Succession of Dupre , 1905 La. App. LEXIS 99 ( 1905 )

DUFOUR, J..

Widow Eugene Dupre filed a 'rule 'on 'the Ad-mínístrator o£ the Succession, claiming certain inventoried movables as manual gifts from 'h'er deceased husband..

Counsel for defendant have set up' in defence of the claim the-opinions of the French commentators, the research and learning, displayed bv counsel are highly commendable.

But' the investigation of’ the wealth of authority to which we-are- referred, though most interesting, would be purely academic-' al here, because the article upon whidh our decision must be rested .is not found in the Code Napoleon..

Art. 1539, R. C. C., says:

‘'The' manual gift, that is the giving of corporeal movable-effects, accompanied by a real delivery, is not subject to any formality/7

As a general answer to defendant's argument we may say that furniture is such a movable (43 An. 144), a husband may make such a gift, either out of community funds or his separate resources (Journal du Falais 1894, p. 47), and delivery at the matrimonial domicile must, in the nature of things, be a real delivery, for, where else could it be made, for the gift to be serviceable'.

The presumption is that, upon the dissolution of the marriage', all the effects which husband and wife reciprocally possess belong to the ccmmunhy, and the burden of proof is on the wife to show satisfactorily that there was a manual gift. (R. C. C. 2405.)

The only question here is one of fact; has she sucessfully borne that burden?

Tt is true, as stated by counsel, that testimony as to what a dead man said or did is weak evidence. But this simply means that testimony must carefully be scrutinized and weighed.

The rule is a wise and salutary one, hut it cannot be construed so as to make it impossible for a living person to successfully assert his legal right merely because his debtor is dead.

June 20th, 1905. Rehearing refused, June 29th, 1905.. Writ refused by Supreme -Court, August 14th, 1905-.

Plaintiff in rule abandoned -alt 'the 'trial Per claim to 'several .-articles mentioned in the rule, and the trial judge rejected others.

The piano 'is .said 'by her to have been a birthday surprise to her on the part of her husband, and Bríckell, who 'sold Dupre the piano, corroborates her with the statement that -Dupre told 'him to •deliver it on a fixed dajr because it was intended as a birthday present to his wife.

As to the furniture, her testimony that it was a manual gift is corroborated by Stern, the auctioneer, from whom it was bought, •and by Otto Dupre, brother of the deceased, in whose -charge the latter placed the matter for attention.

The trial judge believed mover and her witnesses, and considered that sufficient proof of the 'manual gift had been made;

And so do we.

The suggestion that, because Dupre insured the articles in his name, he thereby revoked the donation, is not worthy of serious •consideration. It smacks of the drowning man’s attempt to grasp for a straw-.

Judgment affirmed.