Burton's Heirs v. Burton

Bullard, J., delivered the opinion of the court. This is an action of partition among the heirs of • Jacob Burton and his wife, and the only difficulty consists in adjusting the collations among the heirs. It is necessary to premise, that the deceased removed, some years since, from Georgia, where they had “given off,” as it is termed, to their children, as they settled in the world, certain portions of property, such as slaves, small tracts of land, of household furniture or stock; and that, after they removed to Louisiana, the same thing had been done towards other children. The court below considered such advances as donations subject to collation by taking less out of the estate, and charged the co-heirs with the slaves thus received, according to their value, at the time of the advancement; and, consequently, gave the increase or young of the slaves to' them respectively. The representatives of Nathaniel Burton, one of the sons of the deceased, who had received two slaves in his life time, but which had been taken back at his death, complain of this as producing great inequality in the condition of the co-heirs, and have appealed to this court. Their counsel have relied on three points: 1st. That the court erred in not deciding that all the property of Jacob Burton, the father, given off or loaned to his children, should be returned in kind with its natural increase, whether such loans were made in Georgia' or in Louisiana, inasmuch as no titles were given, and the law recognizes equality among co-heirs as the basis of alb partitions.- 2d. That if the court was right in regarding the giving off or loans,- as absolute donations, then there was error in not' [356] allowing to the heirs of Nathaniel Burton, the price of two slaves which had been loaned to their father, and afterwards taken back. Every donation or advantage is liable to be collated among coheirs, unless expressly exempted by the donor. So, in an action of partition among co-heirs, slaves which have been given, the donee is not permitted to collate them in kind, but according to their value at the time of the donation. The donation ofslavesimports an absolute trans. fer of property, and they are at the donee’s risk, who is entitled to all the profits and increase,and must bear their deterioration and loss. 3d. That the court erred in not decreeing that the heirs should account for the use of the property loaned to them up to the time of the partition. •I. The record does not show what is the law of Georgia, in relation to such advances to children ; whether they are regarded as absolute donations, not subject to be accounted for in the settlement of the estate of the donor; or whether they be merely in the nature of loans. One witness testifies, that the custom was various on that subject; that sometimes the parents gave to their children slaves as they married off, by way of gift, and sometimes as a loan. And if the young people got into a difficulty, or died, the old people claimed the property. In the absence of proof to the contrary, the law of Georgia must be taken to be consonant to ours, and, consequently, that every donation or advantage is liable to be collated, unless expressly ex'empled by the donor. If these advances were exempted as loans in the particular case before the court, there would be an end of the controversy, for the slaves would never have ceased to belong to the ancestor, and, consequently, would still belong to the estate, together with their increase. But the co-heirs to whom slaves were given, were interrogated on facts and articles touching (hose advances, and they answer, on oath, that thejr received the slaves as a gift. We must, therefore, consider the slaves as having been (he object of a donation and subject to collation, according to (he laws of Louisiana. “When slaves have been given, says the Code, the donee is not permitted to collate them in kind. He is bound to collate for them by taking less, according to the value of the slaves at the time of the donation.” Article 1361. The next article draws the necessary conclusion, lowit: that the donation imparts an absolute transfer, that the slaves are at the risk of the donee, and that he profits by their increase, as he would suffer by their deterioration or loss. II. But the appellants complain that the heirs of Nathaniel [357] Burton ought to have been allowed the price of two slaves loaned to their father, and taken back. To this, it appears to us a satisfactory answer, to say, that they have been compelled to collate nothing on account of those two slaves, and that having been restored to the father before his death, we are to suppose they were either otherwise disposed of, or formed a part of his succession. In the latter event, they have, by this partition, received them in money, or, in other words, their share in the estate has not been diminished on account of those two slaves. III. Lastly, the complaint of the heirs of Nathaniel Burton, that their co-heirs were not decreed to account for the use of the slaves loaned to them, up to the time of the partition, appears t.o us unfounded. The slaves were at the risk of the children to whom they were given. If they had died the day after the donation, they would, nevertheless, have been compelled to collate their estimated value. It would, therefore, be manifestly unjust that they should be decreed to pay hire for them. Indeed, as soon as it is settled that there was no loan, but a donation, there is no longer any question about the hire, for the donee became liable to collate only value of the slaves. It is, therefore, ordered, adjudged and decreed, that t.he judgment of the Court of Probates b.e afBrmed, with costs.