Succession of Couder

The opinion of the court was delivered by Breaux, J. The mother of three children, Mrs. Pierre Couder, bequeathed her estate to two, with the exception of the following .bequest to the third, viz.: “ I give and bequeath to my son Emile the sum of $200, in addition to the sum of $2300 which he owes me.” The will is dated 29th of May, 1890. The testator departed this life on the 17th of June, 1892. ■ In the proceedings before the court the son, Emile, attacked the will, on the ground that no debt was ever due by him to his mother; that the will is an attempt to disinherit him; that the testatrix be•queathed property of which she was not the owner. The plaintiff prays for judgment against the executor and the legatees, annulling and setting aside the last will of said Mrs. Julie ■Couder, and annulling the probate of the will. And, in the alternative, ¡should the court not consider him entitled to that relief, he prays that the legacies be reduced conformably to the law’s requirement. The executor of the mother’s succession and the legatees are joined as defendants in the suit. The executor defends, and he pleads an indebtedness arising, he alleges, out of the son’s (Emile) theft and embezzlement of money from his mother in 1866, amounting to $2525, and for other amounts, aggregating altogether $3974. The plaintiff, Emile Couder, died shortly after the suit had been instituted. His widow and heirs, after his death, joined as parties plaintiff and prosecute in their names. The court a qua decreed that the legacies be reduced to the disposable portion, and that the donations mortis causa be subject to adjustment and settlement of the community existing between the late Pierre Couder and the testatrix; that.certain property described in the judgment is part of the community; that the declarations by the — 269 — testatrix of previous indebtedness of Emile Oouder contained in her will and alleged in tbe reconventional demand filed in the suit is of no effect, being prescribed. In the rule for a new trial, interposed by the executor, he avers, as grounds for a new trial, that it was affirmatively proved that the amount declared in the will of the late Mrs. Pierre Oouder was justly due by Emile Oouder; and that prescription does not apply in matters of succession among the heirs claiming from their author. The questions argued by counsel and before us for our determination are whether there was an amount proved as due by the heir, Emile, to the succession of his'mother, and, if proved, whether prescription applies? The amount of the claim in the motion for a new trial was limited to the sum declared in the will as due by the plaintiff. We dispose of the claims alleged in the petition for an additional amount with the statement that they are not proved by sufficient evidence to justify a judgment allowing them. Gillespie vs. Day, 19 La. 265. They consist of alleged collections by plaintiff, not satisfactorily proved. If such collections were made they may have been settled. The mother, who has carefully charged him with the amount she said was due, is silent as to these additional items. Only one witness testified regarding them. The records do not disclose any corroborating testimony in this respect. The amount exceeds $500, and can not be considered proved on the uncorrobated testimony of one witness. With reference to the remainder, the amount charged by the testatrix in her will, his sister testifies that it was taken by her brother Emile. She did not see him take it, but relates circumstances showing that, the contents of a tin box belonging to the mother was taken by him. She testifies that it amounted to more than $2000. She saw the amount counted and placed in the box. It was locked. A short time after, on the request of the brother, it was handed to him by his mother. He took it to his room. On its return it no longer contained the amount. — 270 — ■ Another witness testifies, positively, that the amount thus taken was $2500. These witnesses testify that the brother, Emile, admitted at the time that he had taken the money. The declaration of the will is a corroboration that can not be overlooked in the dealing between the mother and son. Upon that subject, commenting upon similar articles of the Code of Prance it is laid down as a correct principle: ■ La déclaration faite par le pére de famille dans son testament que Pun de ses enfants a regu de lui avant son décés une somme qu’il précise, ne fait pas preuve suffisante que la somme ait été en effet regu de fagon á autoriser les autres enfants á eu exiger le rapport. Basten, 10 Avril, 1854, D. P. 54, 2, 216; Dalloz et Vergé Codes Annotés, Art. 851, No. 23, etc. No. 24. Cependant une déclaration du pére commun rédigée sous forme des dispositions de derniére volonté et qui contient par notes successives séparément signées de lui les comptes des sommes avancées á chacun de ses enfants, et dont il veut que le rapport soit fait á sa succession pour qu’une égalité régne entre ses enfants quoiqu’elle ne vaille pas comme disposition testamentaire en ce que la premiére note serait seule datée, a été néanmoins déclaré suffisante pour que le juge décidat d’aprés ces notes qu’il est du rapport et en déterminat la quotité, alors surtout qu’il est reconnu que les avances ont été faites et que l’héritier ne prouve pas qu’il soit libéré. Reg. 28 Aout, 1811, J. G. Succ. 1202. It being abstracted by the son from his mother’s succession it was subject to collation. The child is bound to collate such amounts. Succession of St. Julien Tournillion, 15 An. 263. The object of collation is to establish equality among the heirs; each heir has a right to that equality. There would not be equality if an heir were not compelled to collate, and the restitution of an amount taken could not be forced. The fact that the amount was taken against the will of the owner should make the collation the more imperative. The heir should collate that which he has taken from his mother, the same as that he should collate sums advanced to him. Dalloz Dictionnaire de Jurisprudence, Title Rapport, Art. 483, No. 204. — 271 — To the same effect is Dalloz et Verge Codes Annotés, Art. 851, No. 38. Paris 6 Mai, 1846, D. P. 462, 133. L’ enfant devant également le rapport de ce qu’il aurait détourné de la maison paternelle si l’objet était de quelque valeur. Ce serait méme une restitution dont il ne se dispenserait pas (en renoncant a la succession du pére). Duranton, T. J. N., 365 D. A., No. 23. Mais cela ne s’entend, sans doute, remarque fort bien Vageille, Art. 855, No. 8, que soustractions antérieures á l’ouverture de la succession, les autres étant réglées par les Arts. 792 et 801. Dans ce premier cas Vageille accorde bien le premier rapport, mais seulement si le vol a causé une perte assez grande pour obliger le pére a quelque alienation ou ,á des dettes subsistantes, mais la mention ■qu’en porte le pére dans ses papiers ne serait qu’une indication mais non une preuve determinante. Dalloz Dictionaire de Jurisprudence; Art. 483, No. 204; Dalloz et Vergé Codes Annotés, Art. 851, No. 35. The argument of plaintiff’s counsel is directed principally to the plea of prescription. The offence, he urges, was laid in 1866 and the parties died in 1892, ■during which time no demand was made for the amount. An heir had been discharged under the act of Congress entitled “ An act to establish a uniform system of bankruptcy throughout the United States,” approved 19th August, 1841. The provisions of the act extended to all debts of the insolvent existing at the time of the discharge. The court decided that this did not release the heir from the obligation to collate. It was not within the reach of the bankrupt act. Succession of Mrs. Simon Cucullu on opposition of S. Cucullu, 9 An. 96. A debt was not prescribed at the date of the opening of a succession. It was held that the opponent in the case was as much bound to account for “ whatever he owed at the time, as he would be for a movable which he had received or taken possession of belonging to the succession.” “If,” adds the court, “ prescription.of debts previous to the death of the ancestor can relieve the heir (the debtor) from collating (upon which we express no opinion), it can not have that effect after the succession has once been opened.” Succession ■of Skipwith, 15 An. 211. Laurent Droit Civil Franeais, Vol. 10, p. 650, propounds the question When begins the prescription of the action to compel colla — 272 — tion? It has been decided, says that commentator, that there is no prescription possible during the existence of the donor, for evident reasons, since the obligation to collate dates only from the date of heirship; that is, prescription runs from the date of the death of the donor. Collation is an incident of the operation of partition; it can not be separately subjected to prescription without holding that the action of partition may be partially extinguished, in so far as relates to collation, though in full force and effect in so far as relates to a distri-bution of the property. This would be contradictory, for of properties to be distributed are the donations to the heirs that are subject to collation; therefore, during the time that the action for a partition lies, the action “ en rapport” is inextinguished. Eadern sensu is Fuzier Hermann, Vol. 2, p. 255. Marcadé, upon the subject, adds: A verbal criticism of no importance, in so far as relates to prescription: that accounting for the debt is not a “ rapport ” of the debt to the mass of the succession, but a payment: that it follows logically and naturally that the settlement by deducting from the portion of the heir is a payment and’ not a “ rapport ” to the succession. This distinction between the “rapport” of donation and the payment of an advance by the heir in the settlement of a succession plays a part in the matter of the renunciation of a succession by the-heir, but none in so far as relates to prescription. In the kindness of her heart the mother treated the amount, in her will, as an “ advance,” although it had been unlawfully taken from her. The heir, the commentator states, must be held for the payment* of debts, although he has renounced the succession, thus differencing debts from “donations” in collations. The French authorities hold that the obligation is not prescriptible during the existenceof “the ancestor” from whom the indebted heir-inherits. The jurisprudence of this court, upon the subject, is not different.. Such claims have never been held prescribed in this State. Donations and advances constitute part of the active mass of the succession for partition and are therefore not subject to prescription before the death of the ancestor by whom it is left. The allegation that the testatrix has included property in her lega — 273 — cies of which she is not the owner in her absolute right is sustained by the proof. The records disclose that the real estate described as numbers 150 and 152 Orleans, and 176 and 176 1-2 Robertson street, is property of the community lately existing between Pierre Couder and wife, deceased. The judgment appealed from decrees that it is property of the community. It is therefore ordered, adjudged and decreed that plaintiff’s demands against the defendant to annul and set aside the last will of Mrs. Julie Couder, and to annul and set aside the probate of the will, be rejected. A judgment is rendered against plaintiff and in favor of the succession of Julie Couder for the sum of $2300 as charged in the will of the testatrix, Julie Couder. That in the partition, the legacies be restricted to the disposable portion of decedent’s interest in the property bequeathed. To the extent of the foregoing decree, the judgment appealed from is annulled, avoided and reversed. In so far only as the judgment appealed from decrees that the real estate before described forms part of the community, it is decreed that it is affirmed at appellee’s costs.