
    Barriere F. W. C. v. Gladding’s Curator.
    A note executed in extremis, in favor of the concubine for a sum of money shown to have been in lieu of the value of a house and lot, which the deceased intended to bequeathe, but was unable to make his will; is considered as a disposition mortis causa, and not being clothed with the formalities of law, is without effect. — 0. 0.1568.
    No disposition mortis cama can be mado, but by last will and testament; and when it is clearly proved that the deceased intended to make his will, for the avowed purpose of bequeathing to his concubine certain immovable 'property, but was prevented and gave his note for its value: — held, that no recovery can be liad on it.
    Appeal from the court of probates for the parish and city of New Orleans.
    This is an action on a promissory note, executed by J. H. Gladding, a few hours before his death, in favor of the plaintiff, a free woman of color, with whom he lived and called his housekeeper, for the sum of $4000, payable thirty days after date. Suit was brought against the curator of the deceased, who refused to allow or pay it.
    The curator pleaded that said note was not Gladding’s voluntary act: but was made in his extreme and last sickness, when he was incapable of making any act, not even his last will. That no consideration was given for said note; the plaintiff living in concubinage with the deceased was incapable of receiving by donation remunerative or otherwise more than one tenth part of his estate, which she had already received in money and movables. lie prays that the plaintiff’s demand be rejected, &c.
    Upon these pleadings and issues the cause was tried.
    On the trial the facts set up in the pleadings were substantially proved. The testimony of a notary, showed that the deceased sent for Mm, and he went to see him about ten o’clock on the day he died, and was requested to make his will. The deceased told him he wished to give all his property to a free colored illegitimate child he had living with one of his sisters in Al-[145] bany, and to a free colored woman (the plaintiff) with whom he had been living, calling her his housekeeper. On being told he could not make a valid will and disinherit his brothers and sisters, he then desired to pass a sale of the house and lot he lived in to the woman, but the notary refused, and soon after left him. About four o’clock he made the note now in suit, which he signed by making his mark, and in about three hours after-wards he died. It was shown that the amount of the note was intended to be in place of the house and lot, proposed to be bequeathed to the plaintiff. The testator however declared that it was given as a reward or remuneration of the plaintiff, who he said had been very faithful to him. It appeared she had a servant or two and some personal property, and money which she had received from the deceased.
    The judge of probates, by reason of the 1468th article of the Louisiana Code, gave judgment in favor of the curator, disallowing the demand, and the plaintiff appealed.
    Kennicott, for the plaintiff,
    argued from the following points :
    1st. The note sued upon in this case was executed by the late J. H. Glad-ding, during his last sickness, and was his own voluntary act, done when he was possessed of a sound memory, and the other mental qualifications required to enable a man to bind himself and heirs, in a valid contract.
    2d. The consideration for this note was the services at hard labor of the plaintiff, for twelve years; and is therefore sufficient, lawful, and competent; and constitutes more than an equivalent for the value of the aforesaid note.
    3d. The judge a quo erred in supposing that the note was not given as a remuneration for the long and faithful services of the plaintiff. The late J. H. Gladding repeatedly during the twelve years, acknowledged the great value of said services, and that by the profit arising therefrom, he had been enabled to accumulate his little fortune.
    4th. Under these circumstances, Gladding, with the prospect of [146] death before him, might naturally be supposed to desire to do justice to the living before entering upon eternity, particularly to one who had been to him in sickness and health, a slave for years.
    5th. The judge a quo erred. There was no simulated sale of household furniture, and the check for $700 was not given as a compensation for plaintiff’s services, but for money loaned to Gladding, and of which he had the use for many years; and when too he was in a state of penury and want.
    The judgment of the court of probates must be reversed, that justice may be done.
    Preston, for the defendant,
    relied upon the illegality of the consideration of the note, that it was a disguised donation in the form of a disposition mortis causa, and illegal, null and void.
   Simon, J.

delivered the opinion of the court.

Plaintiff sues to recover a sum of $4000, which she alleges to be the amount of a note subscribed by Joseph H. Gladding, on the 25th of July, 1839. The defendant, who is the curator of the succession of the alleged maker of the. note, pleads, that the instrument sued upon was not the voluntary act of the deceased, but was made when from his extreme and last sickness he was incapable of making any act not even a last will; that no consideration was given for. the said note, and that the plaintiff lived in a state of concubinage with the deceased, and was incapable of recovering by donation, remunerative or otherwise, more than one tenth part of his estate, which she had already and actually received in money and movables.

The evidence shows, among other facts which it would be too long to detail, that the plaintiff and the deceased lived in a state of notorious concubinage; that the note sued -on was signed after four o’clock, p. m. ; that Glad-ding died at about nine o’clock of the same evening; and that he was not in [147] a situation to make a contract, having been in the morning and afternoon apparently out of his senses; that the note was made to an amount equal to the value of a lot of ground and the buildings thereon erected, which the deceased intended to bequeathe to the plaintiff; and that after the note had been read to Gladding, he said it was right, rose, and although he used to write a good hand, made his cross to it, because he was too weak in body at the time to write. The evidence shows further that in the morning of the day of Gladding’s death, a notary,. Mr. Christy, had been sent for to make said Gladding’s will; that the notary came, had a conversation with Gladding, and told him it was better to postpone the making of his will, as he would get better; that in the afternoon, the witnesses to the note proposed that a note should be given; and this was concluded upon because they could not have a will made. A great deal of testimony has also been adduced by the plaintiff to prove the value of her services as Gladding’s servant; and she has attempted to show that the deceased’s main object in signing the note of $4,000 was to remunerate her for her said services. The record shows also the. estate of the deceased to be worth $22,600, $1633 of which consist in movables, and the balance in immovable property; and that the plaintiff had received before Gladding’s death, by certain sales alleged to be simulated, a slave and some furniture, and also a check for $700 which was recovered on the day of his death.

Notwithstanding the strenuous efforts made by plaintiff’s counsel, to convince us that his client ought to be entitlod to recover, that Gladding had the necessary capacity to bind himself in a valid contract; that the note sued on was given for a valuable consideration, to wit, to remunerate the plaintiff for the value of services which she had rendered to the deceased as his' servant, during the space of twelve years; that as a concubine, she would even be capable of receiving a donation of movables, to the amount of one tenth part [148] of the estate; and that in supposing the note to be a disguised donation under the form of an onerous contract, such donations are valid, but only reducible if they exceed the disposable portion; we feel bound, under the evidence and circumstances of the case, to consider the note sued on, in no other light but as having for its object a disposition mortis causa, and as such, not being clothed with the necessary and requisite formalities of the law, it cannot, in our opinion, have any legal effect.

Under the article 1453 of the Louisiana Oode, property can neither be acquired nor disposed of gratuitously, unless by donations inter vivos or moetis oatjsa, made in the forms hereafter established for one or the other of these acts ; ” and according to article 1455, a donation, mortis causa, is defined to be “ an act to talce effect, when the donor shall no longer exist, by which he disposes of the whole or a part of his property, &e. &c." The article 1563 says that: “ Ufo disposition mortis oatjsa shall henceforth be made otherwise than by last will or testament; all other form is abrogatedNow, it has been clearly proven that the deceased intended to make his will for the undenied and even avowed purpose of bequeathing to the plaintiff certain immovable property of the value of $4000, and that owing to certain circumstances, principally attributable to the laudable and delicate refusal of the notary, whose motives it is not necessary to inquire into, the will could not be executed ; and that in order to obviate this difficulty, it was suggested to make a note exactly corresponding to the value or amount of the intended legacy; and accordingly, about four hours before Gladding’s death, and when there could not be any further hope of his recovery, he was prevailed upon to sign a note of $4000, payable thirty days after date, or rather thirty days after his death; the payment of which was to stand in lieu of the said intended legacy. From these facts, can it be doubted that Gladding’s intention, in signing the note sued on, was to make a disposition mortis cama f he and those [149] who assisted him were aware that he could not live, and the note became the expression of what he wished to be done after his death, or in other words, Ms testament; testamentum est voluntatis nostree justa sententia de es quod quis post mortem suam fieri relit. Considering it as such, we must conclude that the amount of this note, shown to be virtually nothing but a mere disposition mortis causa, cannot be recovered; and that the judge a quo did not err in giving judgment in favor of the defendant.

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