Eskridge vs. Farrar.

ants what they consider they are entitled to under the provisions of that probated and subsisting will.

Defendants appeared in Court through an agent, and—for answer to plaintiffs' demand-contend that the will of John Perkins senior is null and void, because it contains a prohibited substitution, and also because the particular legacies are largely in excess of the disposable portion.

They allege-besides-that, in April 1857, the deceased donated to his son John the Somerset estate, then valued at more than six hundred thousand dollars, and that one of the conditions of that donation was that his said son should-at the death of the donor-pay to them-the respondents-partly as a gift from him to them, and partly in satisfaction of their inheritance from their grandmother, the deceased wife of the said John Perkins senior, the sum of two hundred and forty thousand dollars. That, on the 11th of August 1869, in compliance with that condition, the donee of the Somerset estate sold them four of the plantations comprised in that estate, in payment of the aforesaid claim, which is specially referred to and re-asserted in the deceased's will.

In bar of plaintiffs' demand, respondents plead the prescription "of one and ten years, and prescription generally."

In the pleadings and in the arguments, two principal questions are presented:

1. Was the donation of April 1857, from John Perkins to his son, revoked either before or since the death of the donor?

2. Do defendants derive their title to the Somerset estate from that donation and the dation in payment from John Perkins to them, or from their ancestor's will?

If we could look beyond the evidence introduced by the parties, it would not be difficult to find that, in December 1865, John Perkins senior brought suit to revoke the donation made by him to his son in April 1857, that-by a decree of the 13th district court, rendered in November 1866, said donation was revoked-that said decree was reversed by this court in 1868, and the case remanded for the express purpose of allowing the creditors of John Perkins junior to intervene in that suit; and-here-returning to the Record, what do we find? That-in his last will, which bears the date of the 11th of June 1866, John Perkins senior declares that the Somerset estate had reverted to him and that he had sued to recover the same, on the ground of the non-fulfillment by his son of the conditions of the donation. He died six days after the signing of the first decree by which that donation was revoked.

What became of the twice remanded case? We are not informed;

Eskridge vs. Farrar.

but, on the 24th of April 1874-defendants, through their agent, ratified a compromise previously made by the executors of their grandfather's will, with the creditors of John Perkins junior. That compromise is not in the record. In and by the same act, defendants accepted from said executors, "all and singular the property of the deceased's succession, consisting of what is known as the Somerset estate, together with all and singular the personal property belonging to said estate and theret attached, as well as all other property and effects of said sucession under the administration and control of the said executors." When this delivery was made and accepted, Somerset had been and stood inventoried as belonging to the succession of John Perkins senior, since more than seven years; and this delivery was made and accepted on the express condition that defendants--as heirs and universal legates of said deceased-would pay all the debts of the succession and discharge the legacies "in so far as the same are legal and binding on the property of said estate."

On the 20th of May 1874-less than a month after they had been placed in possession of Somerset, defendants mortgaged it to Mrs. Chaplain, to secure a loan of $28,000, and—in the act passed to that effect -mention is made that said property is encumbered with certain legacies well known to the mortgagee." The legacies thus referred to are certainly those made by John Perkins senior. If defendants acquired their title under the donation of 1857, how explain their assumption of debts and charges not imposed by that donation? How explain that they did not themselves collect, and allowed the executors of the now assailed will to receive and dispose of the revenues of Somerset, and sanctioned-not only the receipt, but the disposition made of those rev enues-by their approval of the account rendered at their own demand by said executors?

It is contended, with a great deal of force and ingenuity that Somerset did not belong to the succession of John Perkins senior-that said succession had no real property in Louisiana, (and—if it did now own Somerset-this is true)--and that, in accepting from the executors the surrender of that estate, defendants merely took that whichsince 1869-had been their property, under the dation in payment from John Perkins jr to them. If so, we are at a loss to understand why they incurred the trouble and expense of appointing an agent to settlein this State-a succession which owned nothing in this State. That supposition can not be reconciled with and is repelled by every word of defendant's mandate to Farrar.

On March 25th, 1874, these defendants went before a notary in Paris, and appointed Judge E. D. Farrar their agent and attorney in fact, for the reasons and purposes set forth by them as follows:

66

Eskridge vs. Farrar,

'Whereas, the said Nora M. Perkins, Annie William Perkins and Blanche Z. Perkins are the universal heirs and legatees of John Perkins, Sr., deceased, whose estate has been opened and is now being administered in the State of Louisiana by Abner N. Ogden and Josiah Stansbrough, executors of the last will of said John Perkins, deceased;

And, whereas, it is desirable that said administration should be closed and terminated, and the property of said estate turned over and surrendered to said heirs;

And, whereas, there are debts due by and outstanding against said estate, and also legacies in favor of divers and sundry persons, and among them to Ellen M. Perkins, which legacies are, in whole or in part, unpaid;

And, whereas, certain obligations have been assumed by these appearers for the payment of certain sums to divers creditors of John Perkins, Jr., as shown and evidenced by an act of compromise with said creditors, of date in the year 1871;

And, whereas, in order to the prompt and speedy settlement of said debts and legacies, it may become necessary to dispose of portions of the real estate of said succession, and enter into compromises and transactions with said creditors and legatees;

Now, therefore, we do by these presents confer upon our said agent, Edgar D. Farrar, full and plenary power for the purpose herein above set forth, and authorize him particularly and especially,

*

1st. To institute and prosecute, in our names, all suits, etc. 2d. To represent us, judicially or otherwise, in the final settlements of the accounts of said executors, and to compromise and compound with them, to grant them acquittances and discharges from their trusts in our names and behalfs, and to receive and receipt for the property of said estate.

3d. To acknowledge and bind us for the payment of any and all legacies and debts due by us or from the estate of said John Perkins, deceased, etc. *

*

*

4th. To sell or give in payment unto said legatees or creditors, or to sell to other persons such portions of the real estate aforesaid, as he may deem proper, etc. *

*

*

5th. To lease out any and all lands, etc.

*

*

*

6th. To borrow money and contract debts, etc., and to execute mortgages to secure same.

What real estate of said succession, did defendants themselves authorize their agent to receive from the executors and to dispose of, in order to effect the prompt and speedy settlement of the debts and legacies alluded to in their procuration? It was undoubtedly the Somerset estate, or the whole of that power of attorney is meaningless.

Eskridge vs. Farrar.

We have referred to, but did not consider the evidence whe might have been adduced of the institution of a suit to revoke the donation of 1857-but, taking the facts as they were elicited on the trad

-we must consider and decide whether a suit commenced by a dat.. for the revocation of a donation, on account of the non-performance of the conditions therein imposed, can be prosecuted-after his deaththe executor to whom he has given the seizin of all the estate of s succession. After answer filed, actions do not abate by the death of any of the parties, and the executor is bound to administer on all the prop erty of a succession which is expressly declared in the will to belong the testator, even on property claimed under an adverse title, and may maintain an action to annul a donation inter viros made by the testat C. P. 21; 6 L. R. 99; 7 L. R. 32.

In this instance, have the executors done so? Have they continued the suit which-in his testament-the deceased declared that he la brought and which is alluded to in Judge Ogden's letter to Eskridg If they have, what has been the result? Has the revocation been pro nounced? This important fact is commented upon by plaintifs and defendants, asserted by the former, denied by the latter, but neither fully established by the first, nor completely contradicted by the others. and we are left in presence of the deceased's declaration that Somerset has reverted to him, and of the acceptance by and delivery to defenc ants of the legacy which the will contains in their favor.

Have they not-by that acceptance by their declarations and their acts-assumed the quality of universal legatees or legatees under at universal title of John Perkins senior? If so, they are bound for the debts and charges of the succession, and-saving the case of reduction, for the payment of the particular legacies.

C. C. 1611 (1693) 1614 (1606); 2 R. R. 382.

It is not alleged that their acceptance was the consequence of any error of fact-of any fraud practiced, or violence exercised against them, and they can not now dispute its validity. They have-in judicial preceedings and in an authentic act-assumed the quality of heirs and universal legatees, and their acceptance is the simple and express one referred to in the 988th article of the Revised Code.

Defendants' counsel rely on article 1890 of said Code, which provides: "that a person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himsel of the advantage stipulated in his favor, the contract can not be revoked.”

Applying that article to this case, they say: the stipulation made in favor of defendants in the donation of 1857, was accepted by their tutrix, and their interest can not be affected by any judgment of revoca

Eskridge vs. Farrar.

tion that may have been rendered in a suit to which they were not parties.

If that stipulation stood alone: were it the only charge imposed upon the donee, that argument would present an important question; but the first, the paramount obligation of the donation from the father to the son, was that-from the first of January 1858-the son would pay to his father, during the natural life of the latter, an annuity of $15,000, and it is admitted that-at the death of the donor-of the ten instalments of that annuity which had then matured, not one had been paid. The donee was, or it appears was then owing the donor one hundred and fifty thousand dollars; and-inasmuch as the conditions of the donation had not been complied with, he was not the incommutable owner of the property comprised in the donation.

Demolombe, vol. 20, p. 573, number 610.

He--nevertheless-before he had himself acquired an indefeasible title to the property which he held under a conditional donation, transferred it to defendants who had thereon but an eventual right, one which depended on the execution by the donee of his principal obligation in that quality, which was to pay to his father an annuity of $15,000. When was that transfer made? After the institution of the suit in revocation, and it may be-after those who opposed it had expressly or tacitly assented to that revocation, after a revocation which—we presume must have been contested by others than the defendants-as, otherwise the evidence of their contestation and of its results would have been introduced on the trial.

Demolombe-vol 20, p. 534 and 535—said: "Les charges, dans une donation, n'étant pas la cause principale de l'opération, mais ne formant que des clauses accessoires, on aurait pu douter si leur inexecution pouvait ouvrir, au profit du donateur, une action en révocation, et c'est ce doute que le législateur a résolu, etc.”—and, at page 562—“Que le donateur ne puisse pas demander directement l'exécution des charges, qui n'ont pas été stipulées dans son intérêt, cela se conçoit; mais c'est là précisément un motif pour qu'il puisse demander la révocation pour cause d'inexécution de ces charges: aussi le texte absolu des articles 953 et 954 du C. N. lui accorde-t-il ce droit, pour tous les cas, sans distinction."

The same author indicates the difference between the revocation and dissolution of an act of donation.

"D'une part, on a dit qu'autre chose est la résolution de la donation, autre chose la révocation! Le donateur, qui stipule une condition résolutoire-comme, par exemple-le droit de retour, ne révoque point par là sa libéralité: il en limite sculement l'étendue par une clause concomitante et constitutive de sa libéralité elle même; et-dans ce cas-la donation,