
    
      DESTREHAN vs. DESTREHAN’S EXECUTORS.
    
    Appeal from the court of the first district.
    , Grand chil* dren coming to ‘⅛ partition of their grandfather’s estate* with uncles and; aunts> are noc obliged to collate an ™e* rous obligation d,ue b? theh'fe
   Mathews, J.,

delivered the opinion of the * court. The questions submitted to the court, 1 to be decided in the present case, arise out 1 of proceedings relating to an adiustment and r ~ 75 J partition of the succession of the late Jean 1 Noel Destrehan : some are. of fact and others of law. To understand them, it is necessary to state the situation of the parties to this suit, and that of their ancestor, from whom they claim to inherit The widow G. N. Destrehan claims, as tutrix of her minor children now living, and as heir to those who died since the death of their father and grandfather, a part of the succession of the latter, which appears to have been administered, and was finally adjudged to his wife at the appraised value, as a partner in the community, and who is since dead, leaving as heirs the same persons who succeeded as such to her husband’s estate, with the exception of the present appellant, so far as she claims in her own right. *

The evidence of the case shows, that G. N, Destrehan died before his father, leaving chil-¿Jren, who were called to the inheritance of ^eir grandfather, J. N. Destrehan, together with uncles and aunts, immediate descendants of the latter. The widow of G. N. Destrehan renounced the community of acquests and gains in her husband’s estate, and, as tutrix of her minor children, accepted for them hi' succession, under the benefit of an inventory. The widow J. N. Destrehan, to whom had been adjudged the property which was held in common between her and her husband previous to his death, attempted to bequeath and distribute the amount of her husband's succession amongst his heirs, and for that purpose seems to have rendered her accounts to the judge of the court of probates: to these accounts opposition was made by the present appellant, which gives rise to the questions now before the court, the most important of which relates to the charges against the children of G. N. Destrehan, for advances made to the father during his life time, and which they are required to collate with the other heirs of their grandfather. The sums thus required to be collated, consist of several iteras: 1st. A sum of 7000 dollars; 2d, One of 9000 dollars; 3d. A note executed by his son, G. N. Destrehan, to his father, for 58,564 dollars, payable on the first oí April, 1826. The opposition extended also to .other charges against the estate of her husband, by Mrs. Destrehan the elder, which, it was contended were properly chargeable to herself; but, as the correctness of the decision of the court below, in relation to these matters, is not introduced, we shall not notice them further than to express our concurrence, this far, in the judgment of the district court: that judgment is also correct in relation to the item of 700Ü dollars, which does not appear to have been established by evidence. In relation to the 9000 dollars, we are also of opinion, that the decision of the district court is, in point of fact; as being proven by the oath of one credible witness, and corroborating circumstances, such as the will of the grandfather, and the evidence of advancements made by him to his daughters, &c.

The value of the slave, which was estimated at 1000 dollars, and died before the opening of the succession of J. N. Destrehan, was properly deducted as having perished for said succession: but the judgment of the dis- . . Jb tnct court haying ordered the balance of this item, viz. 8000 dollars, together with a Part ⅛6 amount of the note of 58,564 dollars. to be collated, the present appeal was taken by the opponents: and, it is now contended on their part, 1st. That they are not legally bound to collate any thing advanced to their father; 2d. That if they are compel-lable by law to collate ; no part of the amount of the note of their father to the grandfather, ought to enter into such collation.

In support of the first position assumed by the counsel of the appellants, he relies principally on the doctrine of the Spanish law, as laid down by Febrero, part 2, book 2, chap. 3, nos. 26 to 29. Admitting, that grandchildren who succeeded to the inheritance of their grandfather, conjointly with descendants in the first degree, and who had renounced the inheritance of their father on account of its being worth little or nothing, in consequence of waste and bad management by him, were not bound by the former laws of this country to collate advancements made to their father: we are decidedly of opinion, that this rule of inheritance has been changed by the intro-d-uction of the Civil Code. Without undertaking completely to reconcile the apparent discrepancy between the 19th article of page 't í». and articles 27 and 28 in page Jñü of the Code, it might be observed, that the first relates to the general doctrine on the subject of degrees of kindred and representation amongst relations in the decending line; whilst the two last are specific in their enactments, and lay down rules clear and-special with regard to the manner in which docen dants must succeed to the estates of their ascendants. Allowing that they are at variance, the latter may be considered as exceptions to the former: according to the rules of inheritance expressly declared in these last articles, grandchildren who partake ot a succession together with children, come in by representation of their fathers and mothers, and take sure steps, &c.: if grandchildren come in by right of representation, they are bound to collate what had been given to their fathers or mothers, although they may have renounced their inheritances. Civil Code, p. 194, art. 203.

From this view of the subject, it appearsdo us, that a doubt cannot be reasonably enter-tai tied as to the liability of grandchildren to , . collate property received by their immediate paret,t8 as advancements made by their ascendants in the first degree.

The appellants in the present case, must be considered as inheriting from their grandfather by representation, and are therefore bound to bring back to the mass of his succession whatever sums of money or other property may have been advanced to their father during his life time, as donations to further his interest and comfort in life, &c.; of this class of beneficent advances, is the sum of 8000 dollars, proven as above stated ; but, as it relates to the item of 58,564 dollars, the amount of the note executed as before represented, this court has doubted much the propriety of the judgment of the court below, and finally come to the conclusion, that it is not supportable on legal principles. The decision of this question, the most difficult and important in the cause, depends on a just interpretation of the 205th and 206th articles of the Code, found at pages 195 and 196, which are expressed in the words following: 44The advantages which a father bestows on his son, though in any other manner than by donation or legacy, are subject to collation.” “Thus when a father has sold a thing to his son at a very low price, or has paid for him the price of some purchase, or has spent money to improve his son’s estate, all that is subject to collation.” Art. 206. “The acts, however, of ascendants, which are beneficial to the descendants, are not all liable to collation. Those acts, by which the ascendant causes some part of his property to pass into the hands of his descendants by concealed and indirect means, are only liable to it: thus, there is no collation due, where a partnership was bona fide entered into between the ascendant and one of his lawful descendants, when the conditions of such partnership are duly proven.”

“The same rule applies to all burthensome obligations, and to all mercantile transaction; which the son executes with the father; none of which give place to collation, unless there has been on the part of the father an express or tacit intention of bestowing an advantage on his son; and thus, by that means, some part of the patrimony of one child is taken to increase the patrimony of the other.” Before entering into any discussion on these articles. it may not be improper to remark, that the . , ... whole doctrine oí collation is based principally on j|)e equality which the huv requires in the distribution oí successions amongst co-heirs.

The main foundation of the charge against the estate of G. X, Destrehan. in favor of that of his father, amounting to the large sum of ,Sñ8.561, as evidenced by the promissory nóte of the former, seems, from the evidence of the case, to have been payments made by the latter, of the price of a plantation bought by his son. Had the affair been left in its original situation, the amount thus paid would most clearly have been embraced by the provisions of the 205th article of the Code, as cited. But it does appear from an investigation of the whole transaction, that interest was added on interest, item to item, until the original sum was more than doubled ; giving to the matter the appearance of n contract, completely onerous on the part of the obligor; and which certainly bears no intrinsic evidence of an intention on the part oi the father of bestowing an advantage on his son, to increase his patrimony at the expense of that of his other children. It appears, from some evidence on the record, that Mr. Destrehan the elder was in the habit of exacting ten per cent per annum interest, on the sums by him advanced to his children, for the benefit of the younger members of his family, or those who remained under his paternal care and direction; and this mode of conduct is said to be sanctioned by reason and justice, and recognised as legal by principles found in the Roman law. If a parent gives to his child, who is about to take upon himself the management of his own affairs; in other words, who is about to commence the arduous task of providing for his own wants and those of a family, should he be thus connected in life, no more of his estate than a proportion equal to those retained for children who remain with him, it is difficult to discover any justice in burthening the child advanced with a heavy interest on the capital given. Ten per cent, per annum, we believe to be the full value of any capital used in the ordinary course of business. Is it then a donation to advance money at that rate of interest; ought it not to be rather considered as an onerous loan ? Parents are not generally In the habit of giving to their children, by way of advancement, more than a moderate proportion of their property compared with that which they retain for their own use, and the benefit of that part of then family which remains with them.

It is hardly necessary to state, that a child of full age may contract with his father, and create obligations equally binding as would be created by similar contracts with any other individual of the community. In the present case, G. N. Destrehan promised to pay to his father a large sum of money, made up of ad-1 vanees for his benefit, and interest thereon,at least at the highest rate tolerated by law, if no more, which it is riot necessary to decide in this case. In this promise we can see nothing but a contract of loan on interest in the usual form of such agreements. It is written, and certainly could have been enforced against the son, without his being at liberty to prove any thing contrary to the writing. If his estate were now solvent it could be effectually enforced against his representatives, and the administrators of his father’s estate would be bound to see it fully collected, unless the heirs chose to relinquish it. The circumstance of the alleged insolvency of the estate of the son cannot, in our opinion, alter the nature of the contract, which is essentially commercial and burthensome on J . . , the part of the promisor and his succession..,

Seghers for the plaintiff Derbigny, Eustis, and Grymes, for the defendants.

In collating the $8,000, we think, with the judge below, that it ought to be placed with the succession of the grandfather alone.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be avoided, reversed, and annulled; and it is further ordered, adjudged and decreed, that the cause be sent back to the court of probates, for the purpose of causing a final adjustment and partition of the succession of J. N. Destrehan, according to the principles expressed in this opinion and judgment, the appellees paying the costs of this appeal.

Derbigny, Eustis, and Grymes,

on an application for a re-hearing.

In this case a judgment, has been rendered, which is considered as contrary to law', and evidence; and above all, against that equity,;. which ought to be the principal guide in deciding a case of this nature. ./;?'«'-}„

Your honorable court has principally based ... their judgment on the circumstance, that the proof Gf the advances made bj J. N. Desire-han to his son, appears in the shape of a note of hand, subscribed by the son in favor of the father, in which is included the interest, at ibe rate oí ten per cent, per annum; and from thence they have concluded that this is one of those burthensome obligations, which form an exception to the general rule by which heirs are bound to return to the mass of the inheritance the sums by them received from their ancestor in his life time, the whole of which is to be distributed equally among them all.

But in the first place, and before recurring to the evidence which shows what has been the true nature of this transaction, your honorable court has evidently been mistaken in the interpretation of the article of our Code, which says, “ that burthensome obligations and mercantile transactions which the son executes with his father, do not give him lieu to collation, unless there has been, on the part of the father, an express or tacit intention of bestowing an advantage on his son, and there is by that means some part of the patrimony of one , child taken to increase the patrimony of the other.” This paragraph of art. 206, p. 197 our Code, .is evidently intended to apply ex.-dmively to the obligations contracted by the father towards the son.; otherwise it would have no sense, for an obligation of the son towards the father can never conceal an intention on the part of the father to bestow an advantage on his son. If there could be a doubt that this is the only reasonable interpretation which can be given to this paragraph, it is done away by recurring to the principle established in the beginning of the article, of which this paragraph is but. an illustration. “ The acts however of the ascendant which are beneficial to his descendants are not at all liable to collation''’ “ Thus there is no collation due where, &e.”

- If you will take the trouble of examining what would be the situation of things, if Guy N. Des-trefaan himself was alive, you may easily ascertain that no other interpretation can be given to the article above quoted. On the death oí his father, he would have been at the same time one. of the heirs, and one of the debtor of his, estate. A compensation, would have» established itself between his share of the iny heritance and his debt: whether a debtor or a donee,- the same result would have.,,.taken place. Whether his father lent him or gave . & him in advance the money which he had received, he must have accounted for it. ■ Not so’ ^ his father had consented in his favor an onerous obligation, he would then have been a creditor of the estate, and unless it should have been shown that this onerous obligation concealed some advantage which his father intended to bestow on him, he would not have been obliged to collate it; he would first have received the amount of his claim as creditor, and then his share of the inheritance as heir; that is most evidently the sense, indeed the only sense which can be given to the article which says, “ The acts however of the ascendant, which are beneficial to his descendants, are not all liable to collationfor the acts by which the descendant acknowledges himself the debtor of his ascendant are not acts from which he can derive any benefit; they constitute him the debtor not the creditor of the estate.

The article referred to by the court is therefore not applicable to a case of this nature; and we must beg leave to say, respectfully, that they have misunderstood it.

That the doctrine here contended for is the only sound one, is made still more evident b.v recurring to the principle universally-recog-East’n. ° 1 , nised with respect to collation.

■ The article 192, page 192, ofour Code, says, “Collation of goods is the supposed or real return which an heir makes to the mass, of some property which he received in advancement or otherwise, in order that such property may be partaken as well as the other effects of the succession.” There is no doubt, then, that Guy N. Destrehan would have been obliged to collate to the mass of his father’s., estate, what he had received in advancement or otherwise. Are those who come to the estate as his representatives, differently situated ? Hear what Pothier says on the subject: « Lorsque des petits enfans viennent a la succession de leur ayeul par representation de leur pére ou mere, ils doivent rapporter tout, ce qui a été donné ou preté á leur .pére ou mere par l’ayeul a la succession duquel ils viennent. La raison en est bien évidente; des repré-sentaos ne peuvent avoir plus de droits dans une succession que la personne quils représmtení, et du chef de laquelle ib °nnent, su i van t ce prin-cipe de droit, “ f-alterius utitur, eodern jure uti debeí,” ils ne aoivent pas plus preudre. dans la succession que cette personne y au-rail pris; ils doivent étre obligés aux mcnm rapports auxquels cette personne aurait ¿té obligée.-

“ Cette .decision a lieu, quand méme ils n’auraient pas profité de ce qui aété donné a leur pére ou mere qu’ils représentent, et qu’ils. auraient reooncé á la succession; car, comme ce n’est pas de leur chef qu’ils doivent ce rapport, mais du chef de leur pére ou mere qu’ils représentent, il est indifferent qu’ils en ayent profité ou non.

“ Cette décisíou a lieu, quand méme ces rapports absorberaient toute leur portion hé-réditaire, et qo’il ne leur resterait plus rien. lis ne pourraient prétendre en ce cas de legi-time ; car, n’ayant droit á la . succession de leur ayeul, que du chef de leur pére ou mere qu’ils repré-sentent, ils ne peuvent aussi prétendre dans eetle succession d’autre legitime que celle, quéauraient pu prétendre leur pére ou mere ; et par conséquent, ces donations leur doivent étre ¡mputées sur cette legitime cotóme elles auraient été im-putées á leur pére ou mere.”

Observe, that the above is but the expounding of the principle contained in our own Code, page 149, article 18, “ Representation is a fiction of the law, the effect.of which is to put the representative in the place, degree, and rights of the represented

These fundamental principles, to be found in every book which has treated the subject, would, it was presumed, have been the rule of conduct of your honorable court, in the decision of this case. It was thought that you would recognise, that the representatives have no more right than the represented, that qui jure alter ms utitur, codera jure uti debet. But these principles were not so much as hinted at, in the judgment of this honorable court, because they have taken the most extraordinary position, that the loan was not subject to collation by Guy N. Destrehan himself; and thus it turns out, that although Guy N. -Destrehan, if alive, would have had to account to the estate - of his father for this loan, although this loan would have been deducted from his hereditary portion, although he .would have had to compensate bis debt with his inheritance, although confusion would have taken place in him as, at once, debtor and heir; yet his representatives are discharged from his obligations, and admitted as heirs in his stead, without accounting for what he has received; and that, notwithstanding the rule which says, qui jure alterius utitur, eodem jure uti debet.

From such a result it may respectfully be inferred, that this honorable court, has misunderstood the meaning of the article on which they have based their decision; for that decision is at war with the principles on which representation is founded.

But this honorable court have, we think, not only mistaken the law, they have misapprehended the evidence in this important case. What is that evidence? Why, that J. N. Destrehan has advanced to his son a sum of$40,000, (the adverse party avows $37,000.) If you look at the memorandum or account, found among’the son’s papers, arid the production of which we compelled, you find the explication of the note of $58,564, $40,000 ol which (say $37,000 if you please) are the capital advanced; the balance is made up of the interest which J. N. Destrehan used to charge on such occasions, not for himself but for the benefit of his minor children.

N. B, Le Breton tells you: “ That Mr, J. N. Destrehan advanced some money to his son Mr, Guy N. Destrehan, and gave him up the several notes which he held ; (the notes of Guy N. Destrehan to Henderson, for the price of the plantation) and it was on this occasion that Mr, Guy N. Destrehan gave to Ins father a promissory note of $ ó8.000, which 1 witness understood from him to bo on account of the different advances which his father had made him; that in speaking of the sums he owed his father, Mr. Guy N. Destrehan spoke of them as of sums which he should never be called upon to repay, and stated that it appeared to be his father's intention to make these advances to him part of the share which might be coming to him out of his father’s estate.

Mr. Hermann tells you: “ He knows, from Mr. J. N. Destrehan and from Mr. G, JY. Des-trehan his son, that the latter had received from his father a sum of $40,000; that Mr. Destrehan, the father, manifested some reluctance in making the above advance of $40,000 to his son G. N. Destrehan, and observed, that he did so on account of the plantation then purchased by his son." He speaks also of the interest he used to charge for the benefit of his minor children, AH the witnesses state, that Guy N. Destrehan had little or nothing but ivhat he derived from his father.

The facts then, as they result from the ev.i-deuce, are these : Guy N. Destrehan, the son. . being in strait circumstances, applied to his father for assistance; his father advanced to him $40,000, but at the same time stipulated that this sum should bear an interest in favor of his minor children; it was understood however between father and son that this money never should be repaid, except out of the share which would one day come to G.N.Des-trehan in his father’s estate. The $40,000 are composed of the notes of G. N. Destrehan to Henderson, for the price of the plantation, and the balance in cash: Destrehan the father, surrendered to his son those notes, which bore Flendcrsotds endorsements, and were secured by mortgage, and took from his son his simple recognisance in the form of a note of hand to his own order.

Surely if these facts had been well understood the court would not have arrived at a conclusion which /discharges G. N. Destre-han’s representatives from accounting for this money. W as it an onerous obligation for the son to receive $40.000 ? Did he receive them at all r‘ If lie did receive them, must they not be accounted for ? lias the circumstance of Destrehan, the father, charging interest j . Ialtered the stubborn fact, that he advanced to 1 ■ . j his son $40,000 ? The interest, it is said, was |T an unjust charge: take it away, if you think '* that equity requires so; but because interest 5 has been charged, to destroy the capital can's not be justice, cannot be law.

The court seems to have mistaken the evidence still further: they say that the capital has been more than doubled by the interest: if it were even so, still that is no reason why the capital should not be accounted for*, but it is not so. The adverse party herself admits that the capital advanced was $37,000; our evidence shows $40,000. The note is $58,564; is then $18,564 more than one half of $58,564? rids is adduced to show more and more that the court has. been in an error throughout this case: and when we consider that it was argued nearly two months before it was decided, and that in this interval of time the members of this court have been absent in succession, so as to render it probable that they had no opportunity of examining this case together while it was fresh in their memories, it is not to be wondered at, that the evidence adduced, and even the laws quoted on the trial should have been but imperfectly understood, -

The plaintiffs therefore respectfully pray, that this case may be revised and argued de novo. They pray so, from a conviction that if this honorable court will find that justice has not been done, they will retrace then-steps, and show, that if they may err as other men, they are willing to correct their errors while it is yet in their power.

The re-hearing was granted; and after the argument

Porter, J.,

delivered the opinion of the court. The children of Guy N. Destrehan, deceased, who have accepted their father’s succession, with the benefit of an inventory, claim the portion in their grandfather’s estate to which their father, if alive, would have been entitled. Their uncles and aunts, with whom the partition is to be made, insist, that they must bring back into the succession and collate, various sums of money received by Guy N. Destrehan in his life time; and among others, the sum which is evidenced by his note in favor of his father, for $58,564, payable four years after date. This collation the grand children insist they are not obliged to make, and the legal rights of the parties on ... „ . , . thss issue, torm the principal question to be decided in the cause, and the only one which presents any difficulty in the decision.

After the first argument, we were of opinion that the grand children were not obliged to collate the note on which this contest has arisen. That opinion was principally founded on the article of our former code, which declares that “ burthensome obligations and mercantile transactions, which the son executes with his father are not subject to collation, unless there has been, on the part of the father, an express or tacit intention of bestowing an advantage on his son.” The words of the law certainly authorised this construction; and the reason, on which the whole of the doctrine in regard to collation rests, gave it support. It might well be supposed to have been the intention of the law maker, that the son who received any thing in advance of his future claims as heir should collate; but, that if he entered into contracts with his father, as with a third person, they should be considered as ordinary obligations, to be discharged in the usual way, with all the burthens attached to them; and that he could not be permitted, after so contracting, to free himself from these. burthens, release bim&elf from the interest, antj cojja(e -with his co-heirs, the principal a^one- The objection urged against this construction, that in no case of the obligation from the son to the father, can there be a tacit, or express intention, of bestowing an advantage on the son, appears to us of little weight; many instances might be supposed, in which that intention might be expressed by the note; many more where it would be implied. We shall take one by way of example, and it will suffice: if the father lends the son a large sum of money, without interest, and takes his note, payable at a remote period of time, for the principal, there is a clear intention evidenced of bestowing an advantage on him; and the co-heirs would assuredly have a right to demand that the sum of money so obtained should be brought back into the mass and collated. Civil Code, 196, art. 206.

But on the second argument, another provision in our law has been discovered, which has an important effect on the construction of the article just commented on. It is that which declares, that on the partition of an «•state each of the co-parceners must collate conformable to the rules hereafter prescribed; for gifts made to him, or debts by him due, This provision is directly opposed to the construction contended for, of the 20títh article. It makes debts expressly subject to collation, and does not distinguish of what kind, whether those that carry interest, or those that do not. Under such circumstances it is our duty to seek for a construction that will prevent these two provisions from clashing with each other, We must, as we have-often done before, interpret in such a way, as wilt if possible, give every part of the law effect. Civil Code, 188, art. 178.

To do so is not an easy task. The counsel have contended that the expressions u bur-thensotne obligations and mercantile transactions which the son executes with the father,” mean burthensome obligations which the father executes to the son. Such an interpretation does considerable violence to the language u-ed in the law; for a man who receives a note from another, can hardly be said to execute the rote with the person, who is bound to hiui. But there is a stronger argument against this iiferpret A;< to be drawn from the previous.and immediately preceding articles, to that which in those words are found. By them ail kinds oí feigned or simulated obligations from the father to the son are expressly provided for. It cannot be believed then, it was the intention of the law maker to provide, by ambiguous and doubtful terms, for cases on which he had the instant before expressed himself in clear and explicit language. Civil Code, 194, art. 205.

But it is not necessary to give any opinio» on this point, for it is not requisite to a decision of the case before us. Perhaps when it is presented in such a way as it must be settled, it will be found that those obligations which, in pursuance of the words of the law, the son executes with the father; that is, jointly with him, are these which are contemplated by this enactment. The clause immediately follows the provision in relation to partnerships; and it is more than probable that while the subject of contracts, in which the father and son act together, were under the consideration of the legislature, that it was thought necessary to provide for those in which they might have a joint interest, as well as those in which there was a partnership, properly so caused. It is not to be disguised, that this interpretation is liable to objections, but we think it presents fewer than that contended for by the appellees. The plain meaning of the words used, was, that which we at first gave to them: obliged to abandon our first impressions, in order to make the law consistent throughout, we can only lake that which presents the least difficulty, for it is impossible to come to clear concia* sions on such obscure legislation.

We have’ conducted the inquiry so far in relation to the rights of the father of the grand children. If he were presenting himself with his brothers and sisters, it is the opinion of the court that he would be obliged to collate the debt, which the note produced in evidence, shows to have been due by him.

This opinion brings us to the second, and equally important question in the cause; that is, whether the grand children are obliged to collate the debt due by their father, whose succession they have accepted with the be nefit of an inventory.

The affirmative of this position has been supported ; on the general principle that the representative never can have more or greater rights than the represented; that positive texts of our law have established this doctrine in . ⅛ regard to grand children; and that if the law were even doubtful, the court should prefer the interpretation, which, by establishing equality between the heirs, would do justice.

The proposition, that the representative never can have more rights than the represented, struck us, on the argument, as entitled to great weight, and as almost conclusive on the case; further reflection, however, has convinced us that it must be admitted with many modifications: taken abstractedly it cannot he controverted; for, independent of positive legislation, a man cannot give to another, rights which he does not possess. But where the representation is created by positive authority, it is subject to all the modifications which the creator may choose to attach to it; thus, in relation to our political representatives, it is well known they have rights conferred on them which their constituents do not possess either individually or collectively : the right not to be questioned for any speech, or debate; the privilege from arrest, &c. So in respect to the representation which is created by law, for dividing estates among individuals; if it should be found, on further examination, that it has been established with limitations to the . general principle, we are satisfied that, the general principle,cannot prevent these limitations from having effect

Bui it is said, the positive provisions of our law on Use subject, now unde?- consideration, support the general principle relied on. The first article quoted, is that in relation to the manner in which children are called to the succession of their grandfather, where their uncles and aunts are alive; and it siates, that the grand children coming in by way of representation, whatever may be the number, shall not receive among them ail, any thing more, than the share, or shares, which would have belonged to their fathers and mothers. This law follows that which declares, that where all the sons and daughters are dead, the children shall take by heads; and is providing for the number of shares into which the estate shall be divided, in case some of the former are alive. It is of importance then, in the present inquiry, only as, establishing that children coming to the partition of a succession under the circumstances which this case presents, ''ome in by representation. Civil Code, 150, art. 29.

“ Representation is a fiction of the law, . the effect of which is to pot the representative in the place, degree, and rights of the represented” Civil Code, 148, art. 18.

This provision, if taken alone, certainly goes the whole length for which the appellees contended. Before noticing, however, the important limitation which the legislator has thought proper to affix to it, in relation to the subject under consideration; it is necessary to a true construction of the article in which that limitation is found, to bring into view some of the other provisions of the code,on the same matter.

“ One can represent a person, to the succession of whom he has renounced. Thus it is not necessary that the children who succeed by representation should be heirs of their father and mother. Although they should have renounced their succession, they are nevertheless fit to represent them in the succession of their grandfather, or other ascendants.” Civil Code, 148, art. 25.

Now, here is ⅜ provision which cannot be reconciled with the effect, which it is contended should be given to the general rule already cited. According to that rule, the representative shall have the same rights as the renresented. This provides, that the child * . . who has renounced his father’s succession may still represent him in that of the grandfather. It is a formal provision of our law, Shat children who have renounced, or accepted, with the benefit of an inventory, are not responsible for the debts of their ancestor; then if they can represent their father, although they have renounced his estate, they stand in a different situation from him; for he would have to pay any debt he might owe to his father, or others.

The next succeeding article to that just quoted, shows still more clearly, what is meant by representation, and with what limitation it must be understood. “ When a person has been disinherited by his father or mother, or excluded by cause of unworthiness, his children cannot represent him, in the succession of their grandfather or other ascendants, if he is alive at the time of opening the succession; but they can represent him, if deceased before. Civil Code, 148, art. 26.

From this provision it follows, that the representative may have more rights than the represented. The child, if alive could take nothing: the child represents him, and yet takes ihc share in the grandfather’s estate., which the father could not have taken.

Acting on the same principle, that the representation of the father is a mere fiction of the law, the legislator has affixed a most important limit to it, in relation to the obligation of the grand children to collate. The provision in our code is in these words; “ In like manner the grand child, when inheriting in his own name from the grandfather or grandmother, is not obliged to refund the gifts made to his father, even though he should have accepted his succession; but if the grand child comes in only by right of representation, he must collate what has been given to his father, even though he should have renounced his succession. Civil Code, 191, art. 203.

The difference of the obligation between the father, and his son, in regard to the collation in the grandfather’s estate, cannot be more strikingly shown than by quoting again from the code the provision in respect to the father, and placing it in opposition to that, which imposes this burthen on the grand child. When the former partakes, «the mass Bui the latter must include the .collations.which each co-parcener may have to collate, conformable to the rules hereafter prescribed, for gifts so made to him, or debts by him due. are only obliged to bring in what has been given to their ancestor. Now if gifts included debts. why .the use of the latter word in speaking of the obligations of the father? If it did not, why confine the obligation of the grand children to what had been given? The only answer we can conceive to this .inquiry is, that the legislature intended to make a difference. That they have done so, no one who compares the phraseology of the two provisions, can for one moment hesitate to admit.

These positive provisions of our law, and the reasoning just used on them, furnish, we believe, a complete ansugMto the maxim so much pressed on us in ISjaHRment, qui jure alterius utitur, eodem jure uti debet. To this rule, to which it was said there was no exception, we have seen there are many. The error of giving it so much importance, proceeds, from confounding representation, with transmission. The latter arises from a right vested in one person being transferred to another. In such case, he who receives it can have no other, or greater rights, than the person from whom it has passed. As, if the father should die after the succession was opened, and his children came forward to represent him in the partition of their grandfather’s estate; in such case they could take neither more, nor less, than he did. But when the father dies before the grandfather, the grand children do not take their right from their father; they recenc it from the lawr, independant of his acts or his will; and even when he should have manifested a contrary intention. This distinction, which is obvious enough, does not originate with this court; it is taken from the jurists and tribunals of France, who have commented on those articles of the Napoleon Code, from which ours are copies : and they deduce from it the necessarj^Bjj^equence, that the grand child, when he TtiSUfflKri by representation, is not obliged to pay the debts of his father. Manuel de Droit Français, art. 741, in note ; Journal des Audiences, 177 ; Toullier Droit Civil Français, vol. 4, lib. 3, tit. 1, cap. 3, nos. 186, 187 ; Delvincourt, Cours de Code Civil, Notes et Explications, 28; Paillet, Legislation et Jurisprudence des Successions, vol. 2, 600.

The author last cited, in laying down the principle, that the grandchild, when he takes by representation, is not responsible for the debts due by the father, suggests a doubt whether the rule applies to those due by the latter to the grandfather, and refers to the observations of Merlin on that point. We have followed the reference, and perused it with attention; as we have also a work not cited in argument, Chabot on Successions, in which the same doctrine is found. Both these writers state, that the grandchild is obliged to collate, the gifts made to the father, and the money lent to him. Repertoire de Jurisprudence, vol. 10, p. 686; Chabot sur la loi des Successions, (ed. 1818) vol. 3, p. 366.

We are unable to see on what grounds this doctrine rests, or how a law which says, that the grandchild shall collate gifts made to the father, can be extended to debts due by him for the loan of money on interest; or any other onerous contract in which the pecuniary interests of the grandfather formed the leading motive of the contract, instead of the advancement of his child; or why the children of the grandfather should be preferred in virtue of such obligations, to any other creditor. If by the expressions used by Merlin, un simple pret d'argent. be meant, a loan of money witfa- , E” out interest- the doctrine is intelligible enough; for) t^je advancement of the father must be presumed the ruling motive. Other writers confine the obligation of the grandchildren to what has been given, Toullier, Droit Civil Français, vol. 4, liv. 3, tit, 1, cap. 6, no, 459, Delvincourt, Cours de Code Civ, vol. 3, note to p. 38.

The reasons adduced for establishing this doctrine is, that the representative cannot have more rights than the represented. We have already expressed ourselves fully on this point; hut, if this be the ground on which the obligation of the grandchild to collate money lent his father on interest be placed, then we are unable to perceive why the obligation should stop there, or on what solid grounds, debts due for property sold to the father, or on any other onerous contract, should be excluded : yet, not a writer whom we have been able to consult, carries the obligation thus far. To this doctrine, therefore, we cannot assent, opposed as it is, to what we believe the language and the spirit of the law, and to show more clearly the soundness of the construction we have adopted, and place the whole merits of this part of the. sub-,oct at once before the minds of others. We ' .. m shall bring together the several enactments, and close our observations on their legal con-struetion, by reference to a general principle, the truth of which we have never,.heard contested.

The first provision in the code which furnishes the general principle, declares, that the representative shall have the same rights as the represented.

The second provides, in relation to this particular subject, that the represented (the father) shall collate the debts due by him.

The third declares, that the representative (the grandchild)1 shall collate the gifts made (to the father) the represented.

The question then is, whether the,limitation here affixed to the general principle, is to control it. Now, there is no rule better known, and we may add, more frequently acted on in the interpretation of statutes, than this: that general provisions are controled, by special enactments which follow them. They are always understood to be exceptions^: which the law maker establishes to the general principle.

And why should this exception not be made ? and is not the limitation which thé ' legislature has thought proper to affix to the rjjle. - wise, just and politic, are questions which this court has frequently asked itself in the examination of this subject. The object of the law is, to prevent one child from profiting by parental affection, at the expense of the other. But when the object of the contract has not been the gratification of this ill regulated feeling on the part of the parent, but to- benefit himself, and promote his pecuniary interests ; whether that object be ascertained from selling to the child property at a high price, or lending him money at the heaviest rate of interest which the law will allow; he ought not, nor his heirs ought not, to stand in a better situation than other creditors. Where gain is the motive, the risk of loss should be the consequence. Nor can it be excluded from the consideration of this part of the subject, that the influence of parental authority, and the confidence which flows from filial affection, may induce the child to enter into contracts with the father, which Would not be made with other persons, and that the law is both benevolent and wise, in refusing to such agreements any preference over others.

Blit it is said this construction violates every principle of equity. If by equity be meant giving to each child, and the represen-salives of each child, exactly the same sum out of the grandfather’s estate, then this opinion does violate that equity. But abstractedly considered, we apprehend there arc few who will admit this proposition : this court cannot. The equity, independent of positive regulation, we should rather think depends on the particular circumstances of each case If the grand children, to the claims of orphan-ship and infancy, add those of poverty; and are opposed to wealth, and age, the equity would be the other way. But those matters deperfd entirely on positive law, and the opinion we have enounced, can only be inequitable in as muck as it is contrary to law. When all the parents are dead, the grand children, by a positive provision of our code, take alike, no matter what sum their fathers or mothers may have received. By the former jurisprudence of this country, grand children were not obliged-to collate even the gifts made to their parent, unless the object given, descended to them and they profited by it. The equity therefore relied on, receives as little sanction from our ancient and present legislation, as it does from the common feeling- of mankind. Civil Code 194, art. 203 ; Febrero, p. 1, cap. 1, §7, no. 117. The real question-in the cause is, was the money given in advancement of the son’s claims in the succession of the grandfather If it was, then the grand child should collate it. If on the contrary, it was a contract by which the parties became creditor and debtor in the common acceptation of the terms, then it must stand on the same footing as ordinary claims arising out of agreements entered into with strangers. The appellees, aware of this, produced parol evidence in the court of the first instance, to take the transaction out of the ordinary course of business, as evidenced by the obligation. Before, however, noticing that evidence, it is proper to set out the note itself. The following is a translation of it:

$58,564, New-Orleans, 30 April, 1822,

On the first day of April, 1826,1 promise to pay to the order of Mr. Jean Noel Destrehan, at the domicil of-Mr. David Oliver, the sum of fifty-eight thousand five hundred and sixty-four dollars, value received.

Signed , G-. N. Destrehan

Of this sum, according to ihe grand chil* dren, $21,000 was composed oí inte rest, bur the appellees insist that only S1 B,5o1 of ihc whole amount was formed in this way. It is immaterial which we adopt, in seeking for the character of the transaction.

Scarcely any agreement which could be produced in a court of justice, would less evidence an intention of a father bestowing a benefit, or conferring an advantage on his child. The note is made negotiable, and a domicil different from that of the drawer, given to facilitate this object. The heaviest rate of interest which the law will permit is charged; and a certain day fixed for the payment, at the expiration of which it could be enforced. We are at loss to imagine what other features could have belonged !o the contract, if the son had borrowed from a total stranger. The term of credit given, shows almost conclusively, that the son was not to pay out of his claims on the fathers estate. The heavy rate of interest repels the idea, that any advantage was to be conferred.

Nothing in the parol evidence destroys the strong conviction produced by these facts.

The first witness says, lie understood from the son that the note was given for diñé rent W advances which the rather had made to him. anc] tjla[ the son in speaking of them, spoke f them as sums which he would never be called on to repay, and stated that it appeared to be his father's attention to make the advances part of the share which might be coming to him out of his father's estate.

That such was the son's hope we believe; but the contract shows that it depended entirely on the father's pleasure, whether that hope should be realised or not. The witness does not state the money was lent on these terms. The note contradicts any such idea. The son did not say the father had given him the money in advance of what he might expect as heir. He only stated that it appeared to be his intention to consider it such.

This evidence does not take the case out of an ordinary loan of interest.

That in relation to the expressions used by the father, is still weaker. There is no ac-knowledgement by him, that the money was given to his son, nor any thing like it, unless one should consider such the statement, of the witness, that Mr. Destrehan the father, manifested some reluctance in making the .tilvanee of $ 10,000 to his son G. .N, Desire-han, and observed " that he did so on account of the plantation then purchased by his son.” But these expressions are too equivocal, to destroy the plain import of the instrument. An engagement, to pay at a certain time with interest, is better evidence of what the parties meant, than that furnished by conversations of this kind.

The strongest argument, in favor of the father’s intention to consider this as money given to the heir, is the entrusting him so large a sum of money without security. And we do believe that it may have entered into the consideration of the former, that if the money was not repaid the son would be obliged to collate it out of his claims on the. succession. But it is clear that he did not look to that alone, that he reserved to himself the right of enforcing his demand, whenever the credit which he gave should expire.

We therefore conclude -that, the money, which formed the consideration of this note, was not a gift from the father to the son; and that, as the law confines the obligation of the grand children, to bring into collation that which was given to their father the court below erred .in compelling the appellants to ... 1 deduct it out of. their share in J. N* Destre-han»s estate>

In the examination of this case a difficulty occurred to us, in relation to the manner in which the minor heirs have entered into the succession of their father. We have doubted whether an absolute renunciation was not necessary, instead of an acceptance with the benefit of an inventory. It is stated affiraia ti ly by several of the writers, that grand children taking the property in the grandfather’s estate, are not responsible for the debts of the father, when they renounce the succession of the latter. Their rights, when they accept with the benefit of an inventory, f.do not seem to have been noticed. After ,. much reflection we are unable to distinguish the one case from the other. The beneficiary heir is regarded merely as the administrator of the estate. And he is responsible no further than for the amount of the property belonging to the father, which comes into his ^ bands. Now that which the grand child takes in the grandfather’s estate is not the property of the father, for the .latter died before the succession was opened, consequently nothing was vested in him, which he could transmit to the son. . -

This case, as it will be'seen, is one in which there is much difficulty, and we have felt con-sideralffie doubts in regard to the true con-' struction of the articles in our code on which this contest has arisen. That which we have given, we believe to be freer from objections, than any other which can be adopted, and on the whole we do not think that the former judgment of the court requires any alteration.  