
    FLORES vs. LEMEE, ADMINISTRATOR, &C.
    APPEAL FROM THE COURT OP PROBATES, POR THE PARISH OP NATCHITOCHES.
    A marriage contract passed before a justice of the peace is null; and any gifts or donations made in it are null and void.
    A donation propter nuptias makes no part of the wife’s dowry, and she has no mortgage for its restitution.
    Every donation inter vivos between husband and wife, by marriage contract or other matrimonial agreement, is subject to the general laws prescribed for ordinary donations, and especially in article 1523 and following, of the Louisiana Code, under the penalty of nullity.
    This is an action by the surviving wife, against ti istrator of her deceased husband’s estate, to reco^ of two thousand five hundred dollars, the amt donation propter nuptias, made in their marriage passed before a justice of the peace, the 21st Nover She alleges, she has a right to take out of any succession of her deceased husband this sum, wfiteh she^ demands from the administrator. A copy of the marriagir contract is annexed, and judgment prayed thereon for the sum claimed.
    The defendant pleaded a general denial. The only evidence offered was the marriage contract, executed before á justice of the peace, in which the husband gives to his intended spouse, the sum of two thousand five hundred dollars, in prospect of the marriage then about to be solemnized, which he declares he has delivered.
    
    There was judgment for the defendant, and the plaintiff appealed.
    
      Rothrock, for the appellant,
    contended, that admitting the act of donation is null for a vice or defect of form, it may still be good to establish, (as the act declares, the sum of money was really delivered by the donor to the donee,) that it formed her dotal property; and that the husband had the administration of the property and that it might be reclaimed as asked for.
    
      Sherburne, contra.
    No mortgage exists in the wife’s favor on account of a donation propter nuplias, made by the husband.
    2. The wife’s mortgage on her husband’s property, only exists for the restitution of her dotal and paraphernal property.
    3. A donation propter nuptias, by the husband to the wife, makes no part of the wife’s dowry. Louisiana Code, 2318.
    4. The defendant is administrator of Ruey’s succession, and is the representative of its creditors. No allegation or proof has been made that the succession is solvent, and the wife is entitled to no preference over creditors.
    5. A donation, not made before a notary and two witnesses is null. Idem., article 523, 1525. 8 Martin, N. S., 127.
    6 Every donation inter vivos, though made by marriage contract to the husband or wife, is subject to the general rules as to the from of donations. Idem., 1727, 1737.
    The donation was made before a justice of the peace, and is therefore void. Justices of the peace, can only celebrate marriages, and are not the proper officers to authenticate matrimonial agreements.
   Simon, J.,

delivered the opinion of the court.

This suit is brought by a widow, who sues the administrator of the estate of her husband, for the recovery of two thousand five hundred dollars, which, she alleges, is the amount of a donation propter nuptias made her by her husband in the contract of marriage; and which sum is by said contract to be taken, at the dissolution of the community, out of the best and most available property of the succession. She prays for the payment of the said sum, and claims the benefit of a privilege and lien on the property of the succession, or if she cannot obtain this, that she be paid as an ordinary creditor. The lower court disallowed her pretensions, and she appealed.

a marriage before*a JusUee of.t.he Pl'fce>is gifts or dona-are"8 ™uU6* and

donat!on propier nuptias the wife’sPdowry’ and she *Ias its restitution,

„ Every donation inter vivos band^nd wifei , marriage matrimonial afubj^t^to the seneral taws ordinary donaciaíTy h¡dar3c& idana Code, undet. [he of nullity.

The marriage took place in 1836, and the contract was passed before a justice of the peace ; it is, therefore, not valid as a marriage contract. Louisiana Code, article 2308. Had the contract of marriage been a valid one, it is clear that a donation propter nuptias, by the husband to the wife, makes no part of the wife’s dowry. Idem., article 2318 ; and as the wife’s mortgage on her husband’s property, exists only for the restitution of her dolal and paraphernal effects, plaintiff would not be entitled to claim the right of privilege and lien on the property of the succession, as she prayed for in her petition. But the act of donation, in this case, was made before a justice of the peace, and is, consequently, not belter than of it had been made by an act under private signature, and the gift is void, if not made before a notary public and two witnesses. Idem., articles 1523, 1525. 8 Martin, N. S., 126. It was not a manual gift accompanied by the payment of the money, since the amount thereof was to be paid after the dissolution of the community; and it is a well established rule that every donation inter vivos, though made by marriage contract to the husband or wife, or made between married persons by matrimonial agreement, is subject to the general rules prescribed for ordinary donations. Idem., articles 1727, 1737. Our laws are imperative on this subject, and a donation cannot validly be made in any other form but that pointed out by articles 1523 et seq., under the penalty of nullity, We are of opinion the judge a quo did not err in rejecting j & v jo plaintiff s claim.

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