
    142 So.2d 157
    Succession of Mrs. Mintie FORMBY.
    No. 45571.
    Nov. 6, 1961.
    On Rehearing June 4, 1962.
    Dissenting Opinion June 19, 1962.
    
      Jackson & Reynolds, Homer, for appellants.
    Campbell, Campbell & Marvin, Minden, for defendant-respondent.
   McCALEB, Justice.

This litigation involves the validity of a disposition contained in a nuncupative will by public act dated January 21, 1925, executed by Mrs. Mintie Formby, who died on December 2, 1957, at the age of 95, leaving as sole heirs at law her six children (one son and five daughters), the issue of her marriage with John S. Formby, who died on April 24, 1924. The will recites:

“I give and bequeath all my property, both real and personal, and wherever situated to my son, John Dixie Formby, this being an onerous donation, he having provided for me during my lifetime, giving and granting him seizin, and making him executor, without bond.”

When the testatrix’s son, John Dixie Formby, offered the will for registry and probate in the succession proceedings, four ■of his sisters appeared and challenged the validity of the bequest contending (1) that it constituted an onerous donation but imposed no charges upon the donee-; (2) that, if charges were imposed, they were not fulfilled by the donee and (3) that, in any event, the value of the property donated did not manifestly exceed the value of the charges imposed upon the donee, as prescribed by Article 1524 of our Civil Code. In the alternative, the opponents prayed for a reduction of the bequest, since it exceeded the testatrix’s disposable portion.

After a trial in the district court on these issues, the disposition of Mrs. Formby to her son was upheld as a remunerative donation and her daughters’ opposition was accordingly dismissed. An appeal was taken to the Court of Appeal, Second Circuit, where the ruling of the trial court was affirmed. See Succession of Formby, 127 So. 2d 352, 353. We granted certiorari.

Mrs. Formby’s estate consists solely of an undivided interest in 80 acres of land and a mineral interest in twenty acres, on which there are two producing oil wells. While the evidence is conflicting as to the total value of these interests, we think a conservative estimate of their worth is about $10,000.

It also clearly appears from the record that Mrs. Formby’s relations with the four daughters, who are contesting her will, were strained and incompatible during all the 30-odd years of her widowhood. Although they lived within close proximity of their mother, these daughters had virtually no contact with her during this period; indeed, it is shown that they deliberately avoided her though the reason for the airmus which existed does not appear. On the other hand, Mrs. Formby had long entertained a deep-seated affection and admiration for her only son, who gave mutual response to her warmth with acts of kindness and attention. During the last 15 years of her life, Mrs. Formby shared the home she had purchased in Shongaloo, Louisiana with her other daughter, Mrs. Jewel Formby Crabtree, who had come to live with her during her old age. Shortly before her death, Mrs. Formby sold this property to Mrs. Crabtree for $1,000, or for one-half the price for which she acquired it. Mrs. Formby’s son lived nearby and made frequent visits to his mother. In addition, he ran errands for her, took her on shopping trips in his car, deposited her monthly oil royalty checks in the bank when he collected and deposited his own and made occasional gifts of homegrown vegetables, clothes and medicines. This type of contact and attention given by the son to his mother began upon the death of his father and continued throughout her lifetime.

An examination of the will, the pertinent recitals of which we have quoted above, convinces us that the district judge and the Court of Appeal were correct in holding that the designation “this being an onerous donation” was an error chargeable to the attorney and notary to whom the will was dictated, as the other language used by Mrs. Formby makes it manifest that she did not intend to impose any charges on her donation of all of her property to her son. Indeed, when consideration is given to the fact of Mrs. Formby’s strained relation with her four daughters and her close affection for her son, the conclusion is inescapable that she wished to give him everything and exclude all her daughters from their legitimate portions. This she sought to accomplish by a remunerative donation, as found by the district court and Court of Appeal, for the will states that the testatrix’s reason for disposition of her entire estate to her son was because he had provided for her during her lifetime, the actual phraseology being “ * * * he having provided for me during my lifetime”.

In the district court, counsel for the opponents of the will, when confronted with Dixie Formby’s claim that the disposition was a remunerative donation, objected to the admissibility of any testimony tending to establish the value of services allegedly rendered by Formby to his mother after the date of the will. It was and is counsel’s position that, since a remunerative donation is a giving in payment for services rendered, no evidence of services furnished subsequent to the confection of the will should be considered in determining whether their value is substantially equal to the gift. This objection, similar to the one sustained by the district judge in Successions of Gilbert, 222 La. 840, 64 So.2d 192, was overruled and evidence heard and considered of alleged services extending from the death of Mrs. Formby’s husband in 1924 until the testatrix’s death in 1957, or for a period of over 33 years.

In the Court of Appeal, counsel for opponents reurged this point but it was rejected on the ground that the disposition was to be interpreted as of the date of the death of the testatrix in order to give prospective effect, as well as retrospective effect, to her intention, which was to compensate the donee for all services rendered to her during her lifetime.

This was error. A remunerative donation, as stated in Article 1523 of the Civil Code, is one having for its object the recompense of services rendered. It does not and cannot compensate for services to be rendered in futuro; in essence, it is'a dation en paiement. See Succession of Henry, 158 La. 516, 104 So. 310.

The Articles dealing with remunerative donations (Articles 1523, 1525 and 1526) appear in a section of the Civil Code that is concerned with inter vivos donations only, but it is well settled in the jurisprudence that a remunerative donation can be made by testament, as well. Succession of Henry, supra; Kiper v. Kiper, 214 La. 733, 38 So.2d 507 and Successions of Gilbert, supra. However, when such a donation is made in a will, the intent of the testator is to be ascertained as of the date of the will, just as in the case of a donation inter vivos, and not when delivery is made to the donee.

Article 1525 of the Civil Code states that the remunerative donation is not a real donation when (as claimed in this case) the value of the services to be recompensed are but “ * * * little inferior to that of the gift”. Accordingly, in determining whether a disposition mortis causa is gratuitous, onerous or remunerative, it is essential to examine the intent of the donor at the time the bequest is made.

Article 1712 of the Code, while stating in substance that, in the interpretation of acts of last will, the principal function of the court is to endeavor to ascertain the intention of the testator, adds that this shall be done “ * * * without departing, however, from the proper signification of the terms of the testament”. And Article 1720 declares “A disposition, couched in terms present and past, does not extend to that which comes afterwards.”

In the instant case, the disposition of the testatrix’s entire estate to her son is stated to be in remuneration or payment for “having provided for me during my lifetime”. Therefore, applying the canons of construction set forth in Articles 1712 and 1720 of the Code, the disposition is in remuneration for a past act and must be limited to services rendered by the donee prior and up to the date of the confection of the donation and does not extend to services rendered thereafter.

This exact question was considered in Delaureal v. Roguet’s Succession, 177 La. 815, 149 So. 464. There the plaintiff, a physician, sued on a quantum meruit for services rendered Reverend Roguet during his last illness. The suit was met with a plea of estoppel based upon plaintiff’s acceptance of a legacy bequeathed to him in the will of the deceased in the form of a remunerative donation of $1,000 for his years of medical service and close devoted attention, the will being dated August 15, 1931. The services for which Dr. Delaureal sued, however, were performed after the date on which the will was confected and, for this reason, the court rejected the plea of estoppel, declaring that the disposition was to be interpreted as of the date of the will and not at the death of the testator.

It is to be noted, however, that in one of our more recent decisions, Kiper v. Kiper, 214 La. 733, 38 So.2d 507, the Court, in considering the value of the services rendered by the donee to the decedent under a remunerative donation mortis causa, took into account those services rendered subsequent to the execution of the will, as well as those rendered prior thereto. The services were performed from 1936 until the death of the testator in 1944; the will was written in 1941 and the value of the property donated was $4,000. The services were fixed at $1.31 per day for the entire eight years elapsing between the date of their beginning and the death of the decedent. Evidently the question here presented was not raised as it was not discussed by the - Court in its holding that the services over the entire period were commensurate in value with the donation. It is to be assumed that, had the Delaureal éase been-directed to our attention in the Kiper case, the donation would have been reduced to-the value of the services rendered by the donee up to the date on which the remunerative gift was made, conform-ably with the limitation set forth in Article 1513 of the Civil Code, if the value of the services were in excess of the disposable portion.

In the ca.se at bar, the services rendered by the donee to his mother over a period of nine months, from the date of his father’s death until the date the will was written, could not exceed $250 in value, according to his own estimate. But, even if we would consider the services rendered by him during the 33 years between his father’s death and his mother’s death, we doubt that the remunerative character of the donation could be sustained for another reason, that is, because the type of services rendered are not of such a' nature as to support the bequest.

There was • nothing extraordinary about the services rendered by Dixie Formby to his mother. • They were such as any dutiful son would render to an ageing parent and they were- not performed under circumstances -that could in any sense give rise to the belief that compensation should be forthcoming and/ indeed, the son states that no services were rendered for which compensation was expected. These were not only such services that would be presumed gratuitous because of the relationship of the parties (Succession of Daste, 125 La. 657, 51 So. 677, 29 L.R.A.,N.S., 297; Succession of Templeman, 134 La. 798, 64 So. 718 and Muse v. Muse, 215 La. 238, 40 So.2d 21) but were such services that would be regarded as gratuitous in the absence of any family relationship. Since the services were of a gratuitous nature, the only thing that Mrs. Formby owed her son was gratitude and, if gratitude moved her to make a bequest on his behalf, the source of the bequest would be her own liberality and not a duty to compensate him.

The proposition that ordinary services rendered by a child to a parent are not compensable in the sense that they cannot be the. basis for a remunerative donation, finds support in Succession of Waechter, 131 La. 505, 59 So. 918, 919. There, the legacy from father to son purported to be for services rendered. However, the Court found that “ * * * he rendered such services as his father called on him to render, and as he found time to render, but none for which he expected, or could reasonably have demanded, compensation. We are therefore of the opinion that the legacy of $200 was intended mainly, if not wholly, as a 'gratuity, and hence precludes the legatee from receiving' a commission as executor.”

In the Henry, Kiper and Gilbert cases the services constituted complete care and nursing of a sick and ageing parent. These services are such for which payment would be normally due. They are not such services as are ordinarily rendered gratuitously and, if a person outside the family performs them, he would have an action against the succession on a quantum meruit. Camfrancq v. Pilie, 1 La.Ann. 197; Succession of Dugas, 215 La. 13, 39 So.2d 750. However, where there is a close relationship, such services are presumed to be given gratuitously and there can be no recovery. Succession of Daste, supra. On the other hand, the parent can voluntarily make recompense for the services by disposition mortis causa which will not be subject to reduction by the forced heirs if the value of the services are equal to the donation. Succession of Henry, supra. But Dixie Formby did not keep or provide for his mother in her old age. No doubt he was kind and attentive to her while the four opponents ignored her. This is such behavior as might engender a desire to disinherit the daughters and to give all the property to the son, but it is not such as to create a duty to make recompense for services. The faithfulness of the son might give rise to gratitude and provide the motive for the gift; but, then, such a motive arises from the desire to confer a benefit and not from a duty to repay. Consequently, the gift is a pure, gratuity.

Article 1523 recognizes 'three kinds of donations; gratuitous, onerous, .and remunerative. The gratuitous donation is a pure donation in its motive, which is one of liberality. The latter two are mbfed in motive. They arise only in part from a feeling of liberality while, in its pther aspect, an onerous donation has as its object the imposition upon the donee of some condition, and the remunerative donation has, in part, as its object the discharge of a duty to repay the donee. Whether that duty must have legal effect apart from being' a basis for a remunerative donation need not be decided here. Some authorities believe that the obligation must have independent legal status (1 Domat, The Civil Law (Strahan transí.) No. 921-22; 11 Aubry et Rap, Droit civil francaise Ño. 702 (5th Ed. 1917)), while others believe a moral obligation can be the basis for a remunerative donation (Smith, A Refresher Course in Cause, 12 La.L.Rev. 2, 18, 19). Suffice it to say that, to be remunerative, a donation must be based on some obligation to make recompense, either moral, natural or civil. Serv-1 ices freely rendered, and of such nature that compensation could not reasonábly be expected to give rise only to a moral oblL gation of gratitude and gratitude alone cannot be the basis for a remuneratiori. To hold otherwise would have the effect of permitting disinheritance without the cause or form required .by law. See Arts. 1617-1621 of the Ciyii- Code.; A-par.ent would be able to give all his property to the child he preferred and who had rendered to him more filial service and attention than the other children,' if gratitude for favors rendered is allowed to serve as a basis for a recompense for services. There was no recognizable duty on the part' of Mrs. Formby to pay her son for his attention to heri The son performed these things freely and gratuitously and earned only her gratitude.

We regard the bequest herein to be purely gratuitous in fact and law and therefore it impinges on the legitime of the other forced heirs. Otherwise, it is valid and is subject only to reduction to the quantum allowed by law. Art. 1502 of the Civil Code.

. For the reasons assigned, the judgment of the District Court, which was approved by the Court of Appeal, is affirmed insofar as it upholds the validity of the will of the deceased. In other respects, the judgment is annulled and set aside and it is now ordered that there be judgment herein in favor of opponents on their alternative demand reducing the bequest of the testatrix to John Dixie Formby to the disposable portion which is an undivided one-third interest in the property left by the deceased. All costs are to be paid by the succession.

HAMITER, J., dissents, being of the opinion that the judgment of the Court of Appeal is' correct.

HAWTHORNE and HAMLIN, JJ., dissent with written reasons.

HAWTHORNE, J.

(dissenting).

In this case the will clearly expresses the testatrix’ intent that her son John Dixie Formby was to receive all of her property at her death. I think it is the duty of the court to see that her intent is carried out SO' long as her will does not contravene any prohibitory law.

We are dealing here not with a donation inter vivos, but with a bequest made in a last will and testament. I think it entirely proper to consider that the bequest is remunerative in character, and that the value of the services should be determined up to the date of death rather than only up to the date of the will. If a testator should wish to compensate someone for services rendered up to the time of his death, under the holding of the majority he would have to know when he was going to die and wait to make his will until just shortly before his death— in most cases a manifest impossibility.

In Succession of Henry, 158 La. 516, 104 So. 310, cited by the majority, the will was written in 1914, and the testatrix died in 1921. The court evaluated the.services of the son for a period of eight years, six of which followed the date of the will.

In Delaureal v. Roguet’s Succession, 177 La. 815, 149 So. 464, upon which the majority relies as authority for holding that the value of the son’s services in the instant case should be determined only up to the date of the will, the court was considering services rendered by a physician both before and after the date of the will. In determining whether the legacy to the doctor of a specific sum was intended by the testator to cover future as well as past services, this court studied the language of the will carefully and concluded that “the language is not ambiguous. It relates to, and in our opinion it clearly expresses, the testator’s intention to remunerate the legatee for services rendered during the years preceding the date of the will. * * * we have found that the will clearly expresses an intention to remunerate the beneficiary for past services”. In my opinion the will in the instant case clearly expresses the intention of Mrs. Formby to compensate her son for his services to the time of her death.

As to the value of these services, the legatee is not suing to recover their value in quantum meruit from his mother’s estate; the testatrix herself considered that his services were of value and compensable, and that a bequest of her interest in the property would compensate him for his services. Both the trial judge and the Court of Appeal thought the testatrix was right, and both courts determined the value of these services and concluded that the value of the bequest did not exceed the value of the services rendered.

I do not consider the case of Succession of Waechter, 131 La. 505, 59 So. 918, authority for the majority’s holding that the services here rendered are not compensable. In the Waechter case the legatee, a son of the testator, was a minor living with his father at his father’s expense.

For the above reasons I think the judgment of the district court and the Court of Appeal is correct and should be affirmed.

HAMLIN, Justice

(dissenting).

I have read the record in this case carefully. It has its own exceptional facts and circumstances, and, irrespective of whether the bequest or donation was onerous or remunerative, I am of the opinion that the decedent intended that her son, John Dixie Formby, be paid or remunerated—call it what one will—for the services rendered and medicine and provisions furnished her, which the evidence shows were about equal to the bequest to her son; otherwise, she would have changed her will, executed almost thirty-three years before her death.

Each case must be decided on the facts and circumstances shown to exist. Each case has a peculiar and separate life of its own. Problems of one case are not the problems of another.

It is my view that the opinion of the Court of Appeal correctly sets at rest the issues involved herein.

"Therefore, I respectfully dissent from the ruling of this Court reducing the bequest of the testatrix to John Dixie Formby to the disposable portion—an undivided one-third interest in the property left by the deceased.

On Rehearing

HAMITER, Justice.

After further consideration of the instant cause the majority of the members of this court have concluded (with respect to the two primary questions presented) that: (1) in the will involved Mrs. Formby, the testatrix, intended that the donation made by her was to compensate her son, John Dixie Formby, for all services rendered up to the time of her death, which bequest is not prohibited by law; and (2) the services performed by the named son were sufficient to support the donation as a remunerative one ¿gainst the claims of the other forced heirs.

Regarding the first conclusion, the original opinion correctly recognized that the jurisprudence is well settled that a remunerative donation may be created in a last will and testament; and, further, that under Revised Civil Code Article 1513 such a'donation can never be reduced, even when forced heirs are concerned, below the value of the services rendered: See Succession of Henry. 158 La. 516, 104 So. 310 and Kiper et al. v. Kiper et al., 214 La. 733, 38 So.2d 507. But, according to the present view of the majority, it was error to hold initially that a donation of that kind is invalid insofar as it purports to compensate for services which the testator anticipates are to be performed subsequent to the drafting' of the testament.

A donation mortis causa cannot and does not take effect, as a disposition of property, until the death of the testator (Revised Civil Code Article 1469). Consequently, when the remunerative donation in a testament becomes so effective, and title to the bequeathed property is passable, it then constitutes a payment (a dation en paiement) in keeping with an expressed desire of the testator to compensate for all services rendered prior to death. Moreover, we find no prohibition concerning such a bequest in any of the provisions of our Revised Civil Code. Nor has any case been called to our attention which expresses disapproval of it. Rather, in Succession of Henry and in Kip-er et al. v. Kiper et al. (both cited supra) bequests of that kind were held to be valid.

In the Henry case the testatrix died January 24, 1921, she having lived (as planned) with her son, James M. Beckham, for some nine years prior thereto. Six of those years occurred after Mrs. Henry made her last will and testament on April 24, 1914, in which instrument she bequeathed her property to that son to compensate him for his love, attention .and affection and for "the cost and expense that my support has been to him”. The contest (originated by other forced heirs) was over the validity of the bequest, and therein this court first found that the testatrix intended the donation as a remunerative one. Then we were required to establish the value of the services rendered by the son, because (as pointed out in the opinion) the donation would be subject to a reduction to that value in the interest of the legitime of the forced heirs. In computing the services’ worth we included all nine years during which the testatrix received them (six of such years came after the will was written), and this was done despite the following specific argument contained in the brief to this court filed by counsel for the contesting heirs: “C. C., Art. 1523, says a remunerative donation is one the object of which is to recompense for services rendered. It does not say for services to be rendered, but not yet rendered. This being true, testator in the instant case could not recompense for services not rendered at the time she made the will. * * * ”

In the Kiper case the court found that the testatrix intended to compensate her daughter, Mamie Kiper, for services rendered; and, as against other forced heirs, it computed the value of such services for a period-of eight years and three months, some three years and two months of which elapsed after the date of the will. Again, it is to be noted that in the brief to this court counsel, for the opposing heirs argued that all of the services. rendered could not be included, since some were performed subsequent to. the testament’s confection.

As to the intention of the testatrix herein, the language employed by her convinces us that she wished to compensate her son, John Dixie Formby, for anticipated as well as past services. In this respect we fully agree with the following observation of the Court of Appeal (127 So.2d 352, 355): “Therefore, construing the provisions of the aforesaid will and, in giving consideration to the obvious intent and purpose of the testator, the conclusion can only, be reached that the testator intended, by the expression

“ ‘ * * * he having provided for me during my lifetime, * * *.’

to give the will a restrospective effect from and as of the future prospective date of her' demise and, as of that date, to compensate1 her son for services rendered her during her lifetime. It would thus appear that the donation was remunerative in character rather than an onerous donation and that the intent of the testator was to compensate the donee for services rendered to the date of the donor’s death.”

The language of the testament considered in Delaureal v. Roguet’s Succession, 177 La. 815, 149 So. 464 was not similar to that presented in this contest and, consequently,, such case is inapposite. As ' said by the court therein: “Counsel for appellant con-; tends that the quoted provisions of the will should be interpreted to mean that the testator intended the bequest to be remuneration not only for the services rendered by the legatee prior to the confection of the will, but also for the services he rendered the testator thereafter. The quoted provision of the will is not susceptible of such an interpretation. It is written in the present tense. The language is not ambiguous. It relates to, and in our opinion it clearly expresses, the testator’s intention to remunerate the legatee for services rendered during the years preceding the date of the will.” On the other hand the will now before us, as pointed out above, clearly expresses a desire to compensate for services rendered to the tastatrix until her death.

With reference to the above stated second conclusion, Succession of Henry and Kiper et ,al. v. Kiper et al. (both cited supra) amply support the proposition that services rendered gratuitously in the first instance may serve as a valid basis for a remunerative donation. In the Henry case the district judge had concluded that the services were not of the character as would permit such a donation, he (quoting from his written reasons) stating: “The services rendered by proponent to decedent were purely gratuitous on his part, so he testified, and were of such nature and kind as would readily be rendered by any normal son to his aged mother in her declining years”. However, without disputing this finding as to the nature and kind of services rendered, we said: “The rights of the son as legatee of the property do not depend upon any contract of compensation with the decedent, or upon any intention on his part to have charged for his services, while his mother was alive and residing with him.

“The legatee is not suing the succession in this case upon any contract, or upon a quantum meruit, for the recovery of the value of his services to the testatrix; but is claiming title to the property bequeathed to him, and which he has acquired by a dation en paiement from the testatrix,

The same issue was presented in the Kip-er case and, after reviewing the import of our holding in the Henry matter, we concluded: “From a review of the jurisprudence of this State, it appears that the presumption arises that services rendered to a parent by a child are gratuitous if he be the only child, but the jurisprudence seems to be conflicting as to whether this presumption arises if there be more than one child. However that may be, where there is an expressed intention shown to compensate a child for the services rendered the presumption of gratuity does not arise.

“Counsel for the plaintiffs has cited a number of decisions to the effect that the services rendered by a child to a parent are presumed to be gratuitous in the absence of an agreement or promise to pay or an intention on the part of the parent that the services should be paid for. We see no necessity to review these decisions since we have arrived at the conclusion there was an intention on the part of the testatrix to compensate Mamie Kiper for her services and in pursuance of such intention she had actually bequeathed the property to her.”

Among the cited decisions referred to in the last quotation (as is shown by the brief of counsel for plaintiffs in the Kiper case) were Succession of Daste, 125 La. 657, 51 So. 677, 29 L.R.A., N.S., 297 and Succession of Templeman, 134 La. 798, 64 So. 718. But those cases and Muse v. Muse et al., 215 La. 238, 40 So.2d 21 (all were cited in the original majority opinion herein) involved demands against successions for services rendered, the claims being based on contracts or quasi contracts. In none was a bequest made by the decedent, as here, to compensate for services performed.

Succession of Waechter, 131 La. 505, 59 So. 918 (also cited in the original majority opinion herein), is likewise readily distinguishable from the instant cause in that therein the services for which the donation was ostensibly made were performed, as noted by the- court, while the donee was a minor living with his father “and at his expense”. The opinion makes it clear that the court considered that the services rendered were sufficiently compensated for by the father’s maintenance of his son simultaneously with the rendition thereof.

Accordingly, we now hold that the bequest contained in Mrs. Formby’s will is legally enforceable, provided that, of course, there is adequate proof that services of the requisite value were actually performed by her son.

Concerning this proviso the Court of Appeal correctly detailed the nature and extent of the services performed by the son for his mother over a period of some thirty-three years (its findings are fully supported by the evidence adduced), and no useful purpose would be served by our again describing them. Suffice it to say that such court properly observed and held (127 So.2d 352, 357): “The trial court concluded that the value of the services rendered justified the bequest without reduction. Obviously,the trial judge found that the value of the services rendered equaled or exceeded the value of the property bequeathed. The legatee fixed a value of the services rendered at $250 per year. This is nowhere contradicted. From our review of the services rendered the mother, as heretofore pointed out, it would appear they are well worth that amount.”

For the reasons assigned the judgments of the district court and the Court of Appeal are affirmed. Opponents of the will involved herein shall pay all costs.

McCALEB, J., dissents adhering to the views expressed in our original opinion.

SUMMERS, J., dissents.

FOURNET, C. J., dissents being of the opinion that the decedent’s son rendered no services to his mother for which he could demand or receive compensation. It is inconceivable to me that an occasional purchasing of groceries and medicines and a cashing of checks, from which the son received his share, are such services which ■should form the basis for a dation en paie•ment or for which he could claim compensation.

SUMMERS, Justice

(dissenting).

“There are certain provisions of the Civil Code of Louisiana that are something more than mere laws; they may be said to rise to the dignity of institutions. Among these are the articles of the Code providing for what is known as the doctrine of forced heirship.”

'In the constitutional convention of 1921, more than a century after the first codification of the civil law, the appreciation of. this characteristic of our law and the importance of this institution was recognized and its continuance assured in the life of the people.

These principles are a limitation upon courts in giving full effect to the intention of a testator when recognition of that intent will result in an infringement upon the legitimate portion of forced heirs.

Basically the will in question violates these principles; it seeks at the outset to bequeath all of the testator’s property to one of six children. LSA-Civil Code art. 1493. It is only where an exception has been created by law and clearly established by the facts that violation of the principles of forced heirship will be sanctioned. .

Such an exception is sometimes found in the remunerative donation, either inter vivos or mortis causa. Under declarations of this court the remunerative donation cannot be reduced below the estimated value of the services rendered, if the value of such services should be little inferior to that of the gift, even if such remunerative donations should trench upon the legitime of forced heirs. LSA-Civil Code arts. 1513, 1525; Succession of Henry, 158 La. 516, 104 So. 310.

I understand the jurisprudence to be to-the effect that in a remunerative donation mortis causa, which exceeds the disposable portion, the beneficiary legatee thereof bears the burden of establishing its validity, and particularly the value of the services sought to be compensated, with that degree of legal certainty which is strong and convincing. This proof should leave no doubt that its provisions are intended to surmount the basic prohibition against infringement on the legitime of forced heirs. Succession of Fox, 2 Rob. 292; Succession of Henry, supra.

The fundamental difference in the original opinion and the opinion on rehearing is the holding that there was error in the majority opinion originally when it was declared that the purported remunerative donation made by the decedent in her last will and testament “does not and cannot compensate for services to be rendered in futuro.” The recognition by this court that remunerative donations are to be so limited, it is argued, deprives the beneficiary legatee, under the questioned will, of that proof in the record which he contends tends to establish the remunerative character of the donation mortis causa upon which he relies to impinge upon the forced portion. It is pointed out that such a rule limits the use of the remunerative donation mortis causa, for, under this mandate, a testator cannot compensate for services rendered in his later years, inasmuch as the use of such a disposition would have to await a time when death was imminent before it could cover services performed in the last period of life, it being observed that the selection of the appropriate time for the confection, of the will in such cases is in most instances “a manifest impossibility.”

The answer to this latter contention is that the remunerative donation is not designed to cover all circumstances which may arise—only those where “recompense” is envisaged, and under the rule announced by the majority originally the recompense can only be for -services already performed. It would be a contradiction to hold that a remunerative donation is a compensation for services not yet rendered.

The law is not barren of other means which would avail a testator wishing to recompense a person for services to be rendered in the future. The onerous donation is available to accomplish such a result and, at the same time, adequately protect the disposition against the claims of forced heirs, provided the charges imposed be fulfilled and the value of the object given does not manifestly exceed that of the charges imposed. LSA-Civil Code art. 1524. Additionally, there is no prohibition in the law which would prevent a disposition from being both remunerative and onerous in character, and thereby permit a testator to recompense for both services already performed and those to be performed. Hearsey v. Craig, 126 La. 824, 53 So. 17.

Further complaint is made of our failure in the original majority opinion to attribute adequate value to the services rendered by the beneficiary of the will. As heretofore stated, I am of the opinion that it is improper to consider evidence of services performed after the confection of the questioned will in order to support the remunerative character of a disposition contained therein. I have carefully reviewed all of the evidence of services rendered, but find no reason to depart from our originally announced conclusions.

I respectfully dissent. 
      
      . This is shown by the evidence of Dixie Formby, who estimated the value of the services he rendered his mother during the 33 years of her widowhood at $250 annually. His statement as to the nature of his services is corroborated by several neighbors and his sister, Mrs. Crabtree. The latter, testifying on his behalf, gives an approximation of the services performed by her brother as follows:
      “Q. Now, other than coming to town once a year and paying the taxes, going to the bank once a month or whatever was necessary to put her check in tire bank, or whatever money she might have, do her banking, and going down to the store and bringing some groceries home, what else did Mr. Dixie Formby do for his mother? A. He did come to see her.
      “Q. Came to see her? A. Yes, he did.
      “Q. Visited her? A. He visited her, is correct, and him going—
      “Q. I mean, as far as any services are concerned? A. And him a-going to town and bringing groceries was a load off me and I thanked him for it.
      “Q. Yes, I’m sure it helped you. A. That’s right.
      “Q. But as for being—helping out in that respect—A. That’s right.
      
        “Q. How far did you live from the store? A. Oh, I didn’t live but a little piece, a quarter, half a quarter, or something like that.
      “Q. How many times, during the past Fifteen years, per week, would Mr. Form-by bring your groceries out? A. Ob, I don’t know, not much.
      “Q. Just—I mean, about average; I know you wouldn’t know exactly? A. No.
      “Q. Once or twice a week, would it be that much? A. No, it wasn’t that often.
      “Q. Just once or twice a month? A. Yes, something like that.
      “Q. Probably average once or twice a month? A. Something like that.
      “Q. The rest of the time you got the groceries yourself .or caught a ride or somebody helped you? A. Or they delivered them.
      “Q. Or they delivered them? A. Thats right, thats correct.
      >}: ^ ‡
      
      “Q. Go to the bank once a month or something of that effect? A. Once in awhile; and probably she’d have him to go see about something else; but there wasn’t much business to tend to.
      “Q. That is what I am getting at. Actually, there wasn’t anything other than come to town once a year and pay the taxes— A. Yeah.
      “Q. —and go to the bank once a month—A. Thats right.
      “Q. And put that check in. The farm wasn’t rented, and actually—■ A. And he come in—
      “Q. Thats what the business consisted of, isn’t it? A. Yes, there wasn’t too much business to tend to, unless ho had to see after that gravel, and see after the timber—
      “Q. He got his proportionate part of what the leases brought and what the gravel brought and what the timber brought, didn’t he? A. Yeah. Yeah. Sure did * * *
     
      
      . Fenner, An Example of Homeric Nodding in Relation to the Reduction of Donations Inter Vivos, 1 So.L.Q. 129.
     
      
      . La.Const. art. IV, § 6, L.S.A.; Painow, The Early Sources of Forced Heirship; Its History in Texas and Louisiana, 4 La. L.Rev. 42.
     
      
      . LSA-Civil Code art. 1712.
     