Imágenes de páginas

ceased, have not denounced it to justice, are declared unworthy and incapable of inheriting.

We will not enter into the administration of estates, which appears to have been lamely provided for by the code, nor into all the minute steps relating to the liabilities of the heirs, and the partition of the estate. It will be sufficient to observe, that each heir is bound only for his proportion of the debts; and that, in the distribution, the most rigid exactness is observed in making the portion of each equal. Children coming to the succession of their father, are obliged to collate, or bring back, either in nature or value, all the donations or advantages they have received in the lifetime of the father; and the whole is made into a mass, unless such donation were expressly declared to be an extra portion. The rules relative to collation among co-heirs, are founded on the principles of justice, and on the most perfect equality.

The next title of the code treats of the gratuitous disposition of property by donation, to take effect in the lifetime of the donor, (inter vivos,) or after his decease, (mortis causâ.) It embraces the important matter of testaments, and their solemnities, the restriction on the disinherison of forced heirs, the portions to such heirs, and the quantum which may be disposed of to their prejudice. We will endeavour to give a short view of those peculiar features of the system under examination, even at the risk, of being tedious to our readers.

The first and highest natural duty of a man, in society, is to provide for those to whom he gives existence, and next for those to whom he owes it. This is the basis of the whole law of succession and donation, as established by the civil law, and sanctioned by the Code of Louisiana. Parents and children are considered as forced heirs; and they cannot, by any evasion, be deprived of a certain portion of the property of those, from whom the law entitles them to inherit the whole, except for certain causes specified in the code. Thus the law endeavours to a certain extent to enforce the natural obligation; and every man is constituted, as it were, the trustee of that class of his presumptive heirs, and he is under a legal incapacity to defeat their right. This portion is called the legitime. The reserved portion or legitime of legitimate descendants, is four-fifths of the property of the parent, and he can dispose gratuitously of only one-fifth. That of ascendants coming to the succession of their children, is two-thirds, leaving onethird as the disposable portion. If there be no forced heirs, there exists no restriction, except in relation to natural children, who, if incestuous or adulterous, cannot receive more than bare alimony; and, if duly acknowledged, are capable of receiving either by testament or donation, inter vivos, one-third of the property of the natural parent, if he has left any legitimate ascend

ants-one-half, if he leaves only brothers and sisters; and threefourths, if only more remote collaterals. In such cases, they are less favoured than strangers. Donations which exceed the disposable portion, in any of these cases, are not void for the whole, but only reducible; and may be declared valid, as far as the disposable portion; and, in case of several successive donations, the last must be first attached. Every species of substitution (entail) is abolished.

Donations, inter vivos, are irrevocable, except for ingratitude on the part of the donee-for non-performance of conditions; and in consequence of the subsequent birth of a child to the donor. Ingratitude is evinced, by an attempt on the part of the donee to take the life of the donor-by cruel treatment, crimes, or grievous injuries towards him, and by refusing him food when in distress; but the action of revocation must be instituted within one year after the act of ingratitude complained of. The subsequent birth of a child, or even the legitimation by marriage, of a natural child, born after the donation, revokes the donation, ipso jure; nor is it restored by the death of the child.

Donations, mortis causâ, can only be made by testament, except those by marriage contract; which is regarded by the law with peculiar favour. The code has provided a variety of forms of testaments, and leaves it to the citizen to choose what form he pleases; but the solemnities required for each class of testaments are of strict law, and a deviation from them is fatal. Testaments are either nuncupative, mystic, or olographic. Nuncupative wills are either by public act, or under private signature; and the first requires a notary public and three witnesses, residing in the place; or five, if not residing in the place. It must be signed by the testator, and written by the notary, as dictatedit must be read to the testator in presence of the witnesses, and express mention must be made of all these formalities. The second may be written by any one, but requires the presence of five witnesses of the place, and seven if otherwise, or it will suffice if the testator produce the will already written, and declare it to be his testament in the presence of the same number of witnesses. The mystic will, testamentum in scriptis of the Roman law, must be signed by the testator. The paper containing it is sealed up, or covered with a sealed envelope, and presented by the testator to the notary and seven witnesses, to whom he declares, that the paper contains his testament. The notary then draws up a superscription on the same paper, or the envelope, certifying the act of presentation, and the declaration of the testator; which is signed by the testator, notary, and witnesses. The olographic form of testament is the most simple and most safe-no other formality is required, than that it should be

entirely written, signed, and dated in the proper handwriting of the testator.

It is only by testament, that a forced heir either in the descending or ascending line can be disinherited, and that by name, and expressly and for a just cause specifically set forth in the will. The causes for which a child may be disinherited, are twelve in number; 1st, striking the parent, or raising the hand to strike; 2d, cruelty-a crime or grievous injury towards the parent; 3d, an attempt to take his life; 4th, accusing the parent of a capital crime, except treason; 5th, refusing him sustenance, having the means to furnish it; 6th, neglecting to take care of a parent become insane; 7th, refusing to ransom him from captivity; 8th, using coercion to prevent a parent from making a will; 9th, incestuous commerce with the father's wife; 10th, refusing to bail a parent out of prison; 11th, marrying without parent's consent, while a minor; 12th, a daughter refusing a suitable establishment in marriage, to lead a life of prostitution. The first ten of the above causes, justify the disinherison of grandchildren. The causes for which ascendants may be validly disinherited by their descendants, are equally precise, and are eight in number. 1st, if the parent has accused the child of a capital crime, except treason; 2d, an attempt to take his life; 3d, using violence to prevent a child from making a will; 4th, refusing sustenance; 5th, neglecting to take care of a child insane; 6th, neglecting to ransom him from captivity; 7th, if one of the ascendants has attempted another's life, he may be disinherited by the descendant; 8th, incestuous commerce with the son's wife.

The same title contains the restrictions on the liberality of husband and wife towards each other, by marriage settlement or otherwise. It also maintains the principles of the "Edit des secondes nôces" in France, the work of the Chancellor De l'Hopital, which forbids a man or woman who contracts a second marriage, having children by a previous one, from giving to the second husband or wife, more than the least child's portion, and that only in usufruct; and in no case can the donation exceed one-fifth of the donor's estate.

3d. The code proceeds to the third means of acquiring property-to wit, by the effect of obligations, resulting from contracts. But, before entering in detail into the minute consideration of the vast variety of agreements and contracts, and the rules peculiar to each, it developes those principles in the abstract, which are equally applicable to all the engagements, which may be formed by the agreements of parties. It is an epitome of the Roman law of contracts, divested of some of its refinements and subtleties. It is that part of Roman jurisprudence, which displays in the greatest perfection profound wisdom and equity, and that acute logic which have made it to

be considered as among the most perfect forms of written reason. Whoever has studied the character of Rome, only in the history of her military achievements, in her monuments, and her political organization, has not formed a full and adequate conception of her real greatness as an intellectual people. Her provinces were conquered by barbarians; her political power has long since ceased to exist; vast improvements have been made in political science; new nations, springing from her ruins, have attained a higher state of civilization than Rome ever knew; and yet the Roman law still maintains its supremacy-its spirit is infused into all the civil institutions of Southern Europe. Rome, through the medium of her jurisprudence, is still the great mistress of human affairs, in every thing which relates to the rights, duties, and obligations of men in the social state; and her influence is felt in regions where her victorious eagles never flew. Indeed, it may be affirmed, that if every other monument of her power and greatness were destroyed-if nothing had survived of her eloquence and poetry, enough would still remain in the body of her laws, and the writings of her jurisconsults, to give us the highest idea of her moral grandeur as a nation. It is by no means our intention to analyse this part of the Code of Louisiana. We shall content ourselves with referring to the writings of Pothier, and particularly his treatise on Obligations, as the guide of the compilers of the code. Nor would we be understood as speaking disparagingly of the common law, nor in terms of unqualified praise of the Roman jurisprudence. In relation to some contracts, the common law perhaps, furnishes rules more broad and applicable in the practical affairs of life; and, it must be admitted, that the civilians sometimes push their distinctions and inductions to a very metaphysical nicety, and leave the line be tween ethics and jurisprudence-that line which separates the empire of conscience from that of the civil power, exceedingly shadowy and undefined.

Among the most important contracts treated of in this part of the code, is that which regulates the pecuniary rights and interests of married persons, in relation to strangers, and between themselves. It may be remarked, that by the civil law marriage was not originally a means of acquiring property; that the husband, so far from acquiring even the personal effects of his wife, was not entitled to the administration of her property; but the community of gains, as established by the customary law in France, transferred to the husband substantially the personal or moveable property of the wife. In Louisiana, whenever a marriage is contracted without any special stipulations on the subject, a community of gains takes place, by operation of law, in relation to their future acquisitions, but the property previously owned by the wife, of whatever nature it may be, does not

compose a part of the stock in trade. It is composed only of the profits of the property of which the husband has the administration, of the produce of their reciprocal industry, and of all the property acquired during the marriage, by both or either, except donations made to one of the parties, or an inheritance falling to either. By the Code Napoleon, the moveable effects of the wife and husband before marriage, fall into the community, and their moveable debts are equally a charge on it; moveable property, acquired by inheritance during the marriage, also, by the law of France, enters, into the community. In Louisiana, it is otherwise; and each is only liable for his own debts contracted before marriage. The husband, in relation to the common acquisitions, is the absolute master and head of the partnership; he may dispose of the whole without the wife's consent. But at the dissolution of the marriage, she, or her heirs, may exonerate herself from the payment of any of the debts, by renouncing the community; but if she accepts, or intermeddles, she is liable for one half of the debts, and is entitled to one half of the property which remains. On renouncing, she is entitled to take back what she brought into marriage. It is obvious that the wife has no vested right in the property acquired as above stated, until the dissolution of the marriage; that her right is altogether eventual, and depends upon her own option. She is allowed time to deliberate whether she will accept or renounce; and on accepting, either tacitly or expressly, she becomes irrevocably liable for one half of the debts contracted during marriage, out of her own private fortune.

But the parties have a right, by previous contract, to regulate their pecuniary interests otherwise, and as they please, provided their agreement do not tend to alter the legal order of descents, nor to derogate from the legitimate authority of the husband, as the head of the family, and contain nothing contrary to good morals. They may stipulate that their future acquisitions shall be regulated by the laws of any state of the Union, and renounce the laws of Louisiana in that particular, that there shall exist no community of property, or a modified one. We have already seen what donations they are capable of making to each other, in consideration of marriage, and under what modifications.

The most usual convention by marriage contract, is the settlement of dowry. By dowry, is meant that property which the wife brings to the husband to aid in supporting the charges of matrimony. Whatever is settled on her by the contract, either by herself or parents, or even strangers, whether in money or otherwise, constitutes her dowry. It can neither be settled nor augmented during marriage. The husband alone has the administration, and he cannot be deprived of it, except on a separation of property when it is in danger from the dissipation and extra

« AnteriorContinuar »