181 La. 895

#### GUIDRY et al. v. CAIRE et al.

No. 32820.

Supreme Court of Louisiana.

March 4, 1935.

Concurring Opinion March 7,1935.

Behearing Denied April 1,1935.

Clarence P. Eavret, of New Orleans, for appellants.

Porteous, Johnson & Humphrey, of New Orleans, for appellee.

FOUBNET, Justice.

This suit was instituted by the seven children of the late Philomon Guidry, Jr., who died on September 26, 1931, to reduce a donation inter vivos, which exceeded the disposable portion of his estate, the donation having been made to his father, Philomon Guidry, Sr., prior to deceased’s marriage.

Plaintiffs allege that their father died insolvent and that, therefore, the donated property is the sole item to be taken into consideration' in estimating their légitime, and that they are entitled to reduce the excessive donation and to be recognized and put in possession of an undivided two-thirds interest in the property, which is in the possession of Etienne Joseph Caire and Jean B. C. Grau-gnard. They further ask for an accounting of revenues and other relief.

Defendants filed an exception of no cause or right of action, which was sustained by the district court, and from that judgment the plaintiffs have appealed.

This suit is predicated upon a decision rendered by the Supreme Court in the case of Tessier v. Roussel, reported in 41 La. Ann. 474, 6 So. 542, 824, 825. The facts in that case, as recited by the court, are as follows:

> “The facts, which are undisputed, present the following case: '

> “In 1873 Philemon Guidry, Jr., made a gratuitous donation inter vivos of a tract of land to his father, Philemon Guidry, Sr.

> “In 1881 Guidry, Sr., being indebted to his two sons, Philemon, Jr., the donor, and Val-mont Guidry, gave them a special mortgage on the same land.

> “In 1883 Guidry, Jr., and others, holding the notes secured by this mortgage, judicially foreclosed the same, and caused the sale of the property.

> “At said sale the property was adjudicated to J. E. Poche for $18,000.

> “Subsequently Poche resold the property to P. Guidry, Jr., Valmont Guidry, and Joseph Guidry, jointly; the first two acquiring five-twelfths each, and the last, two-twelfths. The price was $20,000, of which $3,925 was in cash, and the remainder in notes secured by special mortgage and vendor’s privilege.

> “In 1887 Jean Tessier, as holder of the last-mentioned notes, foreclosed his mortgage, and at the judicial sale the property was adjudicated to him, and he is the present owner thereof.

> “Philemon Guidry, Sr., the original donee, is now dead, and left no estate.

> “Philemon Guidry, Jr., the donor, has married, and has five minor children. It is admitted that he is, at this time, insolvent.

> “In February, 1888, Jean Tessier and Octave Boussel entered into an agreement by which the former agreed to sell, and the latter to buy, the property in question at an agreed price.

> “On examining the title Boussel refused to execute the agreement, on the ground that he would be in danger of eviction by reason of the eventual claims of the presumptive forced heirs, the minor children of P. Guidry, Jr., for their reserve or forced portion, which would be entitled to satisfaction out of said property, at the death of their father, if he left no other estate adequate to settle their claim.

> *623“The present action is brought hy Tessier to compel Roussel to accept the title, and to perform his agreement to buy.”

The court, after fully discussing the question presented, finally said:

> “We have given this question most careful and serious consideration, and it has only served to strengthen and fortify the conclusions reached in our original opinion. In any view that can he taken of it, and whatever might be the conclusion we should reach on the trial of the rights of the heirs, we are thoroughly satisfied that it raises such doubt of the validity of the plaintiff’s title that we do not feel authorized to pronounce i t perfect and unquestionable, and compel the defendant to accept it.” '

It appears from the record that the defendants, Caire and Graugnard, present owners, purchased this property from the heirs of Jean Tessier, by notarial act passed before Charles J. Theard, notary public, on (he 11th day of May, 1898, and in the said act declared:

> “That they.are well aware that in the suit of Jean Tessier versus Octave Roussel, reported in the Louisiana Annual reports, volume 41. page 474, the Supreme Court declared that the title to the property now sold was not such as an unwilling purchaser could be compelled to accept, because of the possibility of an eventual claim by the forced heirs of Philomon Guidry, Jr. for their reserve, or forced, portion, which they might take out of said property at the death of their father, the said Philomon Guidry, Jr. if he left no estate adequate to settle their claim; — the Supreme Court, however, declining to express an opinion as to the merit of such possible eventual claim, when made if ever made.”

We have carefully and seriously considered the authorities submitted hy counsel for plaintiffs and defendants and find very few cases in which the question here involved was considered, and we find none where the question was actually determined.

Plaintiffs’ claim is based on the provisions of articles 1493, 1503, 1504, 1516, and 1517 of the Revised Civil Code:

> “1493. Donations inter vivos or mortis causa can not exceed two-thirds of the property of the disposer, if he leaves, at his decease, a legitimate child; one-half, if he leaves two children; and one-third, if he leaves three or a greater number:

> “Under the name of children are included descendants of whatever degree- they be, it being understood-that they-are only counted for the child they represent.”

> “1503. A donation inter vivos, exceeding the disposable quantum, retains all its effect during the life of the donor.”

> “1504. On the death of the donor or testator, the reduction of the donation, whether inter vivos or mortis causa, can be sued for only by forced heirs, or by their heirs or assigns ; neither the donees, legatees, nor creditors of the deceased can require that reduction nor avail themselves of it.”

> “1516. Immovable property, that is brought into the succession through the effect of reduction, is brought into it without any charge of debts or mortgages created hy the donee.”

> “1517. The action of reduction or revendi-cation may be brought by the heirs against third persons holding the immovable property, which has been alienated by the donee, in the same manner and order that it may be brought against the donee himself, but after discussion of the property of the donee.”

In the case of Tessier v. Roussel, supra, while the question involved was whether or not the title to the property tendered to Roussel. was a valid one, nevertheless all the points involved in the case at bar were seriously considered and well and ably analyzed.

In the case of Woolverton et al. v. Stevenson et al., 52 La. Ann. 1147, 27 So. 674, the court held, in the well-expressed terms of its syllabus, as follows:

> “To warrant the refusal by adjudicatees at a judicial sale to take title, they must show, not a remote and possible, but a substantial and threatening danger: The fact that one of the' former links of title was a donation, presents no such danger when it is not shown that the donor was at the time a married man, nor that he has since married and had children.”

In the body of the opinion, however, we find the following expression:

> “We do not think that donations made by a man prior to marriage are made subject to reduction at his death, as being beyond the disposable portion of his estate, by the fact that he should, after making the donation, have married and died, leaving issue of his marriage.”

- In the case of Grasser v. Blank, 110 La. 493, 34 So. 648, the court had for • consideration the question of whether or not the title •was one which the defendant could be compelled to accept; it appearing in the chain *624*at*title that there was an act claimed by the defendant to he a donation inter vivos subject to the possible reduction by the forced heirs of the donor, in the event of her marriage and the birth of children of that marriage. The court held that the act was one of revocation of a donation made to the daughter. But after so holding, we find the court going beyond the record and saying that even though the act had been a donation, it would not be subject to reduction because it was made before the marriage of the donor, citing Woolverton v. Stevenson, supra.

It is well to note that in reading the decisions above referred to, we find no law or jurisprudence cited in support of the proposition that a donation made by an unmarried person is not subject to reduction after his death by the forced heirs of a later marriage of the donor.

In the case of Griffith v. Alcocke, 113 La. 514, 37 So. 47, 51, the very question involved here was raised, and while the court decided the case adversely to the plaintiff on a different issue, the court affirmatively discarded the expressions in the Woolverton and the Grasser Oases, above referred to, from consideration by pronouncing all that had been said in those cases regarding this question as expressions obiter dicta. The court said:

“Reference is made in briefs of counsel to expressions used by this court in Woolverton v. Stevenson; 52 La. Ann. 1147, 27 So. 674, and Grasser v. Blank, 110 La. 493, 34 So. 648. *Counsel were correct in saying they were obiter Meta."*(Italics ours.)

We also find the following pertinent language of this court, at page 522 of 113 La. of its opinion in that case, 37 So. 50:

“The children of a person have an undoubted right to complain if their father disposes of his property to the prejudice of their legal rights by gratuitous dispositions in favor of parties having less claims upon him than they have, and, should he do so, they have an undoubted right after his death to assert their claims.”

We are of the opinion that this is in line with the specific provisions of Rev. Civ. Code, art. 1493, hereinabove recited, which was substantially copied from the French Code, where the language is as follows:

“Les libéralitiés, soit par acte entre-vifs, soit par testament, ne pourront exeéder la moitié des Mens, du disposant, s’il ne laisse d son décés qu’un enfant légitime; le tiers, s’il laisse deux enfants; le quart s’il en laisse trois ou un plus grand nombre.” Article 913.

This court had this to say on the subject in the case of Tessier v. Roussel, supra, see 41 La. Ann. page 478, 6 So. 542, 543, 824:

“Every donation, however and whenever made, is therefore subject to an implied res-olutory condition, binding on the parties thereto and their privies, to the effect that if, at the death of the donor, he shall leave forced heirs, and the donation shall prove to be in excess of the disposable portion as then ascertained, the donation will then be resolved to the extent of such excess.”

The commentators on the corresponding articles of the Code Napoleon unanimously agree on this point. Troplong, T. 2, No. 784; Coin-Delisle, on article 913; C. N.; Zacharise, Donats. Entre-Vifs, T. 1, P. 242; Guilhon, Donats, Entre-Vifs, T. 1, pp. 188, 288, 242.

Pothier, a recognized commentator or authority on the French Code, said:

> “Ill est certain que les donations, quoique faites avant la naissanee de l’enfant qui de-mande sa légitime, y sont subjeettes; le de-voir naturel nous oblige a conserver nos biens, non-seulement aux enfants qui nous avons déjd, mais encore a ceux qui nous pourrons avoir par la suite.” Donations En-tre-Vifs, § 3, art. Y, p. II.

Counsel for defendant, in a supplemental brief, contends that Philomon Guidry, Jr., donated his property to his only forced heir, his father, at the time the donation was made, and that his children, born of a subsequent marriage, cannot complain because they were not at the time of the donation his forced heirs. “They were not in esse and in posse.” And defendants’ counsel cite the cases of In re Louisiana Savings Bank, 48 La. Ann. 1428, 20 So. 909; Grasser v. Blank, 110 La. 493, 34 So. 648; and Woolverton v. Stevenson, 52 La. Ann. 1147, 27 So. 674.

The defendants can find no comfort in the expressions of the court in these cases for the reasons hereinabove assigned and, in our opinion, still less in their counsel’s proposition that the plaintiffs, as forced heirs of Philomon Guidry, Jr., were not “in esse or in posse” at the time the alleged donation was executed.

Definition of “posse” — “Possibility; chiefly in the phrase in posse. See below.”

Definition of “in posse” — “Capable of being ; in germ; said of what may possibly be, as opposed to what is in esse or actual being.” Standard Dictionary, Funk & Wagnall Co.

*625Definition of “in posse” — “In possibility; not in actual existence; used in contradistinction to in esse.” Bouv. Law Didt. (Rawle’s 3d Rev.) vol. 2, p. 1524.

Definition of “posse” — “Quality or state of being possible.” Webster’s New International Diet.

Definition of “possible” — “(Fr. latin:— potis; able, capable, & esse: to be) Capable of being, becoming, or coming to pass * 3⁄8 * Not contrary to the nature of things; neither necessitated nor precluded; free to happen or not * * * contrasted with necessary and impossible.” Webster’s New International Diet.

We cannot reconcile the expressions found in the decisions cited as authorities by counsel for the defendants with the positive and unambiguous language of the articles of the Revised Civil Code. These articles are to the effect that the disposable portion and the légitime are determined quoad the death of the donor and are fixed by the number of forced heirs he shall leave at his death. The articles of the Code, in dealihg with the subject of donations, reduction thereof, légitime, and disposable portion, make no exception for a donation by an unmarried person who subsequently marries and leaves children, as in the case at bar. Therefore, it appears that the lawmakers took cognizance of the duty and responsibility one owes to his unborn children even if they are mere possibilities.

This whole subject was fully and elaborately discussed and analyzed in the case of Tessier v. Roussel, supra, and the views therein expressed are in accord with our opinion on this question, i. e., that the donation is subject to reduction.

It is our opinion that the petition sets forth a right or cause of action. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be set aside and reversed, that the defendants’ exception be overruled, and that the suit be remanded for trial on the merits.

O’NIELL, C. J., concurs, in separate opinion.

ODOM and BRUNOT, JJ., dissent.

O’NIELL, Chief Justice

(concurring).

Besides the articles of the Revised Civil Code which are cited in the prevailing opinion in this case, articles 1505 and 1507 also make it very plain that, ' in determining whether a donation inter vivos exceeds the disposable portion of the estate of the donor, it is a matter of no importance whether the presumptive heir at the time when the donation was made was a prospective forced heir, or how many presumptive or prospective forced heirs there were when the donation was made, or whether the donor was married or unmarried when the donation was made. Article 1505 lays down the rule for calculating the disposable portion of an estate, thus: The value of the property disposed of by donation or donations inter vivos (taking the value at the time of the death of the donor but in the condition in which the property donated was at the time of- the donation) is.added “fictitiously” to the value of the property owned by the donor at the time of his death; and, from the total sum, the debts of the succession are deducted; and upon the remainder is computed the fraction which represents the disposable portion of the estate, according to the number of forced heirs and their relation to the deceased. Article 1507 states the order in which the donations are to be reduced, if they are subject to reduction, viz.: The testamentary dispositions are reduced first, if a reduction is to he made, and, if the amount of the reduction to be made exceeds the amount or value of the testamentary dispositions, the excess is deducted from the donations inter vivos, in the inverse order of their dates, commencing with the last, and going back, if necessary, to the first in date. These articles of the Code, therefore, show plainly that it is a matter of no importance, in determining whether a donation inter vivos exceeds the disposable portion of the estate of the donor, whether the presumptive heir at the time of the donation was a prospective forced heir, or how many presumptive or prospective forced heirs there were at the time of the donation, or whether the donor was married or unmarried at the time of the donation. No such factors enter into the calculation which is provided for in articles 1505 and 1507 of the Revised Civil Code. These articles were numbered, respectively, 1492 and 1494 in the Code as originally adopted, in 1825. The corresponding articles in the Code Civil Franeais are, respectively, articles 922 and 923 — article 922 being copied, substantially, in the French text of article 1492 in the Louisiana Code of 1825, and article 923 of the French Code being literally the same as the French text of article 1494 of the Code of 1825 — except that in the latter article the term “les donations pour cause de mort” was substituted for “les dispositions testamenta-ires.” Commenting on articles 922 and 923 of the French Code, Baudry-Lacantinerie, *626Traite de Droit Civil, vol. 1, § 896, p. 420, says:

> “On n’a pas davantage & considérer l’époque á laquelle la donation a pu §tre consentie.

> “Qu’elle ait *été*faite avant ou depuis la naissance du reservataire, avant ou depuis son adoption, s’il s’agit d’un enfant adoptif,' avant ou depuis sa reconnaissance, s’il s’agit d’un enfant naturel, elle doit, dans tous les cas, Stre fictivement réunie aux biens ex-tants.”

A literal translation of tbis comment is exactly in accord with the prevailing opinion which is being rendered in this ease, viz.:

We do not have to consider the time at which the donation is made.

Whether it has been made before or since the birth of the forced heir, or before or since his adoption if an adopted child is concerned, or before or since his acknowledgment if a natural child is concerned, they (the donations) must, in every case, be fictitiously added to the remaining property.