Tompkins v. Prentice , 12 La. Ann. 465 ( 1857 )

Merrick, C. J.

The action of the creditors in avoidance of the contracts of their debtors, is allowed by the Code for the purpose of annulling some fraudulent act of the debtor himself.

But in this case the principal act complained of, is that of Joseph Prentice in making a will, by which he conveyed his whole estate to his mother, brother and sister. Had he given one-sixth of his estate to his father, Horace Prentice, there would have been no pretence for the institution of this action.

But Joseph Prentice was not the debtor of the plaintiffs. He owed them nothing.

By Article 1491 O. C. it is provided that on the death of the donor or testator, the reduction of the donation, whether inter vivos or mortis ecmsa, can be sued for only by forced heirs or by their heirs or assigns.

By Article 3522, the term “assigns” is defined to mean those whose rights have been transmitted by particular title, such as sale, donation legacy, transfer and cession. The French word ay ant-cause is defined in the same language. Moreover, the Article declares that whenever the terms of law employed in the Code have not been particularly defined therein, they shall be understood as defined in said Article. See 8 Toul., No. 245.

Now the law-giver must be understood to have used the word in the sense defined, because in the concluding portion of the Article the word “ creditor” is used in contrast with the word “ assigns.”

Possibly the law-giver may have preferred to give effect to the wishes of the testator and allow his estate to take the direction he had indicated, rather than subject it to the seizure of creditors of an heir who did not feel himsejf aggrieved by the universal legacy to another.

In another place the Code says, that there are rights of the debtor which the creditors cannot exercise, even should he refuse to avail himself of them. They cannot require the separation of property between husband and wife, nor can they oblige their debtor to accept a donation inter vivos made to him, nor accept it in his stead. Neither can they call on a co-heir to collate when such debtor has not exercised that right. C. C. 1986, 1987. Article No. 1491 has but added another case of like nature to the list.

Had this very case been in the mind of the law-giver, it is not unreasonable to suppose that in the controversy to the estate of the testator between the mother, brother and sister of the deceased, and the creditors of the father, that the former would have been preferred. The letter of the law protects them in their possession under the will so long as the father of the deceased does not choose to disturb the dispositions of the will.

In our opinion what was in the mind of the compiler^Df the Napoleon Code, or what has been said by the French commentators, ought not to preponderate against the express definition of a term given by the compilers of our own Oode, and sanctioned by the law-making power.

Judgment affirmed.