Table of Contents
SECTION II - OF THE COLLATION OF GOODS
Art. 192. The collation of goods is the supposed or real return which an heir makes to the mass of some property, which he received in advancement or otherwise, in order that such property may be partaken as well as the other effects of the succession.
Art. 193. Children or grand children coming to the succession of their fathers, mothers, or other ascendants, must collect what they have received from them by donation inter vivos either directly or indirectly; and they cannot claim the legacies made to them by such ascendants, unless the said ascendants should have ordered the contrary.
Art. 194. The obligation of collating is founded on the equality which must naturally be observed between children who come to partake among them, the succession of their father, mother, and other ascendants; and also on the presumption that what was given or bequeathed to children by their ascendants, was so disposed of, in advancement of what they could one day expect from their succession.
This rule obtains whether the said children or descendants succeed to their ascendants, as testamentary or as legal heirs, and whether they did accept the succession purely and simply, or with the benefit of an inventory.
Art. 195. The collation must take place whether the donor has formally ordered it, or has remained silent on the subject; for the collation is always presumed where it has not been expressly forbidden.
Art. 196. But things given or bequeathed to children, or other descendants by their ascendants, to remain in their possession as an advantage over and above the other children or descendants their co-heirs, shall not be collated, it the donor has formally expressed his will that what he thus gave was an advantage or extra part or that it should not be subjected to collation.
The declaration that the gift or legacy is made as an advantage or extra part may be included in the instrument where such disposition is contained, or in a separate instrument, provided that in this last case, such instrument be executed before a notary and two witnesses.
Art. 197. If upon calculation of the value of advantages thus made and of the other effects remaining in the succession, such remaining part should prove insufficient to give to the other children their legitime or filial portion, the donee would then be obliged to collate the sum by him received as far as necessary to complete the said filial portion; and in the said calculation of the legitime or filial portion, the property given or bequeathed by the ascendants not only to their children, but even to all other persons, whether relations or strangers, must be included.
Art. 198. The obligation of collating is particular to children or descendants, succeeding to their fathers, or mothers or other ascendants, and does not extend further.
Thus ascendants called to inherit from their children and lawful descendants, and collaterals or strangers, to whom an inheritance accrues by testament, or by law, are not obliged to collate to their co-heirs, the gifts and legacies, which they may have received from the deceased, unless the donor should have submitted them by express words to such collation.
Art. 199. Of the children or descendants, those only are obliged to collate, who have a right of legitime in the succession of their fathers or mothers or other ascendants.
Therefore natural children inheriting from their mother or father in the cases prescribed by law, are liable to any collation between them, if they have not been expressly subjected to it by the donor, because the law gives them no right of legitime in their successions.
Art. 200. If children or other lawful descendants holding property or legacies to be collated, should renounce the inheritance of the ascendants from whom they have received such property, they may retain the gift or claim the legacy to them made, without being subject to any collation.
If however the remaining amount of the inheritance should not be sufficient for the legitime of the other children, including in the estate of the deceased, the property which the person renouncing would have collated, if he had become heir, he would then be obliged to collate up to the sum necessary to complete the said legitime.
Art. 201. To make descendants liable to collation, as prescribed in the preceding articles, they must come as heirs in the succession of the ascendant from whom they have received immediately the gift or legacy.
Therefore grand children to whom some gift was made or some legacy left by their grand father or grand mother, since the death of their father or mother, are obliged to collate, when they are called to the inheritance of the said grand father or grand mother, jointly with the other grand children, or by representation with their uncles or aunts, brothers or sisters of their father or mother, because a legitime or filial portion is due to them in the estate of their grand father or grand mother, on which it is presumed that their said grand father or grand mother had intended to make the said gift or leave the said legacy by anticipation.
Art. 202. But gifts made or legacies left to a grand child by his grand father or grand mother, during the life of his father, are always reputed to be exempt from collation, because while the father is alive, there is no legitime due to the grand child in the estate of his grand father.
The father inheriting from the grand father is not liable to collate the gifts or legacies left to his child.
Art. 203. In like manner the grand child, when inheriting in his own name from the grand father or grand mother, is not obliged to refund the gifts made to his father even though he should have accepted his succession; but if the grand child comes in only by right of representation, he must collate what had been given to his father, even though he should have renounced his inheritance.
Art. 204. What has been said in the three preceding articles, of grand children inheriting from their grand father or grand mother, must be understood of the great grand children and other lawful descendants called to inherit from their ascendants, either in their own name or by right of representation.
Art. 205. The advantage which a father bestows upon his son, though in any other manner than by donation, or legacy, are likewise subject to collation.
Thus when a father has sold a thing to his son at 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 to collation.
The same rule obtains when a father subscribes in favor of his son a feigned obligation, or when upon an account of guardianship, he acknowledges himself debtor of a sum which he does not really owe, or when he does any such like act.
Art. 206. The acts, however, of the ascendants which are beneficial to his descendants, are not all liable to collation; those acts by which the ascendant makes some part of his property to pass into the hands of his descendants by concealed and indirect means are only liable to it; thus there is no collation due where a partnership was bona fide entered into between the ascendant and one of his lawful descendants, when the conditions of such partnership are duly proved.
The same rule applies to all burthensome obligations, and to all mercantile transactions which the son executes with his father, none of which give lieu to collation, unless there has been on the part of the father an express or tacit intention of bestowing an advantage on his son, and there is, by that means, some part of the patrimony of one child taken to increase the patrimony of the other.
Art. 207. There exists however one sort of advantage made by ascendants to their children or lawful descendants, which by their privileged nature, are not subject to collation, though it cannot be said they were not taken out of the mass of the donor's estate.
Thus pensions, aliments and maintenance supplied to children, and books and other expences laid out for their education, are not liable to collation, though a library is.
No collation is due to the wedding clothes and wedding expences: but the trousseau of the daughter is liable to it.
New year's gifts and small presents, money given to the minor and by him spent and even money given to the son of age, for play and for his pleasures, are not subject to collation.
Art. 208. But the child is obliged to collate what has been spent to provide him a living or instruct him in some trade or profession or to give him a dowry or marriage portion.
Collation must likewise be made of what the father paid either for the ransom of his son prisoner of war or for any fine or civil reparation to which he might have been sentenced.
Art. 209. In order to the execution of the collation, it must be first considered whether the things subject to it, are moveable or immoveable.
Art. 210. In the first case, if the donee, at the time of the partition, is in possession of the immoveables to him given, he is bound to collate them in nature, or to take so much less out of the other immoveables of the succession, equal in value.
Art. 211. To the donee who collates in nature the immoveable to him given, reimbursement must be made by his co-heirs of all the necessary and useful expences by him made for the improvement of such immoveable.
Art. 212. In the interval between the donation and the partition, the immoveable given is at the risk of the succession; in such a manner that if it perishes fortuitously or without the fault of the donee, he shall not be bound to bring in the value of it.
Art. 213. When the collation of the immoveable is made in nature, if it be improved, it must be considered whether such improvements are natural or obtained by industry, that is to say, whether they have cost nothing to the donee, or are the fruits of the expences by him made.
If the said improvements are natural, as if an alluvion has been added to the tenement, or the timber has increased over it, &c. such improvements are pure gain to the succession and belong to it.
If they were obtained by industry, they equally belong to the succession: but as it is not permitted that one should enrich himself at the expence of the other, the donee who has made them, must receive a compensation, not precisely equal to the amount of his expences, but in proportion to the benefit accrued thereby to the succession at the time of the partition.
Art. 214. When an immoveable subject to collation, happens to have suffered diminution or deterioration, if such loss is owing to the fault of the donee, he is accountable for it to the succession; but if it has happened by casualties, the succession must then bear it.
Art. 215. When the donee has alienated the immoveable subject to collation, it must be considered whether he has been compelled to such alienation or has done it voluntarily.
If the alienation had been forced, as for example, if the donee has been compelled to sell his tenement for some object of public utility, his obligation of collating the thing in nature shall be converted into an obligation of collating the price by him received for it.
If the alienation has been voluntary, it shall not suffice for the donee to collate the price by him received for the thing. If the immoveable is increased in value it shall be appraised in its state at the time of the partition; and the donee shall be obliged to collate it not indeed in nature, since it will not be in his power, but at the price of appraisement.
Art. 216. If the tenement has diminished in value by the fault of the donee or of the buyer under him, collation shall be made both of the tenement and of the damages resulting from such deterioration, according to appraisement.
If on the contrary the deterioration has been caused by some casualty, the co-heirs shall have a right to the collation of the value only of the tenement, in its state at the time of the partition, but not of the price which the donee may have received for it.
By the same reason, if the tenement has entirely perished since the alienation without the fault of the buyer, the donee shall be completely freed from the obligation of collating and the whole price of sale shall then remain pure benefit to him.
Art. 217. When the collation is made in nature, the effects are united to the mass of the inheritance, free from all charges created by the donee; but creditors holding mortgages may intervene in the partition, and make opposition to the collation which could injure their rights.
Art. 218. When the gift of an immoveable made to a lawful child or descendant exceeds the portion which the ascendant could legally dispose of the overplus must be brought in nature, if such exceeding part can be separated conveniently.
In the contrary case, if the overplus is of more than the half of the value of the immoveable, the donee shall be bound to collate the whole with reserve to take previously out of the mass the value of the portion that could be disposed of. But if that portion exceeds the half of the value of the immoveable, the donee shall be at liberty to retain such immoveable entire with reserve to take less out of the mass and to give a compensation to his co-heirs in money or otherwise.
Art. 219. The co-heirs who makes the collation in nature, may keep possession of the tenement until final reimbursement of the sum to him due for expences or improvements as above mentioned.
Art. 220. The collation of moveables is not due in nature; but is always made by taking less according to the value of the moveables at the time they were given.
So the donee of the moveable does not owe the thing itself, but the price of it; consequently the moveable is at his risks.
The collation of moveables given shall be made according to the list and estimation of them, which to that effect ought to be annexed to the instrument of donation; and in defect of such list, according to an appraisement made by skillful persons at a just price and without augmentation.
Art. 221. The collation of money given is made by taking less out of the money of the succession.
In case of insufficiency, the donee may dispense himself with collating the money, by abandoning so much on the value of the moveables, and in defect of moveables, on the value of the immoveables of the succession.
Art. 222. The fruits and revenues of things subject to collation are due only from the day on which the succession is opened.
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