Delancy v. Beale

Mathews, J. delivered the opinion of the court. This suit is brought to recover from the succession of Thomas Beal, sen. the amount of a promissory note, made payable by him to his natural son, Thomas Beal, jun. who was also the natural ehild of the plaintiff Delaney, who claims as his heir. The court below gave judgment against the defendants from which they appealed. The note was made in New-Orleans, on the first day of January, 1820, for five thousand dollars, payable two years after date,with interest at the rate of six per cent, per annum. Its execution is admitted, but the defendants contend that it is void for want of consideration, as being intended to cover a donation from the father to his natural son, contrary to the laws of this state, as in force at the time of the contract; the promisor then having legiti [499] mate descendants, a fact now admitted, and that they are still in existence. Wheneve sumption arises that it was made for the purpose of disguising an illegal donation —and the onus' prodandi is on the plaintiff to establish the genuineness of the conlract. [499] According to the former Civil Codev from which the rules applicable to the present case must be derived, natural children or acknowledged bastards, cannot receive from the natural parents, by donation inter vivos or mor-tis causa beyond what is strictly necessary to procure them sustenance, or an occupation or profession, which may maintain them, whenever the father or the mother who has thus disposed in their favor, have legitimate children or descendants. Old Code, p. 210, art. 12: art. 17 found atp. 212, declares every disposition in favor of a person incapable of receiving, shall be null, whether it be disguised under the form of an onerous contract, or be made in the name of persons interposed. In interpreting these provisions of law, in order that they may have the effect intended by the legislature, whenever an onerous contract is sought to be enforced by a natural child beyond what tho law authorises the parent to grant, and contrary to the interest legitimate descendants, such contract ought to be received with suspicion, and the presumption fairly arises that it was made for the [500] purpose of disguising an illegal donation. . ' . , , Inis presumption once aamitted, throws the burthen of proof on the plaintiff to establish the genuineness of the contract. No evidence to this effect has been adduced in the present ■. _ * case. We are of opinion that the district court erred m rendering judgment for the D 0 plaintiffs and appellees. r 11 It is therefore ordered, adjudged and decreed, that the said judgment be avoided, reversed and annulled: and it is further ordered, adjudged and decreed, that judgment be here rendered in favor of the defendants and appellants, with costs in both courts.