Depas v. Riez

2 La. Ann. 30

• Court: Supreme Court of Louisiana
• Decided: January 15, 1847
• Status: Published

Opinion

The judgment of the court was pronounced by

Rost, J.

In this appeal, an action of partition instituted by the only son and heir of a testator against his step-mother, who is sole executrix and legatee under an universal title, has been, by consent of parties, consolidated with an opposition, made by the -plaintiff^ to the account of her administration rendered by the executrix.

The consolidated cases present the following questions for our consideration:

1st. To what share of the succession is Nanette Riez, the second wife of the testator, entitled, under a testamentary disposition giving her all that the law permits her husband to dispose of in her favor, either in full property or in usufruct, as she may elect, and dispensing her from giving security in case she should elect the usufruct.

2nd. Could the testator, leaving a forced heir, dispense her from giving security, as he has done?

3rd. What recompense is due to the community for moneys expended during its existence, in useful improvements on a town lot belonging to the testator at the time of his marriage ?

4th. Is a recompense due tho community for eleven hundred dollars of the price of said lot, paid during the marriage ?

5th. Of what property consisted the proper estate of the testator, at the time of his death.

6th. Is the account rendered by the executrix correct, and such as tho law requires?

The court below having decided some of those points in favor of each of the parties and against the other, the defendant has appealed, and tho plaintiff has asked, in his answer to the appeal, that the judgment be amended as to tho points decided against him.

In addition to these consolidated cases, the plaintiff took a rule upon the defendant, to show cause why she should not be dismissed from the office of executrix, for having failed to deposit in bank the moneys of the succession, as required by the 3rd section of the act of 1837. That rule was made absolute, and the defendant appealed. By consent of parties, that appeal comes up in the same record.

I. The first question involved in this controversy was decided by us, in accordance with the view taken of it by the plaintiff’s counsel, in the case of the Succession of Hoa, 1 Ann. Rep., 142.

We there held that the testamentary dispositions made by the husband to his wife, when he left children at his death, were governed by art. 1739 of tho Louisiana Code, and that the rule laid down in art. 1480 was not intended to apply to donations between married persons. We further held that, the word donations used in art. 1739, was to bo understood as embracing testamentary dispositions as well as donations inter vivos. Art. 1739 is not applicable to this controversy, but the interpretation put upon it on that occasion would bring the present case under art. 1745, which provides that a naan who contracts a second marriage, having children by a former one, can give to his wife only the least child’s portion, and that only as an usufruct, and that, in no case, shall the donation exceed the usufruct of one fifth of the donor’s estate.

We have been asked to reconsider that decision, and have been glad to have an opportunity of doing so. The point it determines was never before presented to our courts, and has been considered by many as not free from difficulty. A thorough examination of the context of our Code, and of all the authorities within our reach, bearing at all on the subject, has satisfied us that we had taken at first a correct view of the law.

The error of the defendant’s counsel arises from mistaking, as many able men have done before him, definitions for propositions, and arguing upon the supposition that there is in the subject of a definition a fixed idea, other than that contained in its attribute.

Taking the definitions given by the Roman laws, of donations inter vivos and donations mortis causa, as expressive of a fixed idea, independent of the positive enactments in pari materia found in those laws, and testing by the definitions thus understood the moaning of the positive enactments of our Code on tho same subject, he has proved conclusively the non-existence of donations mortis causa under our laws. His is nearly the mental process by which Bishop Berkley thought he had proved the invisibility of distance, extension, figure, and magnitude.

Definitions have no meaning beyond that which those who use them intend they should have. When incorporated in a code, they exclusively refer to the positive enactments inserted in that code on the subject of which they treat, and have no meaning beyond those enactments.

The intendment of the definitions of the Roman law must be sought in the compilations of Justinian. The meaning of those found in our Code, is to be deduced from that body of laws. It is true that the definition of donations mortis causa, is not in Louisiana what it was in Rome, and that we apply the same name to a different thing; but when it is considered that no two systems ,of philosophy adojnt the same definitions of virtue and of liberty, it will appear neither strange nor unreasonable that the definitions of our legislators should at times differ from those of the Romans. Their definitions of donations mortis causa, is particularly full, pointed and explicit. The very first article on the subject of donations provides that, property may be gratuitously disposed of or acquired, by donations inter vivos or mortis causa, made in the forms established by the Code. Art.-1453. The only forms established or permitted by the Code for donations mortis causa, are testaments.

Art. 1455 defines what our lawgivers consider as donations mortis causa. Every subsequent chapter of the Code on the same subject, recognizes those donations with reference to last wills, and uses as synonymous the words dispositions and donations mortis causa; nay, art. 1563 positively ordains that they shall be considered as synonymous.

“ The name given to the act of last will is of no importance, and dispositions may be made by testament under this title, or under that of institution of heir, of legacy, codicil, donation mortis causa, or under any other name indicating the last will, provided that the act be clothed in the forms required for the validity of a testament, and the clauses it contains, or the manner in which it is made, clearly establish that it is a disposition of last will.”

It is contended that art. 1745, which we consider as applicable to this case, is found in the chapter of donations between married persons, either by manage contract or during marriage; that donations made during marriage, must be such as can take effect during marriage ; and that, as a testamentary disposition does not take effect till after the marriage is dissolved,' such a disposition does not come within the rule.

The difficulty which meets this argument is, that the donation of a child’s part, whatever be its form, qan have none of the essential requisites of a donation inter vivos; it is revocable at pleasure, and the child’s part, which is the thing given, cannot be ascertained before the number of the children, and their shares are fixed by the death of the donor. It is a donation of an uncertain portion of the property which he will leave at his death.

“ La donation de ce dont la loipermet de disposer est une veritable donation d cause de mort; car ce n’est qu’au doces du donateur que l’on pourra connaitre la consistance d’une pareille donation, qui varié suivant le nombre ei la qualilé des héritiers, suivant les acquisitions et les dettes qui existeront á cette époque.” Dalloz, vol. 5, Dispositions entre-vifs, p. 445. See also 5 Toull., no. 889. Poth., Cont. de Mar. nos. 595, 533, 547, 548. Grenier, Cont. de Mar. no. 684.

So that this argument cannot be carried to its legitimate conclusions, without depriving the husband of the right to make to his second wife a donation of any kind. There cannot be a doubt of the applicability of art. 1745 to testamentary dispositions, and the legacy in this case must be made to comply with its provisions.

The court of the first instance gave judgment in favor of the defendant for one-fiftli of the proper estate of tho testator as a usufruct only, and ordered the property of the community to be equally divided between her and the plaintiff. In this we think there is error. Our laws do not justify distinctions founded on the nature or the origin of property. The power vested in the husband to give to his second wife the usufruct of a child’s part, not exceeding one-fifth of his succession, extends to all the property of which he may die possessed, whether the same was brought by him into marriage, or subsequently acquired; otherwise the husband who brought nothing into marriage, however rich ho might be, could make no donation to his wife. Such is not the intention of the law.

II. Art. 1485 of the Civil Code forbids testators to dispose of the legitimate portion to the prejudice of their descendants, and art. 552, which authorizes them to dispense the usufructuaries from giving security, must be construed with reference to that prohibition. The power to place the property, forming part of the legitimate portion, in the possession of the usufructuary, without such security as will ensure its return at the expiration of the usufruct, would enable testators to evade a regulation of public order. Such a power never can exist. Its existence is denied by the Courts of France, under dispositions of law similar to ours, and the argument upon which their decisions rest, appear to us unanswerable. Dalloz, Dict, de Jurisp. verbo Usufruit, no. 484. Same author, Recueil Périodique, 2de partie, 1826, p. 131. Michel v. Martin, same work, 1833, 2de. partie, p. 188. Soto mayor, v. Guilles. Same work, 1837, 2nde partie, p. 88, Coustard v. His Children. Proudhon, t. 2, no. 824 et seq, 4 Duranton, no. 611.

The court below erred in dispensing the defendant from giving the security required by articles 551 and 552 of the Civil Code.

III. A recompense is due to the community for the value.of the useful improvements made during its continuance on the proper estate of the testator; but the distinction attempted -to be established by the defendant’s counsel between art. 2377 of our Code and art. 1437 of the Napoléon Code, is not perceived by us. The concluding part of the latter article is an explanation, not a limitation, of the first part of it. Both articles lay down the general rule that, a recompense is due the community for the value of the improvements made during marriage on the proper estate of the husband or wife, and the necessary inference from both is that, this value is to bo determined, not at the time tho improvements were made, but at the dissolution of the marriage. Neither the value of the property at the time of the marriage, nor the actual value of tho improvements at the time they were made, are necessary to betaken into consideration. The improvements have benefited the community, by increasing the value and income of the property it has enjoyed to the day of its dissolution ; from that day only, have the heirs of the testator profited by them, and the profit can not exceed their value at that time. If they should have cost more than that value,’the difference is a bad speculation, a loss of the community, for which no recompense is duo. 12 Toull. p. 213. Pothier, Traite de la Comm. vol. 4, no. 636. Same author, .Donations entre mari et femme, no. 57. Dalloz, Jurisp. du Roy. Verbo Contrat do mariage. Duranton, vol. 14, pp. 453, 456.

Wo recognize as proper tho rules laid down by tho late Supreme Court in the case of Babin v. Nolan, 4th Robinson, 286, and 6th Robinson, 514, for the purpose of ascertaining the recompense due the community in such cases, and although thoso rules have not been strictly pursued in this controversy, the evidence in the record is sufficiently explicit to enable us to do justice.

The mechanic who contracted for and made nearly all the improvements, and the brother of the testator, who knows all the improvements that have been made, proved that they did not cost over $800. The experts appointed by the judge reported that they were now worth over $1400, and the witness, Barnett, swears that, without them, the lot in St, Philip street, upon which they were made, would not now be worth, by nearly fifty per cent, what it cost the testator.

Whatevor be the present value of the improvements, the recompense due the community for them cannot exceed their cost. See Pothier, de la Communautó, vol. 7, chap. 6, p. 186, et seq.

We infer from the report of the experts and the testimony of Barnett, that the improvements gave, at the time of the dissolution of the community, an additional value of $800 to the lot; this is the maximum of the recompense it can receive.

The assertion that the plaintiff could not disprove the declaration in the will that, the improvements cost $4,000, requires no answer.

IV. Any legal evidence is admissible to rebut the legal presumption that the note of $1,100, due seven months after the marriage, was paid out of the community funds/ The plaintiff has shown that the defendant brought nothing into marriage, and that she exercised no separate trade or industry of any kind. He has further proved that, at the time of the marriage, the testator had in bank the sum of $526 25 cents, and that between that time and the maturity of the note, he deposited there $3,941 25, which, it is contended, could not be profits made at bis trade of stevedore in the space of seven months. It would be very unsafe to take the credit side of the bank-book as the measure of the wealth of the testator; but this evidence was probably sufficient to put the defendant upon proof of the manner in which, and the time when, the testator became possessed of those funds, but this has not been attempted. There is, moreover, a circumstance in the cause, which, taken in connexion with that evidence, satisfies us that the note was not paid by the community. The testator describes with minuteness in his will, all the property and credits of the community, and, for the manifest purpose of evading the prohibition of the law, not to impair the legitimate portion of his son, he declares that the community is entitled to a recompense of $4,000 expended during marriage, in improvements on his proper estate, when, in truth, the sum thus expended did not exceed $800, and he does not mention the note of $1,100, as having been paid by the community. We infer from his silence that, it was not.

V. We are of opinion the court erred in considering the $526 25, which the testator had in bank at the time of his marriage, as forming part of the proper estate left by him at his death. It is shown that most of the sums subsequently deposited by him, were withdrawn almost as soon as deposited, and that what was not so withdrawn, would not have sufficed to pay half of the note of $1,100. We must presume, therefore, that an amount equal to the deposit, existing at the time of the marriage, was applied to its extinguishment.

The community is entitled to the enjoyment of all the property and effects belonging to the husband at the time of the marriage. Civil Code, art. 2371. Wo have just held one of the consequences of that legal right to be, that the recompense duo the community for improvements made during marriage on the proper estate of the husband or wife, is not, generally speaking, the whole cost of tbose improvements, but only their value at the time the community ceased to enjoy them.

The necessary result from this exposition of the law is, that the community owes no recompense for the diminution of value of the effects of the husband or wife, by reason of said enjoyment.

The plaintiff may take out of the community, in the condition in which they were at the death of the testator, the furniture and tools brought by him into marriage, but he is not entitled to be credited for their value, at the time tho marriage took place. 'The only proper estate left by the testator, Í3 the house and lot in St. Philip street, valued at $6,000.

VI. The account filed by the executrix is clearly erroneous. The debts of the community must be paid out of its assets. The property left by the testator, to one undivided share of which she is entitled, is only what will remain after payment of those debts. Whatever portion of the succession is necessary to pay thorn, belongs to his creditors, not to his heirs or legatees. The account must be amended, so as to charge her with the whole amount of the sums received by her, and also with the rent of the house she occupies, at the rate of $12 per month, and the hire of the slave Clarissa, at the same rate.

The counsel for the plaintiff alleges that she was not authorized to pay the debts of the succession; but as it is not denied that the debts placed upon the account were due, she must have credit for those she has paid, and account for the balance against her.

The evidence in the record does not show whether'orjnot the property can be divided in kind. In order to ascertain that fact, and to enable the parties to submit to the court of the first instance any questions not settled by this opinien, which may arise in the course of the partition, it is necessary that the cause should be remanded.

It is therefore ordered that, the judgment be reversed, and the case remanded, with directions to the court of the first instance, to cause a partition of the property composing the succession of Phinias Pepas, to be made between the plaintiff and the defendant according to law, and in conformity with the following rules:

1. The lot in St. Philip sheet, with the improvements thereon, to be considered as the only proper estate of the testator.

2. The community to receive a recompense of $800, for the value of the improvements aforesaid.

3. No notice to be taken of the note of $1,100, given by the testator for the balance of the price of said lot, and paid out of his private funds.

4. The account filed by the executrix to be amended, so as to charge her with the sum of $950 47. This sum, after deducting from it $807 28, the amount of the debts which, according to the account, she has paid for the suc.cession, will leave against her a balance of $143 19, for which she must account to the succession, with legal interest from 13th March, 1846, the day of the filing of the opposition to her account.

5. A sufficient reserve to be made to satisfy the debts unpaid, and the necessary costs and expenses attending the settlement of the succession.

G. Out of the remainder, the defendant to receive one-half of the common property, or of its proceeds, as the case may be; and that, upon giving the security required by arts. 551, 552 of the Civil Code, she further receive onc-fifth of all the property composing the succession of Phinias Depas, or of its proceeds, as the case may be, as a usufruct only.

7. The plaintiff to receive, in full property, the other four-fifths of his father’s succession, and the evidence of the securities .which the defendant is bound to give.

It is further ordered, that the costs of this appeal be paid by the plaintiff and appellant, in equal portions.

There is no error in the judgment of the court below, dismissing the executrix from office. The 3d sect, of the act of 1837 is imperative, and it is not pretended that she has complied with its requisitions. The allegation that she was dispensed from complying with them by the plaintiff’s counsel, is not sustained by evidence. That judgment is, therefore, affirmed, with costs.