2 La. Ann. 630 | La. | 1847
The judgment of the court was pronounced by
This appeal Was taken from a judgment dismissing in part the opposition of the appellants to the homologation of the tableau filed by the administrator of their grandmother’s succession. The object of the opposition was to cause all the advances made by the grandfather and grandmother of the opponents to some of their children, to be brought into collation in the final partition of this succession. The advances made by the father were made in his own name and right, previous to the year 1814, when he became insolvent and surrendered his property to his creditors. The matrimonial rights of his wife were liquidated by the account of the syndics, and, in 1818, she gave them a receipt for $7,000, “ pour soldé et fined payement des droits de la comparante,-pour scs apports de toute nature, se reconnaissant entierement satisjaite pour toute somme qu’elle pourrcdt et avait droit de réclamer, d raison de tous ses apports." The syndics further relinquished in her favor their commission, amounting, to the sum of $2,816 15. On the 2d of November, 1819, Montigut died, without having come to a better fortune, leaving a large amount of debts unpaid, and no community property. His succession, being exclusively composed of his debts, Was not administered upon ; his widow never accepted the community of acquits and gains; and it is clear that she could not have done so, without becoming responsible for one-lialf of its liabilities.
The judge of the court below, being of opinion that the acts of the wife must
The appellants contendthat there is an error in the judgment; that a donation by one parent to a child; out of the- property of the community, is esteemed a donation of both parties, and must be collated, one half to the father’s and the other half to tlie mother’s succession ; and they rely in support of that position, on the case of Baillio v. Baillio, 5 Mart. N. S. 228, and also on the Civil Code, arts. 2373,1320. Code NhpolSon, 850,1439. Code of 1808, p. 194. 4 Toullier, no. 464. 6 Pothier, Communauté, p. 393, 648.
The appellants have failed to show that-the donations made by the father were of community property, and if' they were that the eventual rights of the wife in it had ever become absolute by her acceptance... This is absolutely required by the authority to which we are referred. 4 Touliier, 464. So far from there having been an acceptance-in this case, the intontion of the wife to renounce, and-her belief that she had renounced^ are rendered manifest by ail her acts. The-circumstance that she did not-renonnoe in strict legal-form, at a time when the-law required the-same formalities for renunciations and acceptances, cannot be-viewed as an acceptance on her part.
If the appellants shsnld succeed, after so long a time, in reviving the community, and in. bringing into it property donated by their grandfather before his failure, it is probable that the elaims of his creditors would also revive; and that it would become our duty to place that property at the disposal of the syndics. What further responsibilities the appellants might thereby incur,-it is unnecessary to determine.
We are satisfled.there is no error in the judgment-appealed from.
Judgment affirmed.-
