent, et généralement tous les droits, titres, actions et reclamations qu’elle a et peut avoir á exercer contre les biens, mobiliers et immobiliers dépondant de la dite soeiété et de la succession du feu Louis Fortin, son mari, tant en raison de ses droits matrimoniaux qu’on raison de la communauté de biens qui a existé entre elle et son dófunt mari, se dessaisissant de tous ses droits en faveur de Mme Euplantier et de Messieurs Charles et Edouard Fortin, pour par eux en jouir et disposer comme bon leur semblera, en vertu des presentes.
Oette cession est faite á la charge par lesdits Charles Fortin, Edouard Fortin et Dame Euplantier de payer á ladite dame veuve Fortin, la rente viagére qu’ils vont ci-aprés eréer et constituer.
En considération de la cession á eux ci-dossus faite, lesdits sieurs Charles Fortin, Edouard. Fortin et dame Frangoise Arséne Fortin, épouse dudit sieur Euplantier, et par son mari düment autorisée et assistée, déclarent par les pré-sentes eréer et constituer en faveur de ladite dame veuve Fortin, leur mére, ce acceptant, chacun une rente annuelle et viagére de mille trois cent trente-' trois piastres trente-trois cents un tiers, qu’ils s’obligent, chacun, de payer á. ladite dame veuve Fortín, dans tout le mois de Mars de chacune des annees qui suivront la dato des présentes, jusqu’au jour du décés de ladite dame veuve Fortín, á compter duquel jour cotte rente sera éteinte et amortie.”
It is contended by the appellant’s counsel, that the transaction which took place between the widow, Louis Fortin, and her children, cannot be viewed in any other light than as an onerous donation, made to them exclusively, although the act which evidences that transaction does not express it to be a donation eo nomine. In this, we are unable to concur with the learned counsel. In the language of our Oode, Art. 1511, “the onerous donation is not a real donation, if the value of the objects given does not manifestly exceed that of the charges imposed on the donee.” Does the value of the property thus conveyed manifestly exceed that of the charges imposed on Charles, Edouard and Frangoise Arséne Fortin? ¥e think not. Then it is evident that the transaction which took place between the parties was not intended or understood by them to be an onerous donation, but, as it purports to be, a contract of annuity for life — rente annuelle viagére. 0. 0. 2764, et seq.; Mayor v. Duplessis, 5 M. 309. As this property was acquired during the marriage, it belonged to the community, and the community was, consequently, liable for the payment
The appellees, in their answer, have prayed for an amendment of the judgment of the court below in regard to an item of $4,000, which is ordered to be credited to the community, as the price paid for a tract of land of one arpcnt front by forty in depth, which was purchased by Oharles Fortin, in 1841. It is urged that the credit should have been for $2,000, as Oharles Fortin bought the land in partnership with his brother, Fdouard Fortin for $4,000, and therefore, only paid $2,000, for his half. On this point, no argument has been offered on the part of the appellant and the facts appear to warrant the conclusion that the judgment is erroneous in this respect.
It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, and that the case be remanded for further proceedings according to law ; and that in reforming the account, the sum of two thousand, instead of four thousand dollars, be credited to the community; and it is further ordered that the costs of appeal be borne by the estate of Oharles Fortin deceased.