Charlotte Brittain v. Robert W. Richardson, Curator, 3 Rob. 78

Morphy, J. The testimony does not, in our opinion, show a valuable consideration in the legal sense of the term. It discloses rather the motives which led the deceased to execute, in favor of the plaintiff, this note, which was clearly intended to cover a donation to her.

Admitting that the small sum, which was either lent or given in 1825 to the deceased, created sucha natural or moral obligation as could form a sufficient consideration for a note of an amount about equal, it is obvious that the enormous overplus for which he bound his estate was a donation which he wished to make in her favor in consideration of the kind treatment and frequent assistance he had received from her husband, at whose house he wras then sick, and impressed with the belief of his approaching dissolution.

We are confirmed in this conviction, from the circumstance that on the trial below the plaintiff was ruled to produce, and did produce in court a paper purporting to be the last will of the deceased which she had in her possession, and in which she was appointed his universal legatee: Some time before the institution of the present action, this paper had been sent by the plaintiff to the executor of her deceased husband, and presented to the probate judge, but being found altogether informal, it was not admitted to probate.

Considering the instrument sued on as one having for its object a disposition causa mortis, and as having, as such, none of the forms prescribed by law, it can have, in our opinion, no legal effect or validity, and no recovery can be had on it. Civ. Code, arts. 1453, 1455, 1563. 17 La. 144. But it is said that a donation, under the form of an onerous contract, is not void, and the case of Trahan v. McMannús et al., reported in 2 La. 215, is relied on.

Without inquiring how far the principle laid down in that decision can be supported under the provisions of the present Civil Code, which differ on this subject from those of the old Code, it is sufficient to say that the instrument sued on is under private signature, when our law requires that all donations inter vivos shall be passed before a notary and two witnesses. Civ. Code, arts. 1523, 1525. But we have already said that, under the evidence and circumstances of this case, we cannot view this note in any other light than as a donation mortis causa.

When donations mortis causa, or inter vivos, are clothed with all the forms required by law to give them validity, none but forced heirs can sue for their reduction, if they exceed the disposable portion; but it is otherwise, when they are null and void for the want of such formalities ; the legitimate heirs of the deceased or other representatives of the estate having, as well as the forced heirs, an action to have them annulled.

It is, therefore, ordered that the judgment of the Court of Probates be affirmed with costs ; reserving, however, to the plaintiff any claims she may have against the estate of the late Felix Matthes.