101 So. 21 | La. | 1924
By the WHOLE COURT.
This controversy arises over the account herein filed by the executor, who is the surviving husband of the deceased. He claims that certain real estate belongs to the community which existed between him and his deceased wife. Her heirs (legatees) claim that same is her separate estate.
The facts are that the property was purchased by the husband during the community, and donated by him to his wife during the marriage; that after her death he revoked said donation.
Article 1749 of the Revised Civil Code of 1870 reads as follows.:
Article 1749. “All donations made between married persons during marriage, though termed inter vivos, .shall always be revocable. * * * »
II.
This is a literal translation of article 1096 of the Code Napoleon (now French Civil Code), and all the French commentators agree that there is no difficulty whatever in determining that this right to revoke a donation made during marriage (though personal to the donor) exists as well after the dissolution of the marriage as during the continuance thereof, and however the marriage may have been dissolved (whether by death-or by divorce). See Laurent, vol. 15, p. 65, No. 330; Baudry-Lecantinerie, vol. 2, Nos. 4017, 4018; Fuzier-Herman, art. C. N. 1096, Nos. 29, 57; Dalloz, art. C. N. 1096, Nos.-,-.
The Court of Appeal of Toulouse has held that this right to revoke (even after death of donee) applies also to disguised donations, i: e., donations in fact, but cloaked under the form of some other contract. ’Toulouse, May 20, 1886, D. P. 87-2 — 40 (Journal du Palais, Anno. 18S7, pt. 2, p. 40).
We are of opinion that such is a correct interpretation of the law.
Decree.
The judgment appealed from is therefore affirmed.
