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. *
[558]*558The 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 [559]*559iteras: 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 [560]*560said 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-[561]*561d-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-[562]*562tai 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 [563]*563donation 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
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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. *
[558]*558The 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 [559]*559iteras: 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 [560]*560said 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-[561]*561d-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-[562]*562tai 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 [563]*563donation 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. [564]*564it 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 [565]*565the 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 [566]*566compared 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 [567]*567essentially 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.