DUPLESSIS vs. KENNEDY ET ALS., 6 La. 231

Bullard, J., delivered the opinion of the court. On the 14th June, 1828, William C. Withers, by act before notary, made a donation to his sister Sarah Ann Withers, of a certain lot of ground. The donee is declared by the notary to have been present and accepting, and she signed the act. Both parties appear to have acted as persons of full age.

The clause of the act containing the conditions and limitations of the donation is in the following words. “To have and to hold the said lot of ground and premises with the appurtenances unto the said Sarah Ann Withers, her heirs and assigns, by title of donation inter vivos upon this condition, that if the said Sarah Ann Withers shall die without leaving children, or descendants of her children at the time of her decease, that then in that case, the said lot of ground and premises shall revert to and become the property of the said William C.

Withers and his heirs, as if this donation had never been made, but it is hereby declared and understood, that the said lot of ground and premises, and all improvements that may be hereafter made thereon, or any part thereof, may be sold and disposed of by the said donee, S. A. Withers, during her life time, with the consent and concurrence of the said William C. Withers the donor.” Withers, the donor, died in 1829, leaving a will written and dated in 1823, by which he bequeathed the whole of his estate in equal portions to his wife, and his sisters Sarah Ann Withers and Margaret Withers.

After his death, Sarah Ann Withers made a donation of one undivided half of the lot in question, to the widow of the donor. This suit is instituted by one of the legatees of the donor against the other two, claiming her share of the lot in question, as a part of the estate bequeathed, and alleging the nullity of the donation made to Sarah Ann Withers, on two grounds. 1.

Because the donation was not accepted; alleging that the donee was a minor above the age ofpuberty at the timé the act was passed, and should have accepted the same with the assistance of a curator, which she did not 2• Because said act contains a substitution. Unless the ground of objection to the testimony of a witness admitted in evidence on the trial, be stated in the bill of exceptions, theSupremoCourt cannot examine the objection.

It is not sufficient to object generally that the írest^musí'be the'natm^of'the OT°otherwise,°that vidente behindTñ the power of the party. vidence to prove son isgadmissE, unless it is first shown that there exists a record of written^“evidence" where thejudgment of the inferior co irt was not given on tho ques-«on of fact contested by the Snof^mpiained tucSupl'emeCourt the'corrcctness of fudge''a quo reiition of a witness, On the trial below, the defendant’s counsel offered certain witnesses to prove declarations of William C. Withers, as to the age of the defendant Sarah Ann Withers.

The witnesses were sworn and the plaintiff took a bill of exceptions. But it does not appear from the bill of exceptions on what specific ground the evidence was objected to. It is much too vague to enable the court to say that the judge a quo erred in admitting the testimony of the witnesses. The admission of the deposition of Henry Crist was also objected to on the ground that it was not the best evidence °f the facts intended to be proved thereby; and a bill of exceptions was taken to its admission by the court.

It is not enough to allege generally, that the evidence is not the best; . - - _ it must be shown that either from the nature or the fact to be proved or otherwise, that there is better evidence behind in the power of the party. If the fact to be proved was the age of Sarah Ann Withers, which we can ascerta n only by inspecting the deposition itself, then testimonial evidence would be admissible, unless it is first shown that 'there exists a record of births or other written evidence. We cannot say that the court below erred in admitting the deposition.

It is not necessary to notice a third bill of exceptions in the record taken to the ruling of the District Court in rejecting the depositions of some sisters of the donee, which were objected to on the ground of their interest in the cause. The District Court did not decide on the question of fact contested by the pleadings, to wit, the minority of the donee. This is not complained of by the parties and the court is called on to review the judgment, such only as was appealed . m . . . from.

I he admission or rejection of the evidence in ques- * tion could not have any influence on the' decision of the J questions of law presented to this court.

I* Assuming therefore, as has been assumed in the argument on both sides, that in point of fact, Sarah Ann Withers was a minor at the time, above the age of puberty, the question presented for the consideration of the court on this part of the case is, whether her acceptance without the assistance of a curator be sufficient in law to bind the donor, , or whether her' want of capacity to contract alone, renders the whole radically and absolutely null in relation to both parties. On this point numerous commentators, as well on the ancient jurisprudence as the modern legislation of France, have been cited.

They range themselves into two distinct schools; the one contending, that in cases of donation inter vivos, it is essential to its existence, that both parties should be capable of contracting, and should give their assent in the forms required by law, that without it neither party is bound, and that the nullity resulting from such incapacity is absolute.

The other maintaining, that minors above the age of puberty are capable of bettering their condition by every form of contract; and that he who contracts with such minor is bound, although the minor himself may avail himself of his want of capacity; in other words, that the nullity is only relative. Fortunately this court is not called on to reconsider these discrepancies, nor to declare which of these two systems is most consonant to the Code of France. It is rather our duty to inquire what is the legislative will in this state on this controverted point.

Our Code declares, art. 1785, that “the persons who have treated with a minor, a person interdicted, or of insane mind, or with a married woman, cannot plead the nullity of the agreement, if it is sought to be enforced by the party, when the disability shall cease, or by those who legally administer the rights of such persons during the disability.” Does this principle apply to the case before the court? It is earnestly contended that it does not, and that donations inter vivos, form an exception to the general rule.

Let us examine the extent of this principle so far as it can be learned by reference to the subject matter treated of in that part of the Code. The preliminary title to the third book of the Code of the different modes of acquiring the property of things, declares “that the property of things or goods is acquired by inheri^ance’ ebher legal or testamentary; by the effect of obligations and by the operation of law.” Louisiana Code, art. 866.

Now, whenever property is acquired by the effect of obligations, those obligations, except such as are created by operation of law, result from the agreement of parties, which is essentially a contract. And indeed it is declared, that in relation to the motive for making the contract are either gratuitous or onerous. Louisiana Code, 1665, 1753. wheneverprobyrttiieISeSrof obligations except e<i by operations of law, result from «bo agreement of parties, which is Msontianyacon- These principles are established in title four of the third 1 A book, which treats of conventional obligations.

Among the general principles relating to this subject, we find the following: “Contracts in general under whatever denomination they may or may not be included in the above division are subject to certain rules which are the subject of this title. Art. 1770. On the next

chapter of the law title^ the code proceeds to treat of the parties to a contract, and their capacity to contract, and it declares “that all cases of incapacity are subject to the following modifications and exceptions.” Louisiana Code, art. 1776. Among those modifications and exceptions is the one first recited, art. I785? that he who has treated with a person incapable of contracting, cannot plead the nullity of the agreement. It is difficult to conceive a principle more broad, more directly applicable to all matters of convention, by which property may be acquired.

And referring to the relative capacities of contracting parties. It must be decisive on this question unless there should be found something under the particulur head of donations inter vivos which controls and limits it. It is urged by the counsel for the appellant, that art. 1523 of the Code, takes this case out of the general rule. “An act shall be passed before a notary and two witnesses of every donation inter vivos, of immovable property, of slaves or incorporeal things, such as rents, credits, rights on actions, underpaid of nullity. Undoubtedly

an act of donation of immovables under private signature, would be null. The Code requires a higher solemnity. But here is

an act passed before a notary and two witnesses. The Code does not require both parties to give their consent by the same notarial act, on the contrary, it expressly authorises the acceptance by a subsequent act; suppose the donor alone had appeared and signed the act? would it have been null for want of form? % He might have retreated before acceptance; but surely the form as to him would have been sufficient to bind him. The argument of the" plaintiff’s counsel supposes that you may look beyond the instrument to decide upon its form. After all it is a question of capacity.

But it is contended that as the parties joined in the same act, they must signify their assent in the manner pointed out by the Code, and if they have not, the whole is null; and that a donation is binding only from the day of its being accepted in precise terms. La. Code, art. 1527, and 1533. If the donor alone appeared before the notary & signed the act of donation, it is not null for want of The words “must accept” in

article 1533 of the Louisiana Code, are not prohibitory so as to import a nullity if contravened, nor is the pain of nullity expressly declared. Any form of expression which shows that the parties understood each other as to the thing given, and the conditions and charges annexed to the donation is sufficient. This last

article declares that a minor arrived at the age of puberty must accept under in the authorisation or with the concurrence of his curator. But this clause is not prohibitory so as to impart a nullity, if contravened, nor is the pain of nullity expressly declared. If it had been the intention of the legislature to amend a notarial act, on the ground that one party had not given his assent in the manner directed by law, in order to make the agreement binding on him, it would have added to this

article the penalty of nullity. The acceptance to bind the donor must be made in precise terms, and binding form of expression, which shows that the parties understood each other as to the thing given, and the conditions and charges annexed to the donation, is, in our opinion, sufficient. The words “present and accepting,” followed by the signature of the parties in the present case, seems to us sufficiently precise. Such was incontestibly the Roman law on this subject. “Obligari ex omni contractu pupillus sine tutoris auctoritate non potest.

Adquirere autem sibi stipulando, et pen traditionem aecipiendo, etiam sine tutoris auctoritate potest. Digest, b. 26, t. 8, l. 9. Institutes, b. 1, t. 21. It was adopted in Spain, at least as early as the publicah°n of the Partidas. Partida, 6. t. 16, l. 17. Gomez, variœ jRps. chap.' 4, de Donatione. 1 A minor above the age of puberty, may even without the eoncurrence of a cucepüngVdoñal tlon' The principles relating to a suU from'“the "Irms theVoMtfon?1 o? of aTtipuiattxfrcturn; and ¡mere Xtim/Tl The turn asexpressed by the parties, its absolute nuiuty must be declared.

It would appear, also, from some of the authorities relied on by the plaintiff, that the same principle was recognised in France, at least in the provinces governed by the written law, and previous to the ordinance of 1731. The court is of opinion that the Louisiana Code has not abrogated this provision of the Spanish law, and that minors, above the age of puberty, and without the concurrence of a curator,'may better their condition by accepting a donation. II. The second ground of nullity alleged, is, that the act contains a substitution.

It seems to be conceded in the argument, that the expressions in the above contract “ to the said Sarah Ann Withers, her heirs and assigns,” does not amount to a substitution. Indeed the authorities are clear on that point. Pothier on Substitutions, sec. 2, art. 1. It is, however, contended, that a disguised substitution results from that clause which stipulates that the property shall revert to and become the property of the said William ‘ C. Withers, and his heirs.

This court has already decided in more than one case, that wherever it necessarily results from the language of the instrument, that a substitution was intended, its entire nullity must be pronounced.

That it is of the essence of a substitution, that the original donee should be bound by the terms of the donation, to preserve the property given, for, and transmit it to another person or class of persons, which persons are appointed to take after the original donee, ordine successivo, and in derogation of the legal order of succession; ■ that it is, in fact, an attempt to control the transmission of property, after the title, transferred from the donor, and to give it a direction different from what the law would give it. 5 Toullier, No. 21, and Sey, Arnaud vs. Tarbe. 4 Martin, N. S. p. 45.

These principles equally apply whether the substitution results from the terms used in creating the donation, or under the disguise of a stipulated return. If there lurks a real substitution in the condition of return, as expressed by the parties, its absolute nullity must be declared.

But if, on the contrary, while stipulating a return to himself, which he had a right to do, the donor has stipulated it in favor of another at the same time, and yet not as in terms importing essentially a substitution, the stipulation of return to himself may subsist, and that part only he declared null, which contravenes the prohibition of the Code. Such, according to our understanding, is the construction of the 12th

article of the ° Code, which pronounces the nullity of what has been done in contravention of a prohibitory law. The nullity cannot be extended; on the contrary, the special prohibition of a stitution extends the nullity to all the parties concerned, The single question, therefore, is: does this clause present ° 1 x necessarily a substitution? To ascertain the intention of the * parties, the whole instrument must be taken together. Among other things it was agreed that the donee sh be always at liberty to alienate the property with the consent of the donor.

How then can he be said to be bound to preserve it for his heirs? If the heirs had been designated to take in default of the donor, or perhaps if the disjunctive had been used, there would have been a second class of persons appointed to take ordine successive/ directly from the donee, and it might have amounted to a substitution. But unless a contrary construction involves an absurdity, we are bound to adopt it. When the expression “shall revert to and become the property of the said William C.

Withers, and his heirs,” is coupled with what follows, “ as if this donation had never been made,” we may well infer that the donor only intended to express the title in perpetuity, which would revert to himself and from him descend to his heirs.

If he intended that the property should first return to himself, then bis declaring that it should go to his heirs, would not be a charge on the donee to preserve for his heirs, because the very fact of its going to the heirs, is based on the condition that her title is divested before its return to him; and, therefore, such a declaration would amount to nothing more than a limitation of his own power to dispose of the property after its reversion to himself, which would be wholly nugatory.

The heirs in that case would take as such, and not as persons substituted to the original donee, and in virtue of this act of donation. Upon the whole, the court cannot discover jn this act the essential characteristic of a substitution. jp^netiia a0-TtTTtTiTnTif; and yet not id terms importing essentially a substitution, the stipuiution of return to himself may subsist, and that partially be declared null which subsist>and ,hat codeT'410" °f4h° It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.