Miller v. Andrus

The judgment of the court was pronounced- by Slidell, J. This suit was before us at the last term, and was remanded for' further proceedings. See 1 Ann. Rep. 237. It is not now pretended that the donation inter vivos made to Jesse Andrus/ by his father, exceeds the disposable portion; but it is said that the donation was, upon its face, and in express terms, a remunerative donation, and that the value of the services rendered did not equal the amount of the donation. This-objection-cannot be sustained, As the donation did not exceed-the disposable portion, the value of the son’s services was a matter within the discretion of the donor, and the estimate which he has thought proper to put upon them cannot be questioned by the heirs. The donation, though styled-remunerative, maybe' treated as an ordinary donation-; the announcement of the donor’s motive does not affect it. The value of the services would only have' been material, if it had been found that the donor had exceeded the disposable portion. The do. nation might then have bean reduced. See Succession of Fox, 2 Rob. 292. Civil Code, 1500. In our former decree we reserved to Susan Andrus, the right of establishing, by proper evidence, her claim-, if any she had, against the succession for services rendored. No allowance has been made to her by the court below, and [768] of this she now complains. We are unable'to give her relief. She offered no testimony at the second trial, as to the nature and value of the alleged services. Some testimony had been offered at a- previous trial, and a consent has been filed in this court, signed by a portion'of the litigants, that this testimony may be considered. But as all the parties in interest have not joined in the consent, wo do not consider ourselves at liberty to notice it. We may add that, even if the testimony were properly before us, it is probable we should consider it too loose and unsatisfactory to form the basis of an allowance. Judgment affirmed.