[Fluker v. Turner.]

stipulation made in their favor. They, however, seem never to have accepted or claimed the benefit of that stipulation; nor does it appear that the defendant did, in the course of nearly four years, ever attempt to make with them any settlement which would discharge the plaintiff from his obligation to pay to them, as their debtor, the sum specified in the promise of the former.

The question most difficult of solution in the cause is that created by the part of the answer which insists, that before any right of action accrues to the appellant, he ought to have required the appellee to comply with his promise, made in favor of the third persons; and that until such requisition on him he is not in delay, (mora.)

The promise being made in writing, and delivered to Fluker (probably out of the presence and not within the knowledge of Fletcher's representatives) for whose benefit it contained a stipulation, it is contended that until they have an opportunity afforded them of accepting or rejecting said stipulation, by being informed of its existence, the obligation to pay the plaintiff is dormant, and can only be awakened by a rejection of the benefit promised to the third persons.

We are, however, of opinion that the primary and substantial obligation is, to pay a debt acknowledged to be due to the appellant, and that the promise to settle with others is only a privilege granted to the promissor, as to the manner in which such payment might have been made. There is no expression in the instrument which seems to require that the defendant should have been quickened in his undertaking, to pay or settle with the representatives of Fletcher, by any request of the plaintiff to that effect. It is true the time within which he bound himself to make the settlement was left indefinite, but to give effect to the obligation, it ought to be limited to a reasonable time; and three and a half years were certainly abundant; which space elapsed between the period at which the note was made, and the inception of this suit.

The record is burthened with much irrelevant testimony, and as usual labors under many bills of exceptions, most of which we deem it unnecessary to examine, as the judge a quo seems to have admitted all the testimony offered on both sides, whether pertinent or impertinent; especially as the latter kind is such as could not possibly have had any influence on the decision of the cause. One only is thought worthy of notice, which relates to the competency of the witness M'Mikin; wherein we are of opinion that the district judge did not err.

The attempt of the defendant to discharge himself from the obligation to pay the plaintiff, by proof that the persons, with whom he agreed to settle, are indebted to him more than the amount which he promised to pay them, cannot legally succeed. If they had sued him on the promise made in their favor, a plea of compensation and proof of the debt pleaded, would have operated a discharge of his obligation to them, and consequently to the present plaintiff. But he cannot absolve himself from the obligation, arising out of his promise to the latter, by offering as a set-off debts which may be owing him

[Fluker v. Turner.]

from persons who are yet parties to the present action. To admit such a defence would be to decide on rights without hearing the parties really interested in them; and if allowed, could not avail the plaintiff, after being defeated in this suit, in one instituted against him by these third persons as his creditors. A settlement and payment, in terms of the note, to the representatives of Fletcher, is the only thing which ought to exonerate the defendant from payment to Fletcher. If such he has made, it should have been proved on the trial of the cause in the court below. If it has not been made, Fletcher's representatives are liable to him for the amount, if they be really his debtors; and the plaintiff still remains their debtor to the same extent that he was when the note in question was made. There is no proof of such settlement and payment on the record, and consequently we are of opinion that the defence has failed, and that the plaintiff has made out his case.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be avoided, annulled and reversed; and it is further ordered, adjudged and decreed, that the plaintiff and appellant do recover from the defendant and appellee 500 dollars, with legal interest from the judicial demand, and costs in both courts.

Destrehan v. Destrehan's Executors. IV, N. S. 557.

Grandchildren coming to the partition of their grandfather's estate, with uncles and aunts, are not obliged to collate an onerous obligation due by their father.

FIRST District.

MATHEWS, J., delivered the opinion of the court.

The questions submitted to the court, to be decided in the present case, arise out of proceedings relating to an adjustment and partition of the succession of the late Jean Noel Destrehan: some are of fact and others of law. To understand them, it is necessary to state the situation of the parties to this suit, and that of their ancestor, from whom they claim to inherit. The widow G. N. Destrehan claims, as tutrix of her minor children now living, and as heir to those who died since the death of their father and grandfather, a part of the succession of the latter,,which appears to have been administered, and was finally adjudged to his wife at the appraised value, as a

[Destrehan v. Destrehan's Executors.]

partner in the community, and who is since dead, leaving as heirs the same persons who succeeded as such to her husband's estate, with the exception of the present appellant, so far as she claims in her own right.

The evidence of the case shows, that G. N. Destrehan died before his father, leaving children, who were called to the inheritance of their grandfather, J. N. Destrehan, together with uncles and aunts, immediate descendants of the latter. The widow of G. N. Destrehan renounced the community of acquests and gains in her husband's estate, and, as tutrix of her minor children, accepted for them his succession, under the benefit of an inventory. The widow J. N. Destrehan, to whom had been adjudged the property which was held in common between her and her husband previous to his death, attempted to bequeath and distribute the amount of her husband's succession amongst his heirs, and for that purpose seems to have rendered her accounts to the judge of the court of probates: to these accounts opposition was made by the present appellant, which gives rise to the questions now before the court, the most important of which relates to the charges against the children of G. N. Destrehan, for advances made to the father during his lifetime, and which they are required to collate with the other heirs of their grandfather. The sums thus required to be collated, consist of several items: 1. A sum of 7000 dollars; 2. One of 9000 dollars; 3. A note executed by his son, G. N. Destrehan, to his father, for 58,564 dollars, payable on the first of April, 1826. The opposition extended also to other charges against the estate of her husband, by Mrs. Destrehan the elder, which, it was contended were properly chargeable to herself; but, as the correctness of the decision of the court below, in relation to these matters, is not introduced, we shall not notice them further than to express our concurrence, this far, in the judgment of the district court: that judgment is also correct in relation to the item of 7000 dollars, which does not appear to have been established by evidence. In relation to the 9000 dollars, we are also of opinion, that the decision of the district court is, in point of fact, as being proved by the oath of one credible witness, and corroborating circumstances, such as the will of the grandfather, and the evidence of advancements made by him to his daughters, &c.

The value of the slave, which was estimated at 1000 dollars, and died before the opening of the succession of J. N. Destrehan, was properly deducted as having perished for said succession; but the judgment of the district court having ordered the balance of this item, viz. 8000 dollars, together with a part of the amount of the note of 58,564 dollars, to be collated, the present appeal was taken by the opponents: and, it is now contended on their part, 1. That they are not legally bound to collate any thing advanced to their father; 2. That if they are compellable by law to collate, no part of the amount of the note of their father to the grandfather, ought to enter into such collation.

[Destrehan v. Destrehan's Executors.]

In support of the first position assumed by the counsel of the appellants he relies principally on the doctrine of the Spanish law, as laid down by Febrero, part 2, book 2, chap. 3, nos. 26 to 29. Admitting, that grandchildren who succeeded to the inheritance of their grandfather, conjointly with descendants in the first degree, and who had renounced the inheritance of their father on account of its being worth little or nothing, in consequence of waste and bad management by him, were not bound by the former laws of this country to collate advancements made to their father: we are decidedly of opinion, that this rule of inheritance has been changed by the introduction of the Civil Code. Without undertaking completely to reconcile the apparent discrepancy between the 19th article of page 148, and articles 27 and 28 in page 150 of the Code, it might be observed, that the first relates to the general doctrine on the subject of degrees of kindred and representation amongst relations in the decending line; whilst the two last are specific in their enactments, and lay down rules clear and special with regard to the manner in which descendants must succeed to the estates of their ascendants. Allowing that they are at variance, the latter may be considered as exceptions to the former: according to the rules of inheritance expressly declared in these last articles, grandchildren who partake of a succession together with children, come in by representation of their fathers and mothers, and take sure steps, &c.: if grandchildren come in by right of representation, they are bound to collate what had been given to their fathers or mothers, although they may have renounced their inheritances. Civil Code, p. 194, art. 203.

From this view of the subject, it appears to us, that a doubt cannot be reasonably entertained as to the liability of grandchildren to collate property received by their immediate parents as advancements made by their ascendants in the first degree.

The appellants in the present case, must be considered as inheriting from their grandfather by representation, and are therefore bound to bring back to the mass of his succession whatever sums of money or other property may have been advanced to their father during his lifetime, as donations to further his interest, and comfort in life, &c.: of this class of beneficent advances, is the sum of 8000 dollars, proved as above stated; but, as it relates to the item of 58,564 dollars, the amount of the note executed as before represented, this court has doubted much the propriety of the judgment of the court below, and finally come to the conclusion, that it is not supportable on legal principles. The decision of this question, the most difficult and important in the cause, depends on a just interpretation of the 205th and 206th articles of the Code, found at pages 195 and 196, which are expressed in the words following: "The advantages which a father bestows on his son, though in any other manner than by donation or legacy, are subject to collation.' "Thus when a father has sold a thing to his son at a very low price, or has paid for him the price of some purchase, or has spent money to improve his son's

[Destrehan v. Destrehan's Executors.]

estate, all that is subject to collation." Art. 206. "The acts, however, of ascendants, which are beneficial to the descendants, are not all liable to collation. Those acts, by which the ascendant causes some part of his property to pass into the hands of his descendants by concealed and indirect means, are only liable to it: thus, there is no collation due, where a partnership was bona fide entered into between the ascendant and one of his lawful descendants, when the conditions of such partnership are duly proved."

"The same rule applies to all burthensome obligations, and to all mercantile transactions which the son executes with the father; none of which give place to collation, unless there has been on the part of the father an express or tacit intention of bestowing an advantage on his son; and thus, by that means, some part of the patrimony of one child is taken to increase the patrimony of the other." Before entering into any discussion on these articles, it may not be improper to remark, that the whole doctrine of collation is based principally on the equality which the law requires in the distribution of successions amongst coheirs.

The main foundation of the charge against the estate of G. N. Destrehan, in favor of that of his father, amounting to the large sum of 58,564 dollars, as evidenced by the promissory note of the former, seems, from the evidence of the case, to have been payments made by the latter, of the price of a plantation bought by his son. Had the affair been left in its original situation, the amount thus paid, would most clearly have been embraced by the provisions of the 205th article of the Code, as cited. But it does appear from an investigation of the whole transaction, that interest was added on interest, item to item, until the original sum was more than doubled; giving to the matter the appearance of a contract, completely onerous on the part of the obligor; and which certainly bears no intrinsic evidence of an intention on the part of the father of bestowing an advantage on his son, to increase his patrimony at the expense of that of his other children. It appears, from some evidence on the record, that Mr. Destrehan the elder, was in the habit of exacting ten per cent. per annum interest, on the sums by him advanced to his children, for the benefit of the younger members of his family, or those who remained under his paternal care and direction; and this mode of conduct is said to be sanctioned by reason and justice, and recognised as legal by principles found in the Roman law. If a parent gives to his child, who is about to take upon himself the management of his own affairs; in other words, who is about to commence the arduous task of providing for his own wants and those of a family, should he be thus connected in life, no more of his estate than a proportion equal to those retained for children who remain with him, it is difficult to discover any justice in burthening the child advanced with a heavy interest on the capital given. Ten per cent., per annum, we believe to be the full value of any capital used in the ordinary course of business. Is it then a donation to advance money at