Succession of De Bellisle

Buchanan, J. The marriage contract between Joseph Léborne de Bellisle and Marie Aselie JDuhon, contains the following- clause : “ En consideration du futur mariage, le future époux declare faire donation entre-vifs pure et simple et irrevocable, á la future épouse, comme un témoignage de l’affeclion, qu’il lui porte, ce que la future épousfe accepte avoc reconnaissance. lo. D’une somme de deux mille piastres. [478] 2o. D’une autre somme de sept cents piastres, destiné pour l’achat d’une esclave, laquelle sera achetée au nom de la future épouse, par acto authen-tique, et deviendra son bien dotal. 3o. 11 fait aussi donation pure et simple á la dite future épouse, ses heritiers ou leurs déscendants, dans le cas oil la dito futuro épouse mourút avant lui, d’une somme de cinq mille piastres, laquelle donation aura effet au décés du futur époux, et sera préleyée des biens los plus liquides de la succession du dit futur.” Joseph Leborne de Bellisle is dead. His wife, surviving him, claims five thousand dollars under the third division of the foregoing clause of the marriage contract. The claim is resisted by the testamentary executor, on the grounds: 1st. That the donation of five thousand dollars is made on a suspensive condition, to wit, the death of Marie Azelie Duhon, before the donor. 2d. That the donation in question, being intended on its face to take effect only at the death of the donor, is in reality a donation mortis causa ; and as such, is invalid, not being clothed with the forms required by law for a last will and testament. O. C. 1563. 3d. That the donation in question is not good under Articles 1728 and 1738 of the Code, because those articles only authorize the contractual institution of heir, for the whole or for an aliquot portion of the donor’s estate, and not for a specific sum of money. 4th. That the clause in question, violates the Article 1738 of the Code, inasmuch as it makes the donation transmissive to the heirs of the donee, in case of her death before the donor. 5th. That the donation is void by Article 1507 0. C. as containing a substitution. Upon the first point, we are clear that the words used in the clause under consideration, are to be understood as meaning, that the donation is made to to the wife, in case she survives the husband; and to her heirs, in case she dies before her husband. There is some awkwardness in the mode of expression ; but our interpretation is necessary to prevent an absurdity and self contradiction in the disposition. Upon the second ground of objection, oven admitting that the clause partakes of the character of a donation mortis causa, yet we cannot consider it invalidated by the Article 1563 of the Code. That article, which prohibits dispositions mortis causa being made, except in the form required for acts of last will and testament, must be considered as controlled by the subsequent Articles 1728 and 1738, taken in connection with Articles 2306, 2316 and 2308. By the last named article, every marriage contract must he made before a notary and two witnesses. All stipulations, therefore, which may bo legally inserted in a marriage contract, are sufficient in point of form, if witnessed by a notary and two witnesses, although that number of witnesses would not suffice to give the act effect as a noncupative testament. See Fowler v. Boyd, 15 La. 562. Fabre v. Sparks, 12 Rob. 21. The third ground assumed by the counsel of the executors, assumes as correct the interpretation given by Duranton to the Article 1082 of the Code Napoleon, from which our Article 1728 has been literally copied. “ May give the whole or a part of the property they shall leave at their decease,” are the expressions used in both articles. These words, according to Duranton, require [479] an institution of heir either universal or by universal title. But we prefer the interpretation of Coin-Delisle (Donations et Testaments, C. N. 1082, No. 15). “Dans la langue du Code Civil,” says that author, “le motpartie opposé au mot tout ne signiüe pas seulement une partie aliquote considérée dans son rapport aveo l’entier, il signifie encore une fraction quelconque prise isolément et sans correlation mathématique avec la masse dont elle est détachée.” And he gives numerous examples in proof of this assertion. The logical and accurate Marcadé likewise combats the opinion of Durantonin this respect, and sets the seal of his approbation upon the doctrine of Coin-Delisle. Code Civil, Art. 1082, No. 1. It is perhaps unnecessary to observe, in connection with this discussion, that the District Judge is correct in stating, in his judgment, that Article 1514 of the Code is one of the four referred to in Article 1519; the Article 1515 having, by a mistake of the compilers of the Code, been inserted in the wrong place. The fourth objection of the executors’ counsel might be well taken, had Mrs. De Bellisle died before her husband, and even her heirs, issue of this marriage, prosecuting the recovery of the donation of five thousand dollars. But that case has not arisen. The evidence does not even inform us that there was any issue of the marriage of these parties, and the terms of the Article 1788 apply to no other heirs, but such as are the issue of the marriage. The fifth objection to the donation is entirely groundless. There is nothing which resembles a prohibited substitution — an obligation to preserve for, or to return the thing to, a third person — in the contract under review. Judgment affirmed, with costs.