DocketNumber: No. 32110.
Citation Numbers: 156 So. 166, 180 La. 35, 1934 La. LEXIS 1485
Judges: Land
Filed Date: 5/21/1934
Status: Precedential
Modified Date: 10/19/2024
At the death of John Joseph Maxwell, Sr., on October 27, 1922, his succession was opened in the civil district court for the parish of Orleans. Under a judgment rendered in the succession proceedings on January 12, 1923, Mrs. Lucy Lenas Maxwell was recognized as his widow in community, and, as such, was placed in possession of one-half interest in his estate, and also of one-fourth interest as legatee, under his last will and testament, of the disposable portion of his estate, or an undivided six-eighths interest in same.
Thomas A. Maxwell, plaintiff, and John Joseph Maxwell, Jr., defendant, were recognized under this judgment as the sole and only heirs of decedent, and, as such, were placed in possession jointly of one-eighth interest each in their father's estate, subject to the usufruct in favor of their mother, Mrs. Lucy Lenas Maxwell.
The present suit was filed April 20, 1932, to annul a sale of certain real estate made by plaintiff's mother to his brother in the year, 1923, on the theory that such sale was actually a donation omnium bonorum, and for an accounting of all sums derived from the property since the sale.
Defendant pleaded exceptions of no cause of action and of prematurity which were maintained by the trial judge, and plaintiff's suit was dismissed. From this judgment, plaintiff has appealed. *Page 37
(1) Article
The right to annul a donation omnium bonorum is clearly personal to the donor, who is alive in this case. The donation was made more than nine years ago and the donor has not seen fit to attack its validity. The Civil Code specifically declares that a donation inter vivos, exceeding the disposable quantum, retains all its effect during the life of the donor. Civ. Code, art.
Plaintiff has no right to attack the donation in question while his mother is alive.
Besides, when the sale attacked in this case as a donation omnium bonorum is compared with the inventory annexed to plaintiff's petition, it appears that, at the time of the donation, the donor had and did not include in same a six-eighths interest in a lot and improvements in the city of New Orleans, valued at $6,000, in household furniture valued at $800, and in Liberty bonds valued at $1,506.87. See Snowden v. Cruse,
(2) Article
Plaintiff, in attacking the sale in this case, alleges that it is a donation in disguise, as *Page 38 no price was paid. It is clear that plaintiff's rights are protected by this article, and that his cause of action can be asserted after his mother's death. Plaintiff has no present interest in the estate of his mother, who is alive, and plaintiff's suit is therefore premature.
Judgment affirmed.