
    
      HEIRS OF COLE & AL. vs. COLE'S EXECUTORS.
    
    Appeal from the court of probates of the parish and city of New-Orleans.
    doubAXeth-sentsTsutett it wben the de ceasedleaves a father or mother, he or she is forced the eXte — may1 dispose by ^ast6 will ^
    Donations cannot^be' made in the form'of rous contracts.
   Porter, J.

delivered the opinion of the court. Two questions are presented on the in this case. The first arises under the following disposition in the last will and testament of the deceased.

leave and bequeath unto my said brother, ^am es Col e, all the residue of the property and effects of which I may die possessed, after the payment of my just debts, for and during his natural life; and at his decease it is my will that the same descend to all his children, ... , and share alike, without regard to the laws of primogeniture existing in that country (Ireland.)”

“The foregoing disposition of my property may not be conformable to the laws of the J state: nevertheless I make this my last and so- , ... - i /> lemn request, that the residue oí my property after the legacies be disposed of in the above manner, inasmuch as my said mother is very Old and has already been sufficiently provided for, and that my Said brother is a married man, and has a large and helpless family. And in case of the foregoing disposition in favor of my brother being disturbed, then I leave and bequeath Unto my said brother James, for him and his children as aforesaid, such part and portion of my estate as by law 1 may and can.”

The court'below was of opinion that the legacy was good, except so far as it affected the legitime of the toother, who was a forced heir. The judgment of that tribunal gave the one fourth to the mother, and the balance to the appellee.

The case has been very elaborately argued. The abolishing of substitution midfidei com-missa appears not to have destroyed the litigation of which they Were such a fruitful source under the Roman law. It seems as if we were destined to have as many subtle and perplexing questions about what is, or is not, a substitution, as were formerly presented in re-J r lation to the application of the doctrine topar-ticular cases. In the present instance however, the conclusions to which our reflections have brought us, render it unnecessary to decide, whether the clause in the will which has been the subject of so much discussion at the bar, does or does not present a substitution.

It is necessary to check the power of the citizen over his property after his decease; for the strong desire in mankind to perpetuate their authority over what they have acquired, would otherwise induce them to place it for a length of time, and for ever if they could, out of the reach of alienation. But notwithstanding the authority of the law to restrain dispositions of testators contrary to public good, such is the respect paid to the wishes of the owner, that we believe it may be safely stated to be the spirit of the jurisprudence of every civilized country, to carry into effect his will, unless it clearly violates the prohibition which the legislature has established. The source of this doctrine is found in the heart of every man, and it promotes under proper limitation a great purpose of public policy: for one of the strongest motives to industry and economy; one of the highest excitements to the exercise » of those duties which make a valuable citizen, is a conviction that the acquisitions of his frugality and enterprise, will be transmitted as he may direct at his death, to promote the happiness of those who were dear to him in life.

In all cases of doubt then the testament should be maintained. Thus in France, on provisions the same as ours, it is a well established principle of their jurisprudence never to annul a testamentary disposition unless it necessarily presents a substitution, and cannot be sustained in any other manner. Toullier, Liv 3, Tit. 2, Chap. 1, Nos. 44 & 46.

It is clear to us that the object of the testator, from the whole of the testament, was to give the mass of his property to his brother, and to the children of that brother. After leaving it to him for life, he directs that at his death it shall belong to his children: and apprehensive that such a disposition of his property might be forbidden by law, he declares that in the event of it being so “I leave to my said brother James and his children, such part and portion of my estate, as by law 1 may or can.”

The portion of his estate which by law ire , r J might have given to his brother and children, was the remainder left after deducting the le-gitime of the forced heir, the mother; and to that remainder, except so far as parts of it may have been given to others by particular legacies, we think the appellees are entitled.

It might perhaps be made a question, whe. ther the father and children were not to take share and share alike under the will, or whether the father should not take a usufruct for life, with the remainder over to his children. The latter construction would perhaps come nearer satisfying the particular intent of the testator. But this question it is unnecessary we should decide. There is no contest between the father and his children, and it is sufficient for us, and the decision of the case, that by the will they can legally take the portion left to them in any right, to the exclusion of the other collateral relations. La. code, 1509.

Error has been alleged in the amount given by the decree of the court of probates, to the forced heir, the mother. By its judgment she was declared to be entitled to the one fourth.

The doubt in relation to the correctness of that judgment arises from three articles in our J ® code.

The 1481 art. declares: “Donations inter vivos, or mortis causa, cannot exceed two thirds of the property, if the disposers having no children leave a father, mother, or both.”

The 899 article is in the following words: “If any one dies leaving no descendants, but a father and mother, and brothers and sisters, of descendants of these last, the succession is divided into two equal portions; one of which goes to the father and mother, who divide it equally between them, the other to the brothers and sisters, or their descendants, as is prescribed in the following section.”

Art. 900. “If the father or mother of the person who had died without issue, has died before him, the portion which would have been inherited by such deceased parent, according to the terms of the preceding article, will go to the brothers and sisters of the deceased, or to their descendants, in the manner directed by the following sections.”

The first of these articles impliedly gives to the father and mother, as forced heirs, one third of the estate, for it prohibits the child to dispose of more than two thirds, if either of _ ’ the parents survive him.

But the third, by positive enactment, only to the father or mother the one fourth; the construction therefore just alluded to of the 1487 article, is irreconcileable with the direct and positive commands of the legislature in the 899th and 900th.

The 1481st however, contains negative expressions prohibiting the descendant to give more than two thirds by donation inter vivost or mortis causa, when he leaves either father or mother. As the father or mother can only take the one fourth, the question is, what becomes of the difference between the one third which the ancestor cannot take, and the one fourth which he may inherit; are the next in order of succession forced heirs for the difference?

We at first thought so, but we have been estopped from coming to that conclusion, by the 1482 article, which declares the ascendants and descendants to be forced heirs. With these contradictions in the express commands of the legislature, we have been no little perplexed what conclusion to come to. None of the ordinary rules of interpretation afford us the least aid in solving the difficulty. If we c J say the descendant can give more than two thirds when father or mother survives, we violate the 1481 article. If we decide that he cannot, we are equally in opposition with the 1482d; and we make the brothers or sisters forced heirs between the difference which the parent can take, and that which the descendant may will away.

On reference to the report made to the legislature by the jurisconsults, who prepared the amendments to our late code, we find them state, that their object in the change was to increase the disposeable portion. Had the 899th article stood without that which follows it, the interpretation would have been easy. By it, father and mother take one half The construction would have been, that this was their rights in ease there was no will, but that the testator might abridge it by a disposition mor-tis causa.

But the 900th article, by making the portion which the parent can take, less than the part which the testator is prohibited to dispose of deprives us of all aid from that supposed intention in the law maker. We cannot untie the we must cut it. And we believe the intention of the legislature was to give full and entire disposition to the owner, of all property which he died possessed, except that part reserved to the descendants or ascendants; that the collaterals are not forced heirs when there is neither father, or mother, and that they are not so, when e¡ ther sur vi ves.

It is therefore ordered, adjudged and decreed, that the judgment of the court of probates in the appeal taken by the co-heirs of James Cole be affirmed, with costs.

The next question arises on the claim of Sarah Lee, a free woman of colour. The executors resist the payment of a note of the deceased, in her favor, dated the 21st July, 1826, for $3000, and payable on his return from Europe.

The defendants denied the consideration, and the court below being of opinion, that none had passed between the parties, gave judgment against the petitioner; from which judgment she appealed.

On the trial below, the defendants asked several witnesses whether the plaintiff was not the concubine of the deceased. These ques-tiofts were objected to, on the ground that no J defence of that kind had been set up in the pleadings. The court admitted the evidence, and we think correctly. When the produced Witnesses to prove the value of her services in the house of the deceased, it was open to the defendants to shew what the nature of these services were, and in what capacity they were rendered.

On the want of consideration, the evidence has brought our minds to the same conclusion as that to which the judge of probates arrived. We think the notes were not given for value received, but as a disguised donation. A great deal of ingenuity has been displayed in remarking on the evidence, and calculations have been offered, shewing that the plaintiff might have made this money by her industry and care and lent it to the deceased. We could not, within the limits of an opinion, detail all the proof, nor explain the various circumstances which have produced the conviction just expressed.

It has been contended this was a remunato-ry donation, not subject to the rules which apply to donations strictly such. Admitting the law to be as stated, the donee should prove the value of the services. Toullier, Liv. 3. tit 2, chap. 4, no. 186.

Seghers Sp Pierce for the plaintiffs.—Preston. Smith $ St/rawbridge for defendants.

Now has this been done? ^he was the testator’s slave in 1818; on the 3d August of that year, she was emancipated. In eight years after, we find her owning seven slaves. If her services were given in the house of the testator during all that time, and for his benefit, we think the money by which seven slaves were acquired, shews that she must have been paid for these services. In addition to this, a legacy of $100 is given her by the will.

The note can be considered in no other light than a attempt to disguise under the form of an onerous contract a liberality to the plaintiff, and is null for want of the formalities prescribed by law for donations inter vivos.

It is therefore ordered, adjudged and decreed, that the judgment of the court of probates be affirmed with costs.  