____________________________ PART II: SUCCESSIONS ____________________________
D
Distribution of the estate
*
Introduction
1
Collation
________
3 Victor Marcadé, EXPLICATION DU CODE CIVIL
n 315, at 226 et seq. (7th ed., 1873; Carlos Lazarus tr. 1970)
o
Collation, in matters of succession, is understood to mean the return which the
heirs must make to the mass to be partitioned of the donations made to them by the
deceased. The purpose of this return is to maintain equality among the different
successors of the de cujus.
Collation to a succession originated in the Roman Law. This collation, collatio
bonorum, which as originally instituted was limited by the praetor in its application
and was intended to apply only to particular situations, was gradually extended by the
jurisprudence and by the imperial constitutions until the time of Justinian, when he
made it generally obligatory on all the heirs of a deceased in the descending line.
Ascendants or collaterals were never subject to collation. However, the obligation of
descendants to collate ended when they renounced the inheritance or when the
deceased had expressly or tacitly dispensed them from collating (Dig. liv. 37, t. 6;
Cod., liv. 6, t. 20).
In the old French law, the various customs on this subject can be classified into
three distinct groups: Under the first, collation could be dispensed or excused by the
donor; under the second, which was the largest, dispensation from collation was
invalid and collation could only be avoided by renouncing the succession; and lastly,
under the third group, it was absolutely impossible to escape the obligation to collate,
even by renouncing the succession. As in the Roman law, however, the obligation to
collate was imposed only upon the descendants of the de-cujus (Pothier, Success., ch.
4, Art. 2, § 1). . . .
________
2 C.-B.-M. Toullier, LE DROIT CIVIL FRANCAIS
n 452, at 283 (Duvergier rev., 6th ed. 1846; Carlos Lazarus tr. 1970)
o
452. The object of collation is to maintain among the heirs the natural equality
that would be destroyed if one of the heirs could retain the donations or claim the
legacies made to him by the deceased.
It is thus an equitable principle, that every heir, direct, collateral, or beneficiary,
coming to a succession must collate to his coheirs, that is to say, must return to, or
leave in the mass to be partitioned, everything he has received from the deceased by
donation inter vivos or mortis causa, directly or indirectly. Art. 843.
________
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10 Charles Aubry et Charles Rau, DROIT CIVIL FRANÇAIS §§ 627, 628
(Paul Esmein rev., 6th ed., 1954)
in 3 CIVIL LAW TRANSLATIONS 263 et seq. (Carlos E. Lazarus tr. 1969)
§ 627. Concept of Collation
In its proper acceptation, the term collation signifies only the return to the
hereditary mass of the things that the deceased has disposed of inter vivos in favor of
his heirs ab-intestato, to be reunited therewith. The Civil Code provisions which
preclude the latter from claiming the legacies made to them by the deceased, do not
constitute collation properly speaking because, different from things given inter vivos,
the things bequeathed are retained in the succession where they are found at the time
of the death of the deceased, rather than returned thereto. This difference between
donations and legacies did not escape the redactors of the Code. Nevertheless, after
having made and noted it in Arts. 843 and 845 [Cf. R.C.C. Arts. 1228, 1237], they did
not deem it necessary to conform thereto when drafting the subsequent articles.
Sacrificing exactness of terminology for brevity of language, they applied the word
collation indifferently to the prohibition imposed on the heir-legatee from claiming the
things bequeathed to him, as well as to the obligation imposed on the heir-donee to
return the things given to him.
Thus, in the broad sense attributed to this expression by the Civil Code collation
means both, the return to the hereditary mass of donations inter vivos, and the retention
in this mass of the legacies which the deceased had made in favor of one or more of
his heirs ab intestato, the purpose of such return and retention being to include the
objects given or bequeathed in the partition to be made among all the coheirs in
conformity with the rules established in matters of legal succession.
As a general rule, after the law of March 24, 1898, the obligation to collate no
longer exists with regard to legacies, and even when the testator has expressed a
contrary intention, the legatee may demand the delivery of his legacy in kind, subject
to collation to the succession by taking less.
However, the testator may order collation, and his will in this respect need not be
express provided that it is indicated unequivocally from the tenor of the act and from
the circumstances. ***
§ 628. General Principles
The Civil Code gives the donor and the testator absolute liberty of dispensing the
donee from the obligation to collate to his own succession, or of imposing on the
legatee the obligation to collate it. Art. 843.
But in the absence of a manifestation of a contrary intent, the law presumes that
the author of an inter vivos disposition not accompanied nor followed by a
dispensation from collation, did not intend that the donee should retain his donation
and at the same time claim a hereditary portion in his intestate succession. The
obligation to collate thus rests on the legally presumed intention of the disposer; and
the general principle that dominates the whole subject of collation is the following:
Every disposition inter vivos, where the person to whom it was made comes to
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the legal succession of the disposer, must be considered, as regards the obligation to
collate, as a simple advance on the hereditary portion of such person, except where the
disposition was made with dispensation from collation. In all other cases, the donee
may keep the donation given to him only if he renounces the intestate succession of the
disposer. Arts. 843 and 845.
Prior to the law of March 24, 1898, the propositions above stated applied to
legacies. Under Art. 843 as amended, legacies are reputed made with dispensation
from collation, except that the testator may express a contrary intent if he so desires.
From which it follows that the obligation to collate imposed by the testator on the
legatee, rests on the intention of the former. . . .
________
a
Definition (CC art. 1227)
1)
"Supposed or real return"
a)
Real return
b)
Supposed return (CC arts. 1251 & 1253)
2)
"Mass of the succession"
3)
"Heir"
a)
Domain of collation
Does the use of "heir" here suggest, perhaps implicitly, that collation has to do only with testate
successions? Why or why not? See CC arts. 876 & 976.
b)
Scope of "heir"
Is it any and every heir or, better yet, successor who must collate, or only some? Explain. See CC art.
1228.
4)
5)
b
"In advance of his share or otherwise"
a)
In advance of his share
b)
Otherwise
"Divided together with the other effects"
Rationale
1)
Exposition of theories
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2)
c
a)
Theory no. 1: moral principle of "equality" of treatment of children (CC
art. 1229, cl. 1)
b)
Theory no. 2: "presumption that what was given or bequeathed to
children [or descendants] by their ascendants so disposed of in advance
of what they might one day expect from their succession" (CC art. 1229,
cl. 2)
Relationship between the theories
Scope
1)
As to subjects (persons)
a)
Passive subjects (obligors): who owes the duty to collate
*
Two cumulative requirements:
1]
Certain descendants (CC art. 1228)
a]
General rule: all descendants
b]
Exceptions:
1}
Descendant who renounces succession (CC art. 1237)
a}
Principle
b}
Limitation
SH 50. Imagine a woman, M, who has two children, A and B. During M's lifetime, she gives numerous
gifts to A, worth a total of $100,000, and nothing to B. At her death, M, though debtless, is also penniless.
A and B are then 19 years old. A renounces M's succession. Is she then free of the duty to collate? Why or
why not? See CC art. 1237, ¶ 2.
2}
3}
2]
Descendants beyond the first rank (CC art. 1238.A)
Disinherited descendants (?)
Who have been personally and directly gratified by the deceased.
a]
General rule
1}
Exposition (CC art. 1238.A)
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____________________________ PART II: SUCCESSIONS ____________________________
2}
Illustrations:
SH 51.1. GP has two children, F and U. F, in turn, has one child, A, while U, in turn, has one child, B.
GP gives A a farm worth $100,000. A dies, survived only by F, who inherits the farm. GP then dies. Will F
have to collate the farm in connection within GP's succession? Why or why not? See CC arts. 1238.A &
1239.B.
SH 51.2. GP has two children, F and U. F, in turn, has one child, A, while U, in turn, has one child, B.
GP gives F a farm worth $100,000. U dies, survived only by B. Then GP dies. Shortly thereafter, F
renounces GP’s succession. And then F dies, at which point A inherits the farm. Will A have to collate the
farm in connection with GP's succession? Why or why not? See CC art. 1240.
b]
Exceptions
1}
Grandchildren who receive gifts directly from the
deceased grandparent during the life of the parent
a}
Exposition (CC art. 1239.A)
b}
Illustration
SH 52. GP has two children, F and U. F, in turn, has one child, A, while U, in turn, has one child, B. GP
gives A a farm worth $100,000. F dies, survived only by A; U dies, survived only by B. GP gives B a car
worth $10,000. Then GP dies. (i) Will A have to collate the farm in connection with GP's succession? See
CC art. 1239.A. (ii) Will B have to collate the car in connection with GP's succession? Why or why not?
2}
Grandchildren who represent their parents in the
succession of the deceased grandparent
a}
Exposition (CC art. 1240)
b}
Illustration
SH 53. GP has two children, F and U. F, in turn, has one child, A, while U, in turn, has one child, B. GP
gives F a farm worth $100,000. F dies, survived only by A, who inherits the farm. GP gives U a car worth
$10,000. Then GP dies. After that, U is declared unworthy. (i) Will A have to collate the farm in
connection with GP's succession? Why or why not? See CC art. 1240. (ii) Will B have to collate the car in
connection with GP's succession? Why or why not?
SH 50-53 summa. GP has two children, F and U. F, in turn, has one child, A, while U, in turn, has one
child, B. GP gives F a farm worth $100,000 and, while F is still alive, gives A a car. F dies, survived only by
A, who inherits the farm. Not long thereafter, GP gives A a boat. Then GP dies. Which of the following
things, if any, will A have to collate in connection with GP’s succession: (i) the farm, (ii) the car, (iii) the
boat? Why?
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____________________________ PART II: SUCCESSIONS ____________________________
b)
Active subjects (obligees): who has the right to demand collation
1]
Descendants
2]
Forced heirs
a]
3]
Definition (CC art. 1493.A)
1}
Young
2}
Disabled
1st degree
What is the significance, if any, of the words “of the first degree” as used in CC art. 1235? Given that
a “forced heir” is, by definition, a “descendant[ ] of the first degree,” see CC art. 1493(A), is the phrase just
redundant? What possible utility might the phrase have? May its point be to limit the right to demand
collation to those who are forced heirs in their own right (i.e., ”young” and / or “permanently disabled”
first degree descendants), thereby excluding those who, though not forced heirs in their own right, can
nonetheless assert forced heirship rights via representation (i.e., “young” or “permanently disabled” second
degree descendants)? Review CC arts. 1493(B) & (C).
SH 54.
GGF
|
GM*
____________|____________
|
|
|
|
A (21)
B(25,a) C(26,p) Dp (20)
|
|
X(2,r)
Y(1)
After watching her 20-year old daughter, D, die in a freak accident, GM suffers a heart attack and dies.
GM is survived by her father, GGF; her brother, GU; her other children, A (aged 21 and in good physical
and mental health), B (aged 25 and profoundly autistic), and C (aged 26 and in good physical and mental
health); a grandchild by C, X (aged 2 and profoundly mentally retarded); and a grandchild by D, Y (aged
1). On the way to GM's funeral, C is involved in a car accident that leaves him a paraplegic. Of GM's
survivors, which can and which can’t demand collation? Why?
2)
As to objects (gratuities)
a)
Objects included
1]
Donations inter vivos (CC art. 1468)
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____________________________ PART II: SUCCESSIONS ____________________________
a]
Evident donations
b]
Disguised donations
1}
Definition (CC art. 2444, 2025, 2027)
2}
Subjection to collation
Are disguised donations subject to collation? Why or why not? See the jurisprudence that follows:
________
Montgomery v. Chaney,
13 La. Ann. 207 (1858)
SPOFFORD, J.
This suit was brought by some of the forced heirs of Elizabeth Chaney, deceased,
against Jackson M. Chaney, one of their co-heirs, to set aside a pretended sale of
certain slaves from their deceased ancestor, Mrs. Chaney, to her son, the said Jackson
M. Chaney, upon the allegations that no price was paid by the pretended purchaser, but
that the sale was simulated and fraudulent, the same being really a disguised donation
obtained by undue influence on the part of the pretended purchaser. The prayer of the
petition is that the sale be declared void, and that the property purporting to have been
conveyed by it to be decreed to be the property of the succession of Elizabeth Chaney,
deceased and as such partitioned pro rata among her heirs.
There was a verdict and judgment for the defendant, and the plaintiffs appeal,
relying upon various bills of exceptions reserved by them to the rulings of the District
Judge in rejecting evidence and in charging the jury.
Equality between heirs of the same degree is the cardinal principle of the
Louisiana law of the inheritance. No deviation is allowed from this rule save within a
narrow limit and by pursuing the forms prescribed by law. If a father desires to prefer
one child to another in the distribution of his property, he is bound to state his design
expressly, by declaring that the gift or legacy is intended "as an advantage or extra
portion" or "using other equivalent terms." C.C. 1311. [R.C.C. Art. 1233.]
"The sales of immovables property or slaves, made by parents to their children
may be attacked by the forced heirs, as containing a donation in disguise, if the latter
can prove that no price has been paid, or that the price was below one fourth of the real
value of the immovables or slaves or slaves sold, at the time of the sale." C.C. 2419.
[R.C.C. Art. 2444.]
The foregoing article is a legislative recognition of the right to institute such
actions as the present. And even where there is a price actually paid exceeding onefourth of the value of the property sold, but much below its fair value, and an
advantage is thus indirectly sought to be given to one heir over others, the law searches
it out and compels the heirs to stand upon an equal footing.
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____________________________ PART II: SUCCESSIONS ____________________________
"The advantage which a father bestows on his son, though in any other manner
than by donation, or legacy, is likewise subject to collation. Thus when a father has
sold a thing to his son for a very low price, or has paid for him the price of some
purchase, or has spent money to improve his son's estate, all that is subject to
collation." C.C. 1326. [R.C.C. Art. 1248.]
The present action was, therefore, well brought, and the fact, if fact it be, that the
property conveyed to the defendant by his mother did not exceed the disposable
portion forms no bar to the plaintiffs' demand . . . .
The true questions are: was the sale in question a real sale, and was a fair price at
the time actually paid?
If these questions, or either of them, are answered in the negative, collation is due
by the pretended vendee, or the property comes into the mass, to be distributed
according to the rules laid down in the Code upon the subject of partition . . . .
The instructions of the judge to the jury were not in accordance with these views,
and the bill of exceptions to his charge was well taken.
________
2]
Various other gratuities
a]
Certain expenditures (CC art. 1243)
1} For "establishments"
SH 55.1. Upon Ti-Boy’s graduation from law school, Pascal buys him a building in which to situate
his office, buys furniture for the office, and gives him several thousand dollars to cover his other “start-up
expenses.” Pascal then dies, survived by Ti-Boy and Lil-Fille, Pascal’s 18 year-old daughter. Does LilFille have any collation rights vis-à-vis Ti-Boy? Explain.
2}
For payment of debts
SH 55.2. When Olide learns that his son, Mauvais, who has defaulted on several substantial loans, is
about to declare bankruptcy, he steps in and pays off Mauvais’ creditors, to the tune of $250,000. Olide
then dies, survived by Mauvais and Torte, Olide’s 18 year-old daughter. Does Torte have any collation
rights vis-à-vis Ti-Boy? Explain.
b]
Other advantages (CC art. 1248)
1}
Sale of property at discount (“very low”) price
SH 56.1. For the price of $50,000, Pascal sells his son, Ti-Boy, a yacht worth $150,000. Pascal then
dies, survived by Ti-Boy and Lil-Fille, Pascal’s 18 year-old daughter. Lil-Fille now wonders whether she
might have any collation rights vis-à-vis Ti-Boy with respect to the yacht. Can this “sale” be treated as a
disguised donation (relative simulation), so that it would be susceptible to collation just like any other
donation? Why or why not? See CC art. 2444. If not, is there perhaps some other basis on which Lil-Fille
might demand collation? Explain. See the jurisprudence that follows:
________
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____________________________ PART II: SUCCESSIONS ____________________________
Taylor v. Brown,
223 La. 641, 66 So.2d 578 (1953)
McCALEB, Justice.
Esther Warren Taylor, one of the surviving daughters of Louis Warren, . . . who
died intestate on November 27, 1945, brought this suit to annul the sale by her father,
on April 10, 1945, of a parcel of real estate . . . to another daughter, Thelma Warren
Brown, for a stated consideration of $915.69. The conveyance is assailed mainly on
the ground that it was, in reality, a donation in disguise violative of Article 2444 of the
LSA-Civil Code in that the price paid by Thelma Brown was less than one-fourth of
the value of the property at the time of the sale . . . . Alternatively, it is pleaded that, in
the event it is found that the purported sale is valid, then collation of the advantage
received by Thelma Brown should be ordered under Article 1248 of the LSA-Civil
Code inasmuch as the sale was made to her for a very low price.
...
After a trial on the merits of the case, the district judge dismissed plaintiff's suit.
He was of the opinion that the property was not worth over $2,500 at the time of the
sale and that, consequently, the conveyance was not a disguised donation as the price
was not below one-fourth of its then value. This conclusion was reached after
considering the evidence of four real estate experts of Baton Rouge who gave
estimates, ranging from $1,600 to $3,500, respecting the value of the property at the
time of the transfer.
...
It will be seen from the foregoing statement that the initial question for
disposition is whether the consideration for the sale was less than one-fourth of the
value of the property at the time of the conveyance--for, as we have stated, the primary
attack upon the transfer is that it is violative of Article 2444 of the LSA-Civil Code,
which reads:
“The sales of immovable property made by parents to their children, may be
attacked by the forced heirs, as containing a donation in disguise, if the latter
can prove that no price has been paid, or that the price was below onefourth of the real value of the immovable sold, at the time of the sale.”
A careful perusal of the record has convinced us that the judge was . . . correct
when he concluded that the sale was not a disguised donation inasmuch as the price
given was in excess of one-fourth of the value of the property. . . .
...
Considering the opinions of all of the experts, . . . we think they have disproved
the charges in the petition that the price paid for the property was less than one-fourth
of its value at the time of the sale.
Disposal of the foregoing leaves for consideration the alternative contention of
plaintiff and intervenor that, since the price paid by Thelma Brown was very low in
comparison to the real value of the property, the advantage bestowed upon her by her
father is subject to collation. Article 1248 of the LSA- Civil Code is authority for this
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____________________________ PART II: SUCCESSIONS ____________________________
proposition. It provides that when a parent has sold a thing to his child at a very low
price the advantage given to the child is subject to collation and the cases of
Montgomery v. Chaney, 13 La.Ann. 207; Gonsoulin v. Gonsoulin, 132 La. 737, 61 So.
774; Succession of Lamotte, 110 La. 42, 34 So. 122 and Champagne v. Champagne,
125 La. 408, 51 So. 440, support the proposition that a price less than 60% of the value
of the thing is a very low price within the meaning of the Article.
...
Article 1227 defines collation as “the supposed or real return to the mass of the
succession which an heir makes of property which he received in advance of his share
or otherwise, in order that such property may be divided together with the other effects
of the succession.” Here, it is the advantage that must be collated and it is to be
returned to the succession of the donor. . . .
[The court went on to conclude that Esther was not, in fact, in a position to
demand collation from Thelma under CC art. 1248, at least “not yet.” The court’s
rationale, however, had nothing do with the “merits” of Esther’s demand, but rather
with its “procedural posture”: according to the court, Esther’s demand (though wellgrounded in substance) was “premature,” for collation can be demanded only in
conjunction with a partition and, as of the date of the court’s decision, neither Esther
nor Thelma nor any other successor had yet demanded a partition. The court’s
discussion presupposes, however, that if one of the successor’s were to demand a
partition, Esther would have a viable collation claim.]
________
NOTE
In some (but certainly not all!) cases in which a successor may be able to demand
collation with respect to the “surplus value” of a sale made at a “very low” price, the
successor may also be able to demand that the sale be rescinded on account of
“lesion.” When would that be? When (i) the object of the sale was immovable, (ii) the
price paid was less than ½ (50%) of the immovable’s fair market value, and (iii) the
successor is in a position (due to the timing of the sale and the timing of the death of
the de cujus-seller) to make the demand for rescission within one year of the date of
the sale. See CC arts. 2589,1 2595, & 2600. In such a case, the successor could
demand either remedy, whichever suits his fancy.
________
2}
Payment of price
SH 56.2. Pascal takes his son, Ti-Boy, down to the Chevrolet dealership to get him a pick-up.
Though the act of sale indicates that Ti-Boy, not Pascal, is the buyer, Pascal pays the purchase price.
According to this article, lesion may be claimed “only by the seller.” This expression is potentially misleading.
All it means is that the buyer can’t claim lesion; it does not mean that the seller’s successors can’t claim lesion. See
CC art. 2600 (authorizing “each successor” of the seller to “bring an action for lesion individually for that share of
the immovable corresponding to his right”).
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____________________________ PART II: SUCCESSIONS ____________________________
Pascal then dies, survived by Ti-Boy and Lil-Fille, Pascal’s 18 year-old daughter. Does Lil-Fille have any
collation rights vis-à-vis Ti-Boy? Explain.
3}
Expenditures to improve property
SH 56.3. Out of affection for his son, Ti-Boy, Pascal hires Lecompte Landscapers to landscape TiBoy’s yard. Pascal then dies, survived by Ti-Boy and Lil-Fille, Pascal’s 18 year-old daughter. Does LilFille have any collation rights vis-à-vis Ti-Boy? Explain.
4}
Donated use
SH 56.4. Above his garage is an apartment that Pascal occasionally rents out for $500 per month.
When Pascal’s son, Ti-Boy, falls on hard economic times, Pascal allows him to live in the apartment rentfree for several months. Pascal then dies, survived by Ti-Boy and Lil-Fille, Pascal’s 18 year-old daughter.
Does Lil-Fille have any collation rights vis-à-vis Ti-Boy? Explain. See the jurisprudence that follows:
________
Succession of Pierson,
339 So.2d 1337 (La. App. 3d Cir. 1976)
PAVY, J.
Mrs. Martha Louise Hunter Pierson, widow of Dr. Clarence Pierson, Sr., died in
February, 1971, leaving as her heirs at law two sons, Hunter Pierson and David
Pierson, a daughter, Mrs. Louise Pierson Marshall, and a granddaughter, Mrs. Diane
Pierson Whaley, the child of Clarence Pierson, Jr., a predeceased son. She left a will
bequeathing the disposable portion of her estate to Hunter Pierson and additionally
leaving minor or sentimental items to several parties. The will was duly probated . . . .
Mrs. Whaley and Mrs. Marshall each filed petitions against both David Pierson and
Hunter Pierson in the estate proceedings to compel . . . collation of numerous
donations including those contained in the will. . . .
...
Claims for collation against both Hunter and David were made for the rental
value of the properties (the garage apartment and the Marye Street residence) occupied
by them for a number of years. Additionally, a collation claim was made against
David for board for the same period. We think the evidence preponderates that David
and his mother shared board expenses and that claim will be disallowed. The trial
judge rejected the claims for rental values as a matter of law. His reasoning was that
the value of occupancy was equivalent to the revenue that would have been derived
from the properties and that revenue, as distinguished from capital, is not collatable as
it would have been used by the decedent anyway and hence there was no depletion of
his estate. He further stated that if the properties had been donated, the donees would
not have had to collate the revenue (rental) of these items.
Louisiana Civil Code Arts. 1243 through 1248 deal with what things are subject
to collation. Art. 1243 specifies those types of benefits subject to collation. Arts. 1244
through 1247 deal with various types of benefits to an heir which are not subject to
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____________________________ PART II: SUCCESSIONS ____________________________
collation. Art. 1248 is a sort of catchall provision mandating collation generally. Arts.
851 through 856 of the Code Napoleon deal with what matters are collatable and
contain substantially the same language as Arts. 1243 through 1247 except that there is
no counterpart to Civil Code Art. 1248 in the Code Napoleon and there is contained in
the Code Napoleon an article (856) which provides that the revenue of the thing
subject to collation is not due until the opening of the succession. From this codal
scheme, the Louisiana Jurisprudence has approached the question of what is collatable
by starting with the general rule that collation is due for any benefit or advantage and
that any exemption or dispensation from it is the exception.
This approach was used in the scholarly opinion in Succession of Gomez, supra.
That case dealt with manual gifts of money. Although it dealt with the manner in
which the benefit or advantage was conferred and not with the nature of the benefit
conferred, we think the Gomez rationale is pertinent here.
The court stated:
"Finally, then, the law contemplates a perfect equality among heirs and
presumes that the ascendant intends equality among his heirs. Our rules of
collation have come into existence to maintain and effectuate this equality,
and they permit collation to be dispensed with only when the intention of the
ascendant to dispense has been manifested expressly and in the manner
provided by law. Benoit v. Benoit's Heirs, 8 La. 228; Grandchamps v.
Delpeuch, 7 Rob. 429; Berthelot v. Fitch, 44 La. Ann. 503, 10 So. 867; King
v. King, 107 La. 437, 31 So. 894; Champagne v. Champagne, 125 La. 408,
51 So. 440; Jung v. Stewart, 190 La. 91, 181 So. 867. The law exempts,
however, in Arts. 1244 and 1245 of the Code of 1870 certain things from
collation. By virtue of this legal exemption an express intention on the part
of the donor to dispense with collation of these things is not required.
Because this legal exemption may operate to destroy the equality among the
heirs, nothing should be exempt from collation unless it falls squarely within
the provisions of these articles. (Emphasis herein.)
...
We have concluded, therefore, that it was never the intention and
purpose of the redactors of the Code of 1825 to make a drastic change from
the provisions of the 1808 Code relating to exemptions or, for that matter, a
radical departure from our fundamental concept of collation. Any other
conclusion would be inconsistent with the emphasis on equality in the
general provisions relating to the nature of collation and the strict rules for
maintaining that equality. Legal exemptions from collation have always
been based on the soundest grounds - the things exempt were by their nature
not really advancements because they were obligations of the parent, or they
were things given under such circumstances as to overcome the presumption
that they were advancements."
Determinative here are the court's two observations: (1) That only exemptions
squarely within the terms of the pertinent articles are to be recognized and (2) that
those exemptions either pertain to obligations of the decedent to the child or result
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from benefits conferred under circumstances naturally indicative of an intent to confer
an advantage or extra portion.
We realize that, as pointed out by the learned trial judge, respectable authority
among the French commentators holds that a gift of revenues is not collatable. This
view of the learned French scholars is based on Code Napoleon Art. 856 which
provides that revenues from a collatable item are only due from the opening of the
succession. But our code does not contain any counterpart to Code Napoleon Art. 856
in the section dealing with collation. In Cross On Successions, at page 523, is found
the following observation:
"C.N. 856 provides that `the fruits and interest of the things subject to
collation are due only from the day of the opening of the succession.' This
rule is the consequence of the principle, that the property donated as an
advancement d'hoirie is supposed to be immediately reunited to the
succession at the death of the deceased. The object of its insertion in that
Code seems, however, to be, to protect the donee from a claim for the
revenues accruing before the opening of the succession. `We have already
seen, under Art. 852,' [La. C.C. Art. 1244] says Marcade (III, 343) `that the
gift of simple revenues not encroaching on the capital are not subject to
collation. The law considers that the deceased would have spent it some
other way, and in living with less economy the periodical revenues with
which he has gratified his successible would have been used, and that
consequently the donation has not diminished the quantity of property he has
left. This principle has been recognized in our article. When the deceased
has given a farm, a house, or other property, the heir should collate this
property, but not the revenues which he has derived from it; the property is,
in fact, a capital, the absence of which would diminish the patrimony; but its
fruits on the contrary are only revenues that the deceased would probably
have spent otherwise.' This article has not been reproduced in our Code, and
it is held in LeBlanc v. Bertant (16 A. 298) that, where it is presumed from
circumstances that the mother intended to make a remission of interest to her
sons on a loan of money to them, the interest remitted should be considered
an advance on their portion of the succession and should be collated."
However, the contention of Cross was not accepted as law. In Clark v. Hedden,
33 So. 116, 109 La. 147 (1902) the Supreme Court held that collation is not due for
revenues of property, the full ownership of which had been donated. The court relied
on Civil Code Art. 1515 which by its terms applies only to revenues from donated
property subject to reduction. No mention was made of the limited applicability of
that article nor of the fact that Code Napoleon Art. 856 which exempted from collation
revenues of collatable items was in the 1808 code but omitted from the 1825 and 1870
codes. While the rule in Clark may be dispositive on the precise question of whether
revenues from collatable items are exempt, it does not follow that the rule is by
analogy obligatory on this court in dealing with the question of whether collation is
due for the value of donated use, occupancy or habitation which themselves constitute
the benefit or advantage.
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Here David and Hunter did not own the apartment or the house. They did not
even have the usufruct of these. Theirs were only the rights of habitation or use. This
produced no revenues. In a sense, what they had was the equivalent of revenue. But to
make them collate the value of their occupancy and not compel an owner to collate the
value of the revenues produced by the thing owned is not contradictory. In both cases
the donee or beneficiary returns to the ancestor's estate the value equivalent of exactly
what he got -- in one case the basic ownership and in the other the occupancy.
Other considerations might warrant a difference in treatment between an heir
given basic ownership and one who gets only a portion of the ownership. The
hardship and problems of making the latter account for the revenues could justify the
difference.
We cannot agree with the view that revenues should not be collated because the
gift of such does not deplete the ancestor's estate. Depletion of the estate would be
germane to a reduction situation. There, the ultimate value of the estate is the
question. But, as to collation, benefit or advantage to the heir is the test regardless of
whether the estate is depleted. Although there is no depletion of the estate, any benefit
or advantage to an heir affects presumed equality.
Even if depletion of the ancestor's estate would be pertinent, to hold that a gift of
revenue never depletes the donor's ultimate estate is unrealistic. Modern investment
practices do not justify such a view. The question of depletion, vel non, should be
resolved on the facts of each particular case.
If decedent had barely subsisted from month to month and left no assets of any
consequence, it could be argued that she would have consumed the rental revenues of
the properties occupied by her children and the free occupancy would have had no
effect on her estate's ultimate value. The record herein clearly shows the contrary.
Mrs. Pierson lived to the full extent of her wishes during the years of free occupancy.
Her estate was considerable. If she had rented out the properties instead of allowing
their free use by her children, the estate would have been increased pro tanto.
Accordingly, we hold that a gift of use or habitation is not exempt from collation
solely because of its nature as the equivalent of revenue or because revenues from
collatable items are deemed exempt from collation. By this ruling we do not intend to
require collation of every use or occupancy permitted by a parent to a child. Many of
these will be so trifling, temporary, intermittent, on such occasions and under such
circumstances that they would clearly fall within the language of the Gomez case as ". .
. things usual for parents of this country to give to a child without thought or regard to
his having to account for them to his co-heirs."
We think that the permitted occupancy of the garage apartment by David should
be exempt from collation. David was never married; he and his mother were very
close. He assisted her in many ways. Originally, he occupied a room in the family
residence. After a maid who occupied the garage apartment left, he moved into it. The
apartment was very meagre; its rental value was estimated at $25 per month. In
winter, David was forced to move into the family residence with his mother. He
actually lived in the family home with her for several months prior to her death. The
arrangement was to a large extent for Mrs. Pierson's convenience and requirements.
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Considering all these circumstances, we conclude that the permitted occupancy ". . .
was without thought or regard to his [David's] having to account for them [it] to his coheirs."
Hunter moved into the residence around 1950 and paid rental for two years. He
then added onto the house and thereafter paid only the taxes and insurance. A realtor
fixed the rental value from 1952 to 1960 at $100 per month and thereafter at $120 per
month. This would amount to $24,000. We cannot say that the whole rental value
should be collated because it was not completely free. Hunter paid about $2,000 for
the addition which inured to the value of the property and consequently the estate.
Additionally, he paid insurance and taxes for the 18 years involved. The payments for
the addition, insurance and taxes were part of the overall arrangement between him
and his mother and should be calculated into the amount due. From the record
available, we calculate the taxes and insurance paid for the 18 years at $2,880. We
will allow this total of $4,880 for the addition, insurance and taxes as a credit against
the gross rental of $24,000 leaving a net collatable figure of $19,120.
________
5}
Fruits of donated property (?)
SH 56.5. Pascal donates his Muscadine vineyard to his son, Ti-Boy. Later that year, Ti-Boy harvests
his first Muscadine crop. Then Pascal dies, survived by Ti-Boy and Lil-Fille, Pascal’s 18 year-old daughter.
Several months later, Ti-Boy harvests his second Muscadine crop. Just shy of one year later, as Ti-Boy is
about to harvest his third Muscadine crop, Lil-Fille opens Pascal’s succession (judicially speaking) and, in
connection with those proceedings, demands collation from Ti-Boy. Ti-Boy then harvests the third crop.
Which, if any, of the Muscadine crops is Ti-Boy obligated to collate? Why? See the case summary that
follows:
________
Cynthia Samuel, Katherine S. Spaht & Cynthia Picou,
SUCCESSIONS & DONATIONS: CASES & READINGS 155 (Fall 2000)
Succession of Doll v. Doll, 593 502d 1239 (Ln 1992) dealt with the question of
whether or not the donee who has to collate must collate the fruits and revenues
collected (a) during the lifetime of the donor, (b) from the date of death of the donor, .
. . c) from date of judicial demand or (d) at all.
There was [and still is] no article on point in the section on collation. Article
1515 treating reduction of excessive donations provided that the donee retains all fruits
and revenues received during the lifetime of the donor. Those received post mortem
were subject to restoration, running from date of death if the demand was made within
the year following death. If the demand was made more than one year from date of
death, the donee kept only those fruits received from date of demand. An earlier case,
Clark v. Hedden, 109 La. 174, 33 So. 116 (1902), [had] applied R.C.C. Article 1515
[to a demand for collation] by analogy.
In . . . Doll the Supreme Court rejected the approach of Clark, yet arrived at the
same result. [As the Doll court noted,] R.C.C. Article 1559 et seq., [which is part of a
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CC chapter entitled] “Exceptions to the rule of irrevocability of Donations inter vivos,”
provides in part for the [so-called] “legal return.” The [Doll] court held real collation
to be a type of legal return. [The Doll court then cited] R.C.C. Article 1569[, which]
provides “the donee is not bound to restore the fruits by him gathered previous to the
demand for revocation.” [Thus, under the Doll rule, the collatee’s duty to collate the
fruits of the thing to be collated does not incept until the date of the judicial demand
for collation.]
________
b)
Objects excluded
1]
By operation of law
a]
With respect to time
SH 57.1. M gives her daughter D a farm in 2000, a car in 2002, a horse in 2005, and a boat in 2006.
M dies in 2007. Which of these gifts can M's son, S, demand that D collate? Why? Why not the others?
See CC art. 1235.
b]
With respect to type of gratuity
1}
Legacies
SH 57.2. GM has two daughters, D1 and D2; D2, in turn, has a daughter, GD. D2 dies. GM then makes
out a will in which she leaves all of her property to D1--a universal legacy. Then GM dies. GD then
demands that D1 collate this gratuity and that the property then be divided by forced heirship or intestate
succession law, i.e., 50/50. Is D1 required to collate this legacy? Why or why not? See the jurisprudence
and the doctrine that follow:
________
Jordan v. Filmore,
167 La. 725, 120 So. 275 (1929)
O'NIELL, J.
Mrs. Julia B. Miles died in Los Angeles, Cal., on the 5th of December 1925,
leaving an estate in Louisiana, consisting of a plantation in Morehouse parish, [etc.] . .
. There are two heirs to the succession, namely, Mrs. Pearl Miles Reilly, known
professionally as Charlotte Shelby, who is the daughter of the deceased, and Mrs.
Hazel Minter Jordan, who is the granddaughter, being the only child of a predeceased
daughter, of Mrs. Miles. The two heirs are therefore forced heirs of Mrs. Miles, and
would have inherited her estate equally if she had died intestate.
. . . Mrs. Shelby . . . claimed the whole estate of her mother, under the latter's will,
which is as follows:
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II:
SUCCESSIONS
"Los Angeles, Cal.
"Saturday, 21st Feb. 1925.
"This my last will and testament. This is to certify that my
beloved daughter Pearl Miles Reilly, known as Charlotte Shelby, is to
have and to hold and fall heir to all my belongings whatsoever, real
estate, moneys, personal property, wherever located, and I further name
and appoint her my Executrix.
[Signed] Julia B
"Witness: Chauncy T. Eaton."
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Mrs. Shelby filed the will in court with a petition asking that it be admitted to
probate and that she be permitted to qualify as testamentary executrix. Mrs. Jordan
opposed the probate of the will and questioned its validity on several grounds. . . . Mrs.
Jordan prayed that she and Mrs. Reilly should be recognized as the forced heirs of
Mrs. Miles and that her estate should be divided equally between them.
. . . [T]he [district] court gave judgment declaring the will of Mrs. Miles valid,
but reduced the legacy of Mrs. Reilly to a half of the estate, on the theory that, as there
were two forced heirs, the disposable portion was only a half of the estate, and, as the
testatrix did not declare in her will that she intended the legacy of the whole estate to
be an extra portion, Mrs. Reilly could take only a half of the estate-either as heir or as
legatee. . . .
It is conceded by the appellants, Mrs. Reilly and Mrs. Filmore, . . . that Mrs.
Jordan is entitled to a fourth of the estate, as a forced heir, and, therefore, that the
legacy of the whole estate to Mrs. Reilly should be reduced to three-fourths. The only
question to be decided is whether Mrs. Jordan is entitled to only a fourth of the estate,
as a forced heir, or is entitled to a half of the estate on the theory that the testatrix did
not declare in unequivocal terms in her will that her intention was to leave the estate to
Mrs. Reilly "as an advantage or extra portion." The issue in the case is stated in the
brief filed on behalf of Mrs. Jordan, thus:
"The question in the case is not, as stated by counsel for appellant,
whether, under the circumstances, your honors can conclude that the donor
intended her daughter [Mrs. Reilly] to be privileged over her granddaughter
[Mrs. Jordan], but is, whether or not, under the wording of the will which
was executed by the testatrix and duly proved, the testatrix expressed in
terms of unequivocal meaning, or in express terms, an intention to give her
daughter, Pearl Miles Reilly, all of the disposable portion of her estate as an
extra portion; and we believe that your honors will search the will in vain for
any language showing any such intention or inference; and, as stated before,
the apparent intention of the testatrix was to disregard the law of Louisiana
in reference to inheritance and give all of her property to one forced heir to
the entire exclusion of the other heir."
The attorneys for Mrs. Jordan cite and rely upon the following articles of the
Civil Code, under the title "of Collations," . . . .
The attorneys for Mrs. Jordan rely also upon Art. 1493 of the Civil Code, which
limits the disposable portion of an estate to two-thirds if the donor or testator leaves
one child, one-half if he leaves two children, and one-third if he leaves three or more
children; and they rely particularly upon Art. 1501, under the title "Of the Disposable
Portion and the Legitime," viz.:
"Art. 1501. (1488) * * * The disposable quantum may be given, in
whole or in part, by an act inter vivos or mortis causa, to one or more of the
disposer's children or successible descendants, to the prejudice of his other
children or successible descendants, without its being liable to be brought
into the succession by the donee or legatee, provided it be expressly declared
by the donor that this disposition is intended to be over and above the
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legitimate portion.
"This declaration may be made, either by the act containing the
disposition, or subsequently by an instrument executed before a notary
public, in presence of two witnesses."
There is some confusion in the jurisprudence on this subject, due to the failure of
the court in some cases to observe the distinction between "collation," which a
descendant heir may demand of his coheir, and the reduction of an excessive donation
or legacy to the disposable portion, which reduction the forced heirs may demand of
any donee or legatee. The difference between the right to demand collation and the
right to demand a reduction of an excessive donation or legacy to the disposable
portion is that collation can be demanded only from a coheir, but does not depend
upon the extent of the inequality in the disposition of the ancestor's estate; whereas the
right to demand a reduction of an excessive donation or legacy to the disposable
portion may be demanded from any donee or legatee - whether he be an heir or a
stranger - but it can be demanded only when and to the extent that - the donation or
legacy exceeds the disposable portion. The right to claim collation, strictly speaking,
arises only from a donation made or an advantage given to a prospective heir by his
ancestor during the latter's lifetime, and not from a legacy given by last will. That is
rendered certain by the theory or presumption on which the obligation of an heir to
collate is founded, as explained in Arts. 1228 and 1229 of the Code; that is, that what
is given by ancestors to their offspring is presumed to be given "in advance of what
they might one day expect from their succession." It would be absurd to say that what
is given by last will and testament, by an ancestor to his offspring, is presumed to be
given in advance of what the legatee might one day expect from his ancestor's
succession." The absurdity seems to have been overlooked in the writing into Arts.
1228, 1229, 1231, 1232, and 1233 such expressions as "donations and legacies" and
"given or bequeathed." The same confusion of terms appeared in Art. 843 of the Code
Napoleon, from which Art. 1228 of the Revised Civil Code of Louisiana Art. 1306 of
the Code of 1825 was translated; but the confusion in Art. 843 of the French Code,
which made it seem that collation was applicable to testamentary dispositions, as well
as to donations inter vivos, was removed by legislation, by the Act of March 24, 1898.
The article originally declared:
"Every heir, even beneficiary, coming to a succession, must bring to his
co-heirs all that he has received from the deceased, by donation inter vivos,
directly or indirectly; he cannot retain the gifts or claim the legacies given to
him by the deceased, unless the gifts and legacies had been made to him
expressly as an advantage over his coheirs and besides his portion, or with
dispensation from collation."
The first part of the article would leave no doubt that collation is applicable only
to donations inter vivos, and not to testamentary dispositions, but for the use of the
word "legacies," along with the word "gifts," in the last part of the article. The
purpose and effect of the amendment of the article by the Act of March 24, 1898, was
to make it plain that the obligation of an heir to collate, in the absence of an express
exemption from collation, is applicable only to donations inter vivos, and is not
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applicable to legacies given by testament unless the testator has declared that the
legacy is not given as an advantage or extra portion . . . .
Art. 1501 of the Louisiana Code indicates, more plainly than Art. 919 of the
French Code, that it is only when the disposable portion is given to a prospective heir
by donation inter vivos, and not when it is given to an heir by testament, that it must be
expressly declared to be given as an advantage or an extra portion, in order to exempt
the donee from the obligation of collation, strictly so called; for Art. 1501 provides
that such a declaration must be made by the donor, to avoid the obligation of the donee
to collate. There is no indication in Art. 1501 for there would be no sense in the
requirement that a testator who bequeaths more of the disposable portion of his estate
to one of his descendant heirs than to another must express, any more plainly than his
favoritism itself expresses, his intention that the legacy bequeathed to the favored heir
is intended as an advantage over the other heir, or as an extra portion in order to avoid
the obligation of collation strictly so called. All that the testator has to do in the
distribution of his estate among his heirs as he sees fit, to be sure that his will shall be
carried out, is to avoid impinging upon the legitime which the law reserves to each of
his forced heirs. * * *
What we have said, however, is perhaps not so much to the point as is the fact
that there is no such article in the French Code as Art. 1233 of the Louisiana Code,
which provides that the declaration that a donation "is made as an advantage or extra
portion" need not be expressed in those words, but "may be made in other equivalent
terms, provided they indicate, in an unequivocal manner, that such was the will of the
donor."
Notwithstanding the differences which we have pointed out, between the
provisions of the French Code and those of the Louisiana Code, on the subject of
collation, the jurisprudence in France and the opinions of some of the commentators
maintained, before Art. 843 of the French Code was amended by the Act of March 24,
1898, that an exemption from collation was not required to be expressed in any
sacramental terms, but might be inferred from the language of the instrument, and was
necessarily inferred in the case of an universal or a residuary legacy. . . .
________
Lazarus, Faculty Symposium: The Work of the Louisiana Appellate Courts, 19721973:
Successions and Donations, 34 LA. L. REV. 219 (1974)
The Louisiana Civil Code defines collation as the return that an heir makes to the
mass of the succession to be partitioned, of all donations inter vivos or bequests that
the de cujus may have made in his favor, for the purpose of maintaining equality
among all the heirs of the deceased, the presumption being that what was given was in
the nature of an advance on the hereditary portion of the donee. This presumption,
however, is inapplicable where the de cujus has expressed his intention to the contrary,
so that no collation will be required where the disposer has dispensed the donation or
legacy from collation by declaring that what was given was intended as an advantage
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or extra portion. There is no difficulty in the application of these principles to
donations inter vivos: The articles of the Civil Code make it abundantly clear that
unless the donor declares that the gift is made as an extra portion, the donee is required
to restore or return the gift unless he elects to renounce the succession of the donor, in
which case he will be permitted to keep the gift, but only to the extent of the
disposable portion. But Art. 1227 of the Civil Code also speaks of legacies, and the
question has been raised as to whether a person may prefer one heir over another by
simply making a donation mortis causa without more. In Jordan v. Filmore, decided
by a divided court, three justices dissenting, Chief Justice O'Neill, speaking for the
majority of the court, asserted that the right to claim collation arises only in the case of
donations inter vivos and not in the case of legacies:
That is rendered certain by the theory or presumption on which the obligation of
an heir to collate is founded, as explained in Arts. 1228 and 1229 of the Code;
that is, that what is given by ancestors to their offspring is presumed to be given
in advance of what they might one day expect from their succession. It would be
absurd to say that what is given by last will and testament, by an ancestor to his
offspring, is presumed to be given in advance of what the legatee might one day
expect from his ancestor's succession.
This writer perceives no absurdity. Collation may not be the proper term to use
when speaking of legacies for it may very well be that a legacy may not constitute an
advance to the legatee of his hereditary share; and it may very well be that a legacy
cannot be returned or restored to the mass to be partitioned because it has not yet been
paid out to the legatee. But the principle on which collation is founded is still the
"equality which must be naturally observed between children and other lawful
descendants," and therefore, under the scheme of the Civil Code, if a parent wishes to
prefer a child over another, whether that preference be conferred by way of an inter
vivos donation or a donation mortis causa, the donor or testator must have "formally
expressed his will that what he thus gave was an advantage or extra part...." As
applied to legacies, therefore, collation simply means what the Code explicitly
provides, viz. that the legatee cannot claim his legacy in addition to his hereditary
share unless the legacy is declared to have been made as an advantage or extra portion.
In the Louisiana Civil Code, therefore, collation is used in its broadest sense to include
not only the return to the hereditary mass of the things given inter vivos, but also the
retention in that mass of the things bequeathed.
Although the dispensation from collation that the disposer may make must be
express, no sacramental words are required, and therefore, any declaration from which
the disposer's intention to make the dispensation is clearly manifested should suffice.
By the same token, if from the context, or from the dispositions inter vivos or
testamentary, taken as a whole, it is evident that the disposer does not intend to prefer
one of his heirs over the others, the obligation to collate what was given or bequeathed
will necessarily result. This was the conclusion reached in Succession of Higgins [275
So.2d 447 (La. App. 4th Cir. 1973)], recently decided by the Fourth Circuit Court of
Appeal. In that case, the testatrix bequeathed her entire estate to her two sons "share
and share alike." One of the sons having predeceased the testatrix, the testamentary
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executor proposed to distribute the succession in the proportions of three-fourths to the
surviving legatee and one-fourth to the children of the predeceased son on the theory
that the surviving legatee was entitled not only to his legacy of one-half, but also to
share equally in the distribution of the other one-half ab intestato, concurrently with
the representatives of his predeceased brother. The district court rejected this proposed
distribution and ordered the succession to be divided in the proportions of one-half to
the surviving legatee and one-half to the grandchildren of the testatrix. The court of
appeal affirmed, holding that since the obvious intention of the testatrix was not to
favor either of her sons to the prejudice of the other, the legacy was subject to collation
and that therefore, under the express provisions of Art. 1237 of the Civil Code, the
surviving legatee was entitled either to his legacy upon his renouncing the succession,
or to his hereditary share ab intestato in the entire succession of the deceased. The
decision is correct, but it seems that the court missed the opportunity to dispel any
doubts that might yet exist regarding the collation of legacies.
In light of the foregoing, what was said in Jordan in this regard does not hold true
even in the decision itself, for a careful reading of the opinion will reveal that the court
eventually found a sufficient manifestation of the testator's intent to prefer one child
over the other, and thus to exempt the legacy to the preferred child from collation to
the extent of the disposable portion.
________
SH 57.3. GM has a son, S, and two daughters, D1 and D2. S, in turn, has several children, GCs. Before
her death, GM takes out five annuity policies, each of which names D1 and D2 as co-beneficaries in the
event of her death. S dies. Then GM dies. The GCs then demand that their aunts, D1 and D2, collate the
proceeds of the annuity policies. Are D1 and D2 required to collate this gift, which is a variation on the
donation mortis causa? Why or why not? See CC art. 1235 and the jurisprudence that follows:
________
Succession of Fakier,
541 So.2d 1372 (La. 1988)
CALOGERO, J.
The issue in this case is whether certain property transferred by the testatrix to her
daughters is subject to collation. The property in question includes . . . five annuity
policies purchased by the decedent which named both of her daughters as beneficiaries
in the event of her death.
The parties seeking collation of the subject property are grandchildren, the
children of testatrix's predeceased son. Under the terms of the will, the grand-children
received only the share of the forced portion reserved for them by law, whereas the
daughters were jointly bequeathed their respective shares of the forced portion and the
entire disposable portion of the estate.
The trial judge rejected the grandchildren's demand for collation, finding that . . .
the annuities are similar to life insurance policies and are not subject to collation
because the proceeds of life insurance policies are legally protected from the claims of
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forced heirs under Louisiana Revised Statutes Annotated § 22:647 (West 1978 & 1988
Supp.) and Louisiana Civil Code Annotated Art. 1505 (West 1987). Relying on
similar reasoning, the court of appeal affirmed. Succession of Fakier, 509 So.2d 33
(La. App. 1st Cir. 1987). . . .
...
The annuities, on the other hand, are not subject to actual collation for the reason
that they were not transferred by inter vivos donation. For this reason alone, we affirm
the portion of the court of appeal's judgment which held that the annuity proceeds are
not collatable.
...
The grandchildren concede in brief that the annuities were not transferred to the
daughters by virtue of an inter vivos donation. Ownership of the annuities was never
transferred by Mrs. Fakier, and the proceeds were payable to her daughters only in the
event of her death.
The requirement of actual collation applies only to inter vivos donations. LSAC.C. arts. 1227 & 1228; Roach v. Roach, 213 La. 746, 35 So.2d 597 (1948); Jordan
v. Filmore, 167 La. 725, 120 So. 275 (1929). Because the annuities were not
transferred by virtue of an inter vivos donation, they are not subject to actual collation.
The district court and the court of appeal reached the correct conclusion on this
issue, but their analysis of the decedent's intent in purchasing the policies and the
purported similarity of the annuities to life insurance was unnecessary. The finding
that the annuities were not transferred by inter vivos donation should end the inquiry at
this juncture in these succession proceedings. . . .
________
2}
Customary gifts of small value (“manual gifts”)
a}
Exposition (CC art. 1245)
b}
Illustration
SH 57.4. GM has a son, S, and two daughters, D1 and D2. S, in turn, has several children, GCs. Before
her death, GM gives D1 a diamond ring worth $10,000. S dies. Then GM dies. The GCs then demand that
their aunts, D1 collate the ring. D1 refuses the demand, insisting that it falls within the "manual gift"
exemption of art. 1245. Will this defense fly? Why or why not? See the jurisprudence that follows:
________
Succession of Fakier,
541 So.2d 1372 (La. 1988)
CALOGERO, J.
The issue in this case is whether certain property transferred by the testatrix to her
daughters is subject to collation. The property in question includes a diamond ring
which the decedent gave to one of her daughters . . . .
The parties seeking collation of the subject property are grandchildren, the
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____________________________ PART II: SUCCESSIONS ____________________________
children of testatrix's predeceased son. Under the terms of the will, the grand-children
received only the share of the forced portion reserved for them by law, whereas the
daughters were jointly bequeathed their respective shares of the forced portion and the
entire disposable portion of the estate.
The trial judge rejected the grandchildren's demand for collation, finding that the
diamond ring is not collatable for two reasons: (1) the decedent's inter vivos transfer
constituted a manual gift, and (2) the will dispensed with the necessity of collation
because it reflected the decedent's intent to favor her daughters to the maximum extent
allowed by law. . . . Relying on similar reasoning, the court of appeal affirmed.
Succession of Fakier, 509 So.2d 33 (La. App. 1st Cir. 1987). . . .
We now reverse that portion of the court of appeal's judgment which held that the
ring is not to be collated. The ring is not exempt from collation simply because it was
a manual gift. Nor did the decedent dispense with the necessity of collating the ring in
her will, or in any other manner sanctioned by the Louisiana Civil Code. Therefore,
the ring is subject to actual collation under the provisions of LSA-C.C. Art. 1227, et
seq.
In 1981, after the death of her husband, Mrs. Fakier executed a statutory will.
The will appointed Patricia as executrix of her estate, made certain specific bequests to
her granddaughters and left the entire disposable portion of the estate to the two
daughters. The testament contained the following explanation of the dispositions made
therein:
In explanation of my bequests hereinafter made, I provide the
following. It was always my intention and the intention of George C. Fakier,
Sr., that our three children would share equally at the time of our deaths, in
the estate that we had acquired together during our marriage. George C.
Fakier, Sr., had sincerely desired that our son, George C. Fakier, Jr., should
have a business in order to support his family. Following the death of
George C. Fakier, Sr., and at a time when George C. Fakier, Jr., was
terminally ill, my daughters and I executed various documents, wherein
George C. Fakier, Jr., and his heirs, were enabled to obtain, in full
ownership, the entirety of our family business, George C. Fakier & Son, Inc.
At the time of the disposition of the stock held by myself and by my
daughters to George C. Fakier, Jr., and to his children, I and my daughters
were not fully informed or made aware of the valuations, exact details,
consequences and divestitures resulting from the transfer agreements.
Accordingly, a significantly less dollar value was received by each of my
daughters than they were apparently entitled to. As the direct result, the heirs
of my son, George C. Fakier, Jr., have been greatly favored over my
daughters by their sole ownership of a business corporation, owning real
estate, improvements, and merchandise of great value, both then and now.
As a direct consequence of the lesser and unequal monetary sums
received by my daughters in my husband's estate in comparison to the value
of the monetary sums and benefits received by my son, George C. Fakier,
Jr., and his heirs, as stated in the last preceding paragraph, it is my desire to
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____________________________ PART II: SUCCESSIONS ____________________________
provide my two daughters with as much property, of whatever nature,
movable and immovable, community and separate, including all rights and
credits that I may own at the time of my death, to the fullest extent and as
may be authorized by law.
More particularly, it is my desire that my two daughters, Patsy Ann and
Mary Jude, shall receive, along with the heirs of my son, George C. Fakier,
Jr., their respective forced portions. Additionally, it is my express desire that
my two daughters, Patsy Ann and Mary Jude, shall receive, in equal parts
and share and share alike, the entirety of the disposable portion of my estate
which remains after the computation of the forced portion to which each of
my daughters and the heirs of George C. Fakier, Jr., shall each legally
receive.
...
The grandchildren's motion alleges that the decedent made to her daughter
Patricia an inter vivos donation of a ring valued at $ 10,000. . . .
The grandchildren contend that because the decedent executed no instrument
dispensing with the requirement that the ring be collated, actual collation must occur.
The executrix disagrees, contending that decedent's will is the instrument which
dispenses with the requirement of collating the ring.
LSA-Art. 1232 provides that the act which dispenses with collation may be the
donor's last will and testament. In order to effectuate a dispensation, it is not necessary
for the language of the will to include a direct reference to collation. Art. 1231 states
that a declaration that the donation was "made as an advantage or extra part" is
sufficient. The declaration that the donation was so intended may be made "in other
equivalent terms," as long as that intention is set forth "in an unequivocal manner."
LSA-C.C. Art. 1233.
However, Mrs. Fakier's will does not refer to the transfer of the ring, or to any
other inter vivos donations that she may have made to one or more of her children. In
order to relieve Patricia from the obligation of collating the ring, in a manner required
by the Civil Code, the testatrix could have (1) made a reference in her will to the
transfer of the ring, and indicated by appropriate language that she gave the ring to
Patricia as part of the latter's extra portion, or (2) stated generally that all inter vivos
gifts to her daughters, or to her children, were intended as advantages. The testatrix
chose neither option, and the Civil Code requirements for dispensation from collation
were not met.
The executrix would have us assume that because Mrs. Fakier left the entire
disposable portion of her estate to her daughters (minus certain particular legacies),
and stated in her testament that she desired to favor her daughters in order to equalize
the effect of past advantages to her son, she did not intend for the daughters to collate
any inter vivos donations. The trial court and the court of appeal accepted this
assumption, reasoning that collation of the ring was contrary to the testatrix's intention.
We reject this assumption for two reasons. First and foremost, the Civil Code
sets forth with precision the method by which a donor may dispense with collation,
and absent a dispensation sanctioned by the Code, courts are not free to decline to
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____________________________ PART II: SUCCESSIONS ____________________________
order collation based upon their assumptions about the donor's intentions. To the
contrary, "collation is always presumed, where it has not been expressly forbidden,"
according to Civil Code Art. 1230.
Secondly, the will cannot be considered as a reflection of the testatrix's intentions
regarding any inter vivos donations that she made to her daughters, for the simple
reason that the will does not mention such donations. The fact that Mrs. Fakier's will
expresses the desire for her daughters to inherit the disposable portion does not speak
to whether she intended that Patricia would or would not have to collate the value of
the ring by taking that amount less when succession assets are distributed. Further, if
the testatrix gave the ring to Patricia as an advantage, that advantage would exist not
only over the grandchildren, but also over Patricia's sister, Mary. There is no
indication in the will that Mrs. Fakier intended to favor Patricia in this fashion.
Nor does the testatrix's expressed desire to have her three children "share equally"
in the amount ultimately received from her and her husband, inter vivos and mortis
causa, constitute a dispensation from collation. There is no indication in the will that
Mrs. Fakier thought that collation of inter vivos gifts would defeat this equal sharing or
the "evening up" that she hoped to achieve by bequeathing her daughters the
disposable portion.
This case is readily distinguishable from Darby v. Darby, 118 La. 328, 42 So. 953
(1907), where the act of donation specified that the property was donated in order to
place the donee on equal footing with other descendants who had received previous
advances. We concluded that the language in that act of donation reflected the donor's
intention that the donee receive the property described in the act of transfer as an extra
portion. In this case, however, there is no document, be it the will or otherwise, which
refers at all to the gift of the ring, or which generically exempts from collation inter
vivos donations to Patricia. Thus we do not know what the testatrix's intentions were
regarding the donation of the ring, and, in light of the presumption in favor of collation
required by Art. 1230, we decline to guess.*
...
_______________
* On the other hand, Mrs. Fakier did make clear her intentions regarding certain
immovable property that she donated to her daughters, stating in the act of donation
that said property was intended as "an extra portion."
Certain language in the court of appeal and trial court opinions indicates that the
ring should be exempt from collation simply because it is a "manual gift." Civil Code
Art. 1539 defines manual gift as "the giving of corporeal movable effects,
accompanied by a real delivery." In support of the proposition that manual gifts are
exempt from collation, the lower courts cited LSA-C.C. Art. 1245, an article which
exempts from collation "things given by a father, mother or other ascendant by their
own hands, to one of their children for his pleasure or other use."
In Gomez (I), 67 So.2d 156, we examined in detail the history, purpose and scope
of Art. 1245, and concluded that it does not exempt all manual gifts from collation.
We found that when Art. 1245 speaks of things which parents give to their children
"by their own hands," it refers only to "those things usual for parents of this country to
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____________________________ PART II: SUCCESSIONS ____________________________
give to a child without thought or regard for the child having to account to his
coheirs." 67 So.2d at 161. We noted that Art. 207 of the Louisiana Civil Code of 1808
listed customary parental gifts that were exempt from collation, including "small
presents" and money given to a child "for play and for pleasures," and concluded that
although the present code contains no such specific examples, Art. 1245 is intended
only to exempt from collation items of this nature. Id. At issue in Gomez (I) was
whether monthly cash stipends given by the decedent to her daughter were exempt
from collation under Art. 1245. We held that the money given to the daughter "is not
one of those things contemplated by Art. 1245, and therefore is not exempt from
collation under that article." Id. at 162. The same may be said here for the diamond
ring, which is clearly not the type of customary parental gift to which Art. 1245
applies.
We noted in Gomez (I) that even if a manual gift is not exempt from collation, the
donor may dispense with collation if his intention to do so "is clearly expressed in the
manner and form required by the Code." Id. We then discussed the fact that Art. 1232
requires a formal, written dispensation, executed before a notary and two witnesses,
and stated that obviously one way in which the donor of a manual gift could dispense
with collation would be through compliance with Art. 1232. However, because the
transfer of a manual gift "is not subject to any formality," [C.C. Art. 1539] we also
discussed the possibility of allowing the donee to prove that the donor intended to
dispense with collation, even when there is no formal dispensation under Art. 1232 we
could hold that the donor's intent to dispense collation of a manual gift could be
established by the facts and circumstances of the case. Under this latter holding the
donee would have the burden of establishing the intent to dispense by strong and
convincing proof so as to overcome the presumption of collation, for under our law,
where the donor has remained silent, collation is always presumed. 67 So.2d at 163.
Because of the facts before the Court in Gomez (I), we did not find it necessary to
rule definitively on the question of whether collation of a manual gift may be
dispensed with, when the facts and circumstances of the case reveal "strong
convincing proof" that such was the donor's intent.
We have already found here that there was no formal dispensation. As for the
facts and circumstances of the case, we have only the decedent's will to consider, there
being no testimony presented below that pertained to the donation of the ring. We have
noted above that nothing in the will requires the inference that the testatrix intended
for the ring to be an extra portion. Certainly the will alone does not constitute "strong
and convincing proof" that such was the case.
Even if we were to employ the facts and circumstances test discussed in Gomez
(I), the outcome of the case on this issue would be no different. There is no evidence
in the record that the decedent intended to give Patricia the ring as an extra portion,
and for that reason actual collation must occur.
________
3}
Expenses for support or education
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____________________________ PART II: SUCCESSIONS ____________________________
SH 57.5. M pays the tuition ($1,000) for D’s first year at the local community college. Then M dies.
M’s son, who chose not to go to college and, so, received no benefit comparable to that which D received,
obtain collation of the tuition money? Why or why not? See CC art. 1244.
2]
By effect of will
a]
Permissibility (CC arts. 1228, ¶ 1; 1231; 1232; & 1233)
________
PUZZLE
Does the converse power exist, that is, can the donor subject to collation a
particular gift that would otherwise, by operation of law, be exempt? Why or why
not? See CC arts. 1230 & 1255.
_____
b]
Presumption against exemption (CC art. 1230)
c]
Prerequisites
1}
2}
Substantive
a}
Capacity
b}
Consent (free)
Formal
a}
Manner of manifestation
1/
General rules:
a/
Legislation (CC arts. 1228, ¶ 1; 1230;
1231; 1232; 1233)
b/ Interpretation (jurisprudence &
doctrine)
Review Jordan v. Filmore and Succession of Fakier, reproduced above at pp. 523-26 & 529-33.
2/ Rules for problem cases: disguised
donations/ relative simulations
________
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____________________________ PART II: SUCCESSIONS ____________________________
Clark v. Hedden,
109 La. 147, 33 So. 116 (1902)
PROVOSTY, J.
Plaintiff [Mrs. S. W. (Hannah Hedden) Clark] brought this suit to compel her
brothers and sisters, D. C. Hedden, Mrs. Anderson, H. H. Hedden, and Helen Grace
Hedden, to share with her, with the equality prescribed by our law, the property of the
succession of their mother, Mrs. E. A. Hedden. . . .
The main issue is whether three sales of real estate--one to Helen Grace Hedden,
of the Canal street property, in 1890, for $10,000; one to Helen Grace Hedden and
Mrs. Anderson, of the Common and Carondelet streets properties, in 1893, for
$25,000; and one to D. C. Hedden and H. H. Hedden, of the St. Charles and Fulton
streets properties, for $35,000--were real sales, or merely disguised donations.
In 1866 Mrs. Hedden went into possession of the estate of her husband . . . .Two
of the defendants were still minors,--H. H. Hedden and Helen Grace Hedden,--and she
was their tutrix.
In 1886, after 20 years of administration of the estate, she made a full and final
settlement of the succession with her children. The authentic act evidencing this
settlement, after reciting the appearance of the parties before the notary, goes on to
recite that whereas, Henry Hamilton Hedden, husband of Mrs. Hedden, and father of
the other appearers, died in 1866, leaving a succession, whereof Mrs. Hedden was
owner of two-thirds and the other appearers were owners of the other one-third; . . .
and whereas, D. C. Hedden had received from the mother a like sum of $11,600; and
whereas, Mrs. Anderson had had and received from the mother in property and money
a like sum of $11,600; and whereas, H. H. Hedden and Helen Grace Hedden had had
and received from the mother each a like sum of $11,600,--the said Mrs. Clark, David
C. Hedden, Mrs. Anderson, H. H. Hedden, and Helen Grace Hedden, in consideration
of the premises, sell to their said mother all their rights in and to the succession of their
said father, without any exception or reservation whatsoever, the sale being made in
consideration of the [sum] received from the mother as hereinabove stated . . . .
...
[The “acts of sale” executed by Mrs. Hedden and her children (save one, i.e.,
Hannah Clark), dated between 1890 and 1893, all recited that the “consideration” for
the “sales” was the forgiveness by the children of the “debts” that Mrs. Hedden
supposedly “owed” to them ($11,600 to each) under the terms of the agreement,
reached in 1886, for the settlement of their father’s estate. In truth, then, the “acts of
sale” were misnamed, for the “deal” described therein was really a dation en paiment,
that is, the mother was supposedly giving the children property in exchange for her
being relieved of her debts to them.]
. . . It is admitted that at her death Mrs. Hedden had no property in her name
[because she had “sold” or “dationed” it all to he children], and it is proved that on the
day after the execution of the sales the defendants agreed to pay her $140 per month as
long as she lived, and that they did pay her this alimony up to the time of her death.
Four or five months after the death of Mrs. Hedden, H. H. Hedden handed to Mrs.
Clark the following letter in an unsealed envelope:
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____________________________ PART II: SUCCESSIONS ____________________________
My Dear Daughter Hannah, now Mrs. S. W. Clark:
A few months ago I decided to distribute my property among my
children before my death, and did so without asking any one's advice. I have
divided it, giving each one what I considered right, and with which
distribution each one expressed themselves satisfied. I did not include you
in the distribution of the real estate and other property [the “sales” to her
other children], as I considered that you had already received from me a
more valuable share than the rest of my children in the good will of the
grocery store of your father, which good will I gave to you without receiving
anything for it, which was given to you when you were young, and which
you have had the benefit now for over twenty years. I consider the good will
of the store is much more valuable than any share of the property received
by the other children.
I give you that as your portion of my estate.
I write this so you may understand that in my division of my estate I
thought of you as much as the other children, and to explain why you were
not included in the division of the real estate made. It was not intended as
any slight to you, as I have the same love and affection for you as for any of
my children.
Your loving mother,
[Signed] Elizabeth Hedden
'I read the document in the presence of Howard Hedden,' says Mrs. Clark, 'and
expressed to him my indignation at being so treated, and said it was the most unjust
thing I ever heard of.'
...
Under the circumstances heretofore detailed [in particular, Mrs. Hedden’s letter to
Hannah Clark], there is unquestionably made out for the plaintiff a strong case, one
which places the defendants under the necessity of producing convincing proof in
rebuttal. What do they produce? Nothing, except the impugned acts themselves, and
one single witness. They claim that the consideration of the sales was a debt due them
by their mother as heirs of their father, and they undertake to prove the debt by one
single witness. . . .
...
This act of 1886 proves conclusively, as against the defendants, that the mother
settled with them in full as heirs of their father, and that thereafter she owed them
nothing. And, since this pretended debt is the only consideration urged for these sales
in so far as D. C. Hedden, Mrs. Anderson, and H. H. Hedden are concerned, the
conclusion is that, as to them, the sales were without consideration.
________
SH 58. F and M have three children, A, B, and C. F dies. Sometime later M and A, B, and C reach an
agreement for the distribution of F's estate, an agreement under which M pays a certain sum of money to
each of them. Later on M purports to sell A a piece of land. The act of sale recites that the "consideration"
for the sale is M's prior payment of money to A. M then dies. B and C then demand that A collate the land.
-533-
____________________________ PART II: SUCCESSIONS ____________________________
(i) On what basis might they do this? The act was a sale, wasn't it? And collation affects only donations,
not sales, right? (ii) If you were counsel for A, what defense to collation would you raise? Explain. Review
Montgomery, reproduced above at pp. 513-14, and Clark, reproduced above at pp. 535-36.
b}
Solemnities
1/
Act whereby gratuity is extended, e.g., act of
donation inter vivos
2/ Authentic act passed after extension of
gratuity
3/ Testament
c}
Content
1/
"an advantage or extra part" (CC arts. 1231,
1232, 1233)
2/ "other equivalent terms, provided they
indicate, in an unequivocal manner, that
such was the will of the donor" (CC art.
1233)
SH 59.1. M has several children. Through the years, she bestows many gratuities on most of them,
from lavish wedding presents to free room and board. But to one of them, O, she gave nothing. And so, just
before she died, she donated 40 acres worth $2,500 to O. In the act of donation, she explained that it was
her "wish and intention to place him upon [a] footing equal to her other children, and to equalize the
advance of money and otherwise which she has made to her other children." Must O collate the 40 acres?
Why or why not? See the jurisprudence that follows:
________
Darby v. Darby,
118 La. 328, 42 So. 953 (1907)
PROVOSTY, J.
Mrs. C. Darby died intestate in 1905, leaving a succession of some $35,000, and
six children and the issue of one predeceased child. She . . . made him a donation in
1897 of 40 acres, valued at $2,500. This suit is brought by one of the heirs and by the
children and heirs of the predeceased child to compel the defendant to collate the said
property thus . . . donated to him, or its value. . . .
The sole question in the case is whether the following recital of the act of
donation evidences an intention on the part of the donor that the donation should be by
way of extra portion, not subject to collation, to wit:
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____________________________ PART II: SUCCESSIONS ____________________________
"Mrs. Coralie Fuselier Darby, who declared that inasmuch as she has
previously accounted to all her children named as follows, to wit, Felecie
Darby, widow of Louis De Blanc deceased, Miss Coralie Darby, Mrs.
Constance Darby, deceased wife of Leon Séré, also deceased, Paul Darby,
George Darby, and given to each money or property amounting in each case
to more than two thousand five hundred dollars, and having given nothing to
her son, Octave Darby, it is her wish and intention to place him upon footing
equal to her other children, and to equalize the advance in money and
otherwise which she has made to her other children as named and for that
purpose, to place the said donee upon a footing equal with said other
children, it was her intention to make, and she does make, a donation inter
vivos unto her son, Octave Darby, who is here present accepting for himself
and his heirs and assigns, the following described property, to wit."
Plaintiff's learned counsel argues that, since there will be equality among the heirs
unless an extra portion is given, the intention to give an extra portion is an intention to
create an inequality; and that, consequently, an avowed intention to create equality
among the heirs, as in the act of donation here in question, cannot be construed into an
intention to give an extra portion. That, far from having expressed an intention by this
donation that her heirs should share unequally, the decedent has, on the contrary,
expressed thereby a desire that they should share equally; and that to give now to her
said act such an operation as would produce inequality would be, plainly and palpably,
not to carry out her intention, but, on the contrary, to frustrate it. That there would be
equality only if the other heirs had received an equivalent portion; but that, as a matter
of fact, they had not. That what some of them had received had been from the estate
of their father, and not from that of the decedent. That the plaintiff had received
nothing.
Defendant answers that the other heirs did receive equivalents, and that the
donation does as a matter of fact operate by way of equalization; but that, if it did not,
the legal situation would be precisely the same, since the above-quoted recital of the
act of donation expresses the intention of giving the property as an extra portion.
In regard to whether equivalents were received, the record shows, as follows:
The parents of the litigants were wealthy, and lived in New Orleans, until as a result of
the War they lost their fortune and retired to the country. There they lived on a
plantation which the father had saved from the general wreck by making a transfer of it
to the mother in satisfaction of her dotal and paraphernal claims. The plantation
brought little revenue, and, until the father's death in 1876, portions of it had to be sold
now and then to help meet expenses. The two elder daughters, Mrs. De Blanc and
Mrs. Séré, married advantageously; the former in 1852 and the latter in 1859. The
other daughter, Miss Coralie, continued to live with her mother and to be supported
entirely by her, up to her death, and so did plaintiff, Paul Darby. Mrs. De Blanc and
Mrs. Séré, at their respective marriages, received marriage portions, slaves, and other
property, exceeding $ 2,500, and George Darby received at divers times sums of
money exceeding in the aggregate $ 2,500. All the children, except defendant,
received the benefits which enure to the children of wealthy parents living in a large
-535-
____________________________ PART II: SUCCESSIONS ____________________________
city, in the way of education and social advantages and enjoyments. Defendant was
yet a mere child when misfortune came, and his infirm health had not allowed of his
even getting the benefit of primary tuition, and circumstances did not allow thereafter
of his getting an education. At the death of his father, his mother employed him as
manager at a salary of $ 25 per month plus his board and lodging, and he worked so
devotedly and intelligently that whatever the mother succeeded in accumulating was
the result largely of his labors. Mrs. De Blanc, Miss Coralie Darby, and George Darby
admit that they have received full equivalent, and they have signed an act consenting
that defendant hold the donated property as an extra portion, and we think that the 29
years of support which the plaintiff Paul Darby has received from his mother is a full
equivalent of the donated property. The slaves and other property received by Mrs.
Séré are also an equivalent of the donation. But counsel for plaintiff argues that the
said equivalent was received from the parents during their marriage and the
consequent existence of the community of acquets and gains, and therefore from the
father, as head of the community, and not from the estate of the mother. He argues,
further, that the benefits of education and the social advantages, and, among the latter,
that of an advantageous marriage, received by Mrs. Séré, are not collatable advantages,
and therefore cannot serve as equivalents for the donation to defendant, and did not
create an inequality among the heirs such as called for equalization.
We see no necessity of debating these questions. Suffice it to say that the mother
considered that these advantages were such as called for an equalization, and she made
her donation accordingly; and that therefore her intention was that defendant should
have this property over and above his share in her succession. Whether she was
mistaken or not in supposing the said advantages which her other children had
received were such as, in law or in fact, called for an equalization, is absolutely
immaterial, since we are concerned only with her intention, and such intention is
clearly and unmistakably expressed, and it is that defendant should have this property
in addition to his share in her succession. Perhaps she made the donation for the very
reason that she knew that the advantages received by her other children were not
collatable, and that therefore something should be done by her to bring about an
equality which was demanded by equity, but not exigible as a matter of legal right.
________
SH 59.2. GM and GF have a son, S, and two daughters, D1 and D2. S, in turn, has several children, GCs.
Before they die, GM and GF bestow a number of gratuities on S. GM also gives a diamond ring worth
$10,000 to D1. GM and GF then make out testaments in which they leave the entire disposable portion to
D1 and D2. Their purpose, they said, was to assure "that our three children would share equally at the time
of our deaths, in the estate we had acquired together." To do that, they explained, they had to leave more
to the daughters than to the son, for the son had already received much of his share in advance. Then first
GF and S and later GM die. D1 contends that the testament of GM dispensed her from her duty to collate
the ring. Will she win? Why or why not? Review Succession of Fakier, reproduced above at pp. 529-33.
e] Limit: disposable portion
SH 60. M has two children, A and B. Before her death, M donates her home--her only real asset--to
A. In the act of donation, M expressly relieves A of the duty to collate. Then M dies. Her net worth at
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____________________________ PART II: SUCCESSIONS ____________________________
death, exclusive of the home, is $0. B then provokes an administration of the succession and, in connection
therewith, demands that A collate the home. What result? Why? See CC art. 1231.
d
Execution
1)
In general
Judging from the text of CC art. 1251, one would have to conclude that there are two and only two
ways of discharging the duty to collate and that these two ways are called, respectively, “in kind” and “by
taking less.” Yet even a cursory survey of the articles that follow reveals that there is still another possible
way, namely, collation by payment of money. See. e.g., CC arts.1277 & 1288.
In contemporary French doctrine, this third mode of collation and the mode of “taking less,” because
of their obvious affinities to each other, are usually treated as two species of a single genre, called
“collation by value,” which is then juxtaposed against “collation in kind” or, as the French sometimes call
it, “collation by nature.” See, e.g., Alex Weill & François Terré, DROIT CIVIL: LES SUCCESSIONS – LES
DONATIONS § 898, at 866 (2d éd. 1988). The presentation of the modes of collation that follows is based on
this classification scheme.
2)
Modes
a)
Collation by value: taking less / payment of money
1]
Definition: "when the donee diminishes the portion he inherits, in
proportion to the value of the object he has received, and takes so
much less from the surplus of the effects" (CC art. 1253)
2]
Mechanism
a]
Determination of the value due
1}
2}
Date of evaluation
a}
Rule: "The right to demand collation . . . applies
with respect to gifts . . . valued as of the date of the
gift." CC art. 1235 (rev. 1996).
b}
Scope
Adjustments to value
a}
Deductions for expenses
1]
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Principle: The collator can deduct from the
amount due the value of certain authorized
expenses he has incurred on account of the
____________________________ PART II: SUCCESSIONS ____________________________
property (CC art. 1269)
2]
b}
Covered expenses: necessary expenses (CC
art. 1257)
Reformation of value to price received in forced
sale
SH 61. M has two sons, A and B. Two years before her death, M gives A a tract of land worth
$50,000. One year later, the government expropriates the land to build a highway. In the condemnation
proceedings, he's awarded $40,000. M dies. B demands that A collate the land. How much must he pay?
Why? See CC art. 1271.
b]
Regulation of the value due
1}
How value is given
a}
Taking less
SH 62.1. M has two sons, A & B. Two years before her death, M gives A a tract of land worth
$50,000. M dies. Aside from the land, she leaves, at death, an estate with a net worth of $150,000. B
demands that A collate the land, which A elects to do by value. How does A do it? When he does it, what
does he get? Explain.
b}
Paying money
1/
When required
SH 62.2. The same as before (SH 62.1), except that, this time, M leaves, at death, an estate with a net
worth of $10,000. Again, A elects to collate by value. How does he do it now? When he does it, what does
it cost him? Explain. See CC art. 1277.
2/ When due
SH 62.3. The same as before (SH 62.2). How long does A have to pay? Why? Can he extend the
time for payment? Why or why not? If so, how? See CC art. 1278.
3/ How secured
SH 62.4. The same as before (SH 62.2), except that A doesn't pay. What, if anything, can B do?
Why? See CC art. 1279.
2}
How value is distributed
a}
Methods
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1/
In kind
a/
Deduction
1
Exposition
2 Illustration
SH 65.1. F has 3 daughters, A, B, & C. Two years before his death, F gives A a tract of land worth
$100,000. F dies. Aside from the land, she leaves, at death, an estate with a net worth of $200,000, which
consists of (i) a tract of land worth $50,000, (ii) an antique car worth $50,000, and a house worth $100,000.
B & C demand that A collate the land, which A elects to do by value. A determination is made that B
and C are to receive this value by deduction. How would that work? Explain.
b/ Imputation
1
Exposition
2 Illustration
SH 65.2. The same as before, except that, now, the decision is made to give B and C the value by
imputation. How would that work? Explain.
2/ In money (liquidation)
a/
Exposition
b/ Illustration
SH 65.3. The same as before, except that, now, the decision is made to give B and C the value in
money. How would that work? Explain.
b}
Option
1/
Availability
a/
General rule: option
b/ Exceptions
1
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Deduction precluded where
assets left at death don't "fit"
distribution Rqs
____________________________ PART II: SUCCESSIONS ____________________________
2 Imputation precluded where
a Assets left at death don't fit
distribution Rqs
b Consent of collator and
collatees is not unanimous
3 Liquidation precluded where
right to choose prescribes
2/ Relativity
a/
General rule: the option is relative to
each collatee, i.e., one may choose one
option and the others another
b/ Exception: imputation RQs agreement
of all collatees
3/ Procedure:
a/
General rule: free choice at any time
b/ Exception: forced choice
1
Collator demands choice
2 Collatees must choose within 3
days
b)
Collation by nature: in kind return
1]
Definition (CC art. 1254)
2]
Mechanism
a]
Physical return
b]
Adjustments
1}
Expenses (CC arts. 1256 & 1257)
a}
Principle
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b}
3)
2}
Improvements (CC art. 1258)
3}
Mortgages (CC art. 1264)
4}
Damage (CC art. 1260)
Options
a)
General rule: option
b)
Exceptions
*
Taking less is forced:
1]
2]
e
Covered expenses: useful and necessary
By law
a]
Movables
b]
Destruction of property
c]
Alienation of property
d]
Excess of disposable portion/inconvenience in separation
By will
Extinction
1)
Common modes
a)
Prescription
SH 66. F has three children, A, B, and C. To A & B, F "sells" a tract of land. Though the land is worth
$12,000, F charges only $1200. F dies. Twelve years pass. C, finding himself in desperate need of cash,
provokes an administration of the estate and, in connection therewith, demands that A and B collate the
tract of land. Is C entitled to obtain collation? Why or why not? See CC art. 3499 & the jurisprudence
that follows:
________
Succession of Webre,
247 La. 461, 172 So.2d 285 (1965)
SANDERS, J.
...
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____________________________ PART II: SUCCESSIONS ____________________________
It is evident that co-heirs are co-owners in indivision from the moment of the
death of the deceased and that they do not become such by virtue of the judgment of
possession. Although collation is said to be due "only to the succession of the donor,"
what is actually meant is, of course, that collation is to be made to the mass of the
succession as defined in Art. 872, that is, to the "estate which a person leaves after his
death." It seems inaccurate to say, therefore, that the heirs become co-proprietors of
the property which before judgment of possession belonged to the succession. Cf.
Succession of Delesdernier, 184 So.2d 37 (La. App. 1966), wherein the court held that
a petition for collation came too late as to valid donations made by the deceased to the
co-heirs, but that the plaintiff had the right to reopen the succession in order to include
in the inventory of the effects thereof property alleged to have been the object of
simulations.
________
b)
1]
Term: 10 years
2]
Commencement: opening of succession (death)
Renunciation (doctrinal)
1]
Definition: abandonment of a right
2]
Timing: after the succession had been opened
3]
Prerequisites:
a]
b]
4]
2)
Substantive
1}
Capacity
2}
Consent (free)
Formal: express or tacit
Modalities
a]
Right itself
b]
Right to a particular mode of execution
Unique mode: judgment of possession
SH 67. F has three children, A, B, and C. Before he dies, he sells a tract of land to A. Though the land
is worth $3000, F charges only $300. Then F dies. Soon thereafter B and C provoke an administration, in
the course of which they and A accept the succession unconditionally and at the conclusion of which the
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____________________________ PART II: SUCCESSIONS ____________________________
court issues a judgment of possession (JOP) putting them into possession of F's property. The descriptive list
of F's assets does not include the tract of land. A few months later, it dawns on B and C that the tract of
land should have been included on the descriptive list and, beyond that, distributed among them in equal
shares. They then petition the court to reopen the proceedings and, in connection therewith, demand
collation and partition of the land. If you were counsel for A, what defense would you raise? On what
ground? Explain. See the doctrine and the jurisprudence that follow:
________
Cynthia Samuel, Katherine S. Spaht, & Cynthia Picou,
SUCCESSIONS & DONATIONS: CASES & READINGS 159-160 (Fall 2000)
[i Prescriptive period; commencement. – ] Collation is subject to a ten year
prescription period running from the death of the donor. Kinney v. Kinney, 150 So.2d
671 (La. App. 3d Cir. 1963).
[ii. Effect of judgment of possession on right to demand collation. –] In Doll v.
Doll, 206 La. 550, 19 So.2d 249, in commenting on the right of collation, stated:
"Collation is the returning to the estate of a deceased person any gifts
or advances which any of the descendent heirs may have received by
donation or otherwise during the lifetime of the ancestor from whom the
heirs inherit. * * * This is explained in Art. 1227 of the Civil Code, where
it is declared that the purpose of the collation is `in order that such property
[collated] may be divided together with the other effects of the succession.'
* * * But a demand for collation cannot he made in a suit for a partition of
property belonging to co-owners or co-proprietors, and not to a succession.
If the descendant heirs of a deceased person accept his or her succession
unconditionally and obtain a judgment sending them into possession of the
estate as owners, and thus close the succession, the heirs are thenceforth coproprietors of the property theretofore belonging to the succession - in the
same way as if they had acquired their joint ownership by purchase instead
of acquiring it by inheritance. * * * It is so declared in Art. 1242 of the Civil
Code, thus: `The collation is made only to the succession of the donor.'"
[On this basis, the] Doll [court] held that a demand for collation made after the
judgment of possession albeit within the ten year prescriptive period, was too late.
In connection with the rule in Doll v. Doll, consider the following: (1) The
concept that a succession is a fictitious entity which represents the deceased until
delivery of the effects thereof to the heir (see Las Siete Partidas 6.14.1 and C.C. (1808)
p. 162, Art. 74) was discarded in favor of the French doctrine "le mort saisit le vif" in
the Code of 1825. See R.C.C. Arts. 940, 944, 1292. This last article provides: "When
a person, at his decease, leaves several heirs, each of them becomes an undivided
proprietor of the effects of the succession, for the part or portion coming to him, which
forms among the heirs a community of property, as long as it remains undivided." (2)
Under Art. 872 of the Civil Code, the term "succession" signifies also the estate, rights
and charges which a person leaves after his death * * *." (3) A judgment of
possession is not translative of ownership and therefore it cannot form the basis for
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____________________________ PART II: SUCCESSIONS ____________________________
acquisitive prescription. Tyler v. Lewis, 143 La, 229, 78 So. 477 (1918); Everett v.
Clayton, 211 La. 211, 29 So.2d 769 (1947). (4) The judgment of possession is only
prima facie evidence of the relationship to the deceased of the parties recognized
therein as the heirs or legatees, and of their rights to the possession of the property that
belonged to the deceased at the time of his death. La. C.C.P. Art. 3062. Actually,
then, the heir acquires nothing by the judgment of possession that was not already his
by operation of law. (But Cf. La. R.S. 9:5630 providing that the right of an heir who
has been excluded from a judgment of possession to claim immovable property of the
succession from a third party onerous transferee prescribes in 2 years; and All-State
Credit Plan Inc. v. Ratliff, 279 So.2d 660 (La. 1972) interpreting this statute as making
an ex-parte judgment of possession translative of title where third persons are
involved. When Art. 1242 provides that collation is made only to the succession of the
donor, it simply means that the subject of the donation is returned to the "estate" that
the deceased left at his death.
Doll treats the succession as though it had identity. The La. Civil Code of 1808
abrogated the concept of the succession as a legal entity. The articles on partition of
the succession indicate that it is at this point [ie., partition] that collation is due. Doll,
clearly wrong, has never been overruled.
[iii.] Prescription and demand for collation[. – ] It is evident that co-heirs are coowners in indivision from the moment of the death of the deceased and that they do
not become such by virtue of the judgment of possession. Although collation is said to
be due “only to the succession of the donor,” what is actually meant is, of course, that
collation is to be made to the mass of the succession as defined in Art. 872, that is, to
the “estate which a person leaves after his death.” It seems inaccurate to say,
therefore, that the heirs become co-proprietors of the property which before judgment
of possession belonged to the succession. Cf. Succession of Delesdernier, 184 So. 2d
37 (La. App. 1966), wherein the court held that a petition for collation came too late as
to valid donations made by the deceased to the co-heirs, but that the plaintiff had the
right to reopen the succession in order to include in the inventory of the effects thereof
property alleged to have been the object of simulations.
________
Succession of Delesdernier,
184 So.2d 37 (La. App. 4th Cir. 1966)
BARNETTE, J.
...
It is firmly established in the jurisprudence of this State that collation cannot be
demanded after a succession has been closed by a judgment sending the heirs in
possession. Succession of McGeary, 220 La. 391, 56 So.2d 727 (1951); Doll v. Doll,
206 La. 550, 19 So.2d 249 (1944). If, however, there are nullities in the succession
proceedings and the judgment therein is attacked and set aside because of those
nullities, the right to demand collation would not be precluded by the former judgment.
Obviously, if the judgment of possession is a nullity, legal effects would not flow from
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____________________________ PART II: SUCCESSIONS ____________________________
it.
Plaintiff here has alleged many nullities, not in the succession proceedings
attacked, but in acts of purported transfer of certain property, the formation of the
family corporation, and her tutorship proceedings. These alleged acts of nullity might
be reasons or causes of action upon which to demand collation if there had been no
judgment of possession, but they do not strike at the validity of the succession
proceedings themselves. We find no allegation in any of the numerous pleadings in
these consolidated cases setting forth a cause or right of action to set aside or annul the
judgments sending the heirs in possession in either succession. We must hold,
therefore, that the plaintiff has no cause or right of action to demand collation in either
succession.
Plaintiff has alleged, however, that certain property rightfully belonging to the
succession of her grandfather George W. Delesdernier was omitted, not included in the
inventory, and to this extent the succession should be reopened in order that the
omitted property might be distributed among his heirs in their just proportion. This
does not imply a nullity, but rather an incompleteness in the succession proceedings
and an amendment to the judgment of possession would be in order. Express authority
for this procedure is found in LSA-C.C.P. Art. 3393. Therefore, plaintiff should have
an opportunity to point out such omissions on remand and petition for a supplemental
or amending judgment of possession. . . .
________
NOTE
The law of collation in its “revised” form can, on occasion, produce results that, to say the
least, are “anomalous,” at least if one takes seriously the notion that the very point of collation is
to assure that “equality which must naturally be observed between children.” CC art. 1229.
Consider the following hypotheticals.
________
SH 67. A few months before his death, Pascal gives a horse worth $12,000 to his son, Ti-Boy, and a
car worth $20,000 to his daughter, Lil-Fille. At his death, Pascal leaves assets worth $8,000 and both his
children are under the age of 24. Can Ti-Boy demand that Lil-Fille collate the car? Why or why not?
Can Lil-Fille demand that Ti-Boy collate the horse? Why or why not? At the end of the day, how much
“value” will each “get” from Pascal’s “estate”? Will the values be equal?
SH 67. The same as before (SH 67), except that Ti-Boy is 25 when Pascal dies (Lil-Fille is still
under 24). What result now? Will the children now end up with equal shares of the estate at the end of
the day? Why or why not?
2
Partition
a
Types of partition (CC arts. 1295 & 1296)
b
Subjects (CC art. 1307, 1318, 1329)
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____________________________ PART II: SUCCESSIONS ____________________________
c
Procedure
1]
Inventory (CC art. 1325)
2]
3]
Suit (CC art. 1329)
Collation (CC arts. 1331-1334)
4]
Mode of partition (CC arts. 1336)
5]
Notice (CC art. 1347)
6]
Settlement of accounts (CC arts. 1349-1354)
7]
Formation of the active mass (CC arts. 1355-1360)
8]
Division of property into “lots” (CC arts. 1364-1367)
SH 67. At his death, Théophile, a long-time widower, leaves the following assets: (i) a trailer worth
$80,000; (ii) an apartment complex worth $100,000; (iii) a hunting camp worth $50,000; (iv) a combine
worth $50,000; and (v) $20,000 cash. He is survived by his three children, A, B, and C, who cannot agree
on how his assets should be partitioned. What should be done? Why?
9]
Delivery of property (CC art. 1379)
10] Amendment (CC art. 1380)
d
Warranty (CC arts. 1384, 1387, 1388)
e
Rescission (CC arts. 1399-1401, 1413)
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