Cawthon v. Kimbell

The opinion of the court was delivered by McEnery, J. John Kimbell was twice married. By the first marriage there were five children; by the second four. The first wife died in 1851, and the second marriage 'was celebrated in May, 1853. John Kimbell died in 1888, leaving the second wife surviving. Emily Kimbell, issue of the first marriage, married A. L. Cawthon. John R. Cawthon, the plaintiff, is the issue of this marriage. His mother died in 1861, and his father in 1863. The plaintiff instituted this suit against the surviving widow and the heirs of the second marriage, alleging (hat John Kimbell, his grandfather, brought twenty-eight hundred acres of land and some lots in the town of Homer and some personal property into the second community which was his grandfather’s separate property, and valued at thirteen thousand four hundred and fifty dollars, and is entitled as heir of John Kimbell to one-eighth of all this property and [754] one-sixteenth of the personal property acquired during the second community, and in his possession at the time of his death. His one-eighth interest is valued at one thousand nine hundred and five dollars. There was a partition of the property among the heirs of John Kimbell by the second marriage. This partition is attacked, and there is a prayer for it to be declared null and void, and that the land be restored to the succession of John Kimbell. This land, it is alleged, embraced fifteen hundred acres, the balance remaining after having made donations to his children, and which the second wife and the four children by-the second marriage partitioned among themselves. He prays for a moneyed judgment for his interest in all the property, with five per cent, interest from the death of John Kimbell, his grandfather, in default of returning the property to the succession. In answer the defendants admit plaintiff is the heir of John Kim-bell and plead a general denial, and averred that he had no interest in the succession of John Kimbell, as he had received more than his share in the estate of his grandfather during his lifetime, and that his mother had been settled with for her share in the estate of Oynthia Kimbell, her mother, and prayed that plaintiff’s demand be rejected. Before the case was set for trial the defendants filed a lengthy amended answer amplifying their original answer. This amended answer in no way changes the substance of the original answer, but enumerates the reasons why plaintiff should not recover by alleging that the land claimed by plaintiff was disposedjof during John Kim-bell’s lifetime; that the personal property perished during his lifetime ; that his mother had received an advance from the estate of John Kimbell, and was bound to collate the same. There is no allegation of any fact in the answer that could not be proven under the original answer. It does not in any way change the original answer, and in the sound discretion of the court it was permissible in the furtherance of justice, as there was no injury to plaintiff or prejudice to his rights. The amended answer contains allegations also that are only legal inferences from facts stated. There was ' judgment rejecting plaintiff’s demand, and he has appealed. The statement in the record shows that John Kimbell owned in his lifetime two thousand acres of land. The deeds show that he [755] •disposed of one thousand seven hundred and fifteen acres, but there was error as to one hundred and twenty acres in the description, this amount not having been sold or parted with. This left four hundred and five acres on hand at his death. The defendants, however, admit that there were four hundred and sixty-nine acres on hand at the time of his death, which were partitioned among the four heirs and widow. The movables amounted to four hundred and fifty dollars. He gave to his children, exclusive of amount given to plaintiff’s mother, seven thousand three hundred and eighty-five dollars. Add to this the amount given to the plaintiff’s mother, the sum of fifteen hundred dollars, and the value of the land and the personal property of the succession, the amount to be distributed would be the sum of eleven thousand three hundred and ninety-two dollars, each heir’s share being one thousand four hundred and twenty-four dollars, which shows that the plaintiff has received more than his portion of his grandfather’s succession. The plaintiff attacks the donation made to his mother because it does not conform to Article 1536, Revised Civil Code, which says that “ an act shall be passed before a notary public and two witnesses of any donation inter vivos of immovable property or incorporeal things, ”Letc. The real contention is in relation to the donation of the slave. The act of donation Í3 as follows: “ Claiborne, La., received of John Kimbell the sum of seven hundred dollars in full of my interest in the succession of my mother, Cynthia Kimbell, deceased, and the sum of three hundred dollars in full of my interest in the estate and succession of my brother, John Randolph Kimbell, deceased, and the sum of fifteen hundred dollars, to-wit: a boy Billy, at thirteen hundred and fifty, and one hundred and fifty in money, to be charged to me from John Kimbell as his property in his succession and estate, this the 4th day of June, A. D. 1861. Emily Kimbell.” “ I authorize my wife to sign the above and bind herself. “A. T. Cawthon.” The above receipt shows that the donation was' executed and therefore accepted by the donee. C. 0. 1541. The plaintiff contends that as the donor in his lifetime never confirmed this donation to supply the defects in the original act, it [756] null and void, and no title to the property ever passed from him. So far as the donee is concerned, he can not retain the property and attack the donation, escaping the obligation of accounting for the same. Having accepted the donation and being in possession of the effects donated, as to him it is perfected. In the case of Gillespie vs. Day, 19 La. 263, it was held that where the father made a verbal donation of a slave to a son, and at the death of his son as one of the members of a family meeting he advised that the property be sold as the-property of the minor child of the deceased, he can not claim back either the slave or the proceeds, although the donation per se did not divest him of title. In the instant case in a judicial proceeding the grandfather acknowledged the donation to his daughter to the property donated in order to confirm title to the same to his grandson in the matter of his tutorship. We think the principle enunciated in the case referred to appropriately applies to this. But independent of this the rule is universal in jurisprudence that a party can not retain the thing and repudiate the title by which he holds possession of it. Therefore if the plaintiff wants to participate in the succession of his grandfather he must account for what he has. received as an advance in said succession. He can not retain the advance and come in and participate and thus destroy that equality which the law says must exist among the heirs. The emancipation of the slave did not relieve the plaintiff from the obligation to collate that which his mother had received from his grandfather’s estate. The property — the slave — was inherited by him from his mother and was a part of her estate when she died. The donation of the slave was made in pursuance of Arts. 1361 and 1362 of the Code of 1825, which say: Art. 1361. “ When slaves have been given, 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.” Art. 1362. “Therefore the donation of slaves contains an absolute transfer of the rights of the donor to the donee in the slaves thus given. They are at the risk of the donee, who is bound to support their loss or deterioration, at the same time that he profits by the children born of them; and if the donee dispose in good faith of all or any of the slaves, the action of revendieation for recovering the [757] ■slaves on the part of his co-heirs for the collation due to them will not lie against those who are the purchasers or holders of the slaves.” The donation of the slave invested the donee absolutely with title to him. He was at his risk, and he must collate his value no matter in what manner the donee lost him, whether by sale, death, by theft,' ■or by emancipation. But this is no longer an open question. The jurisprudence on this point is firmly fixed. Slaves donated and lost by emancipation while in the possession and ownership of the donee do not relieve the donee from the obligation of collating their value. Ventress vs. Brown, 34 An. 457; Succession of Hale, 40 An. 335; Succession of Meyer, 44 An. 871. We find no error in the judgment appealed from. Judgment affirmed.