Table of Contents
Download the Table of Contents as a PDF
SECTION 3 - HOW COLLATIONS ARE MADE
Art. 1251. Collations are made in kind or by taking less.
Art. 1252. The collation is made in kind, when the thing which has been given, is delivered up by the donee to be united to the mass of the succession.
Art. 1253. The collation is made by taking less, when the donee diminishes the portion he inherits, in proportion to the value of the object he has received, and takes so much less from the surplus of the effects as is explained in the chapter which treats of partitions.
Art. 1254. In the execution of the collation it must first be considered whether the things subject to it are movables or immovables.
Art. 1255. If an immovable has been given, and the donee hath it in his possession at the time of the partition, he has the choice to make the collation in kind or by taking less, unless the donor has imposed on him the condition of making the collation in kind, in which case it can not be made in any other manner than that prescribed by the donor, unless it be with the consent of the other heirs who must be all of age, present or represented in this State.
Art. 1256. The donee who collates in kind an immovable, which has been given to him, must be reimbursed by his coheirs for the expenses which have improved the estate, in proportion to the increase of value which it has received thereby.
Art. 1257. The coheirs are bound to allow to the donee the necessary expenses which he has incurred for the preservation of the estate, though they may not have augmented its value.
Art. 1258. As to works made on the estate for the mere pleasure of the donee, no reimbursement is due to him for them; he has, however, the right to take them away, if he can do it without injuring the estate, and leave things in the same situation they were at the time of the donation.
Art. 1259. Expenses made on immovable property are distinguished by three kinds: necessary, useful, and those for mere pleasure.
Necessary expenses are those which are indispensable to the preservation of the thing.
Useful expenses are those which increase the value of the immovable property, but without which the estate can be preserved.
Expenses for mere pleasure are those which are only made for the accommodation or convenience of the owner or possessor of the estate, and which do not increase its value.
Art. 1260. The donee, who collates in kind the immovable property given to him, is accountable for the deteriorations and damage which have diminished its value, when caused by his fault or negligence.
Art. 1261. If within the time and in the form prescribed in the chapter which treats of partitions, the donee has made his election to collate in kind the immovable property which has been given to him, and it is afterwards destroyed, without the act or fault of the donee, the loss is borne by the succession, and the donee shall not be bound to collate the value of the property.
Art. 1262. If the immovable property be only destroyed in part, it shall be collated in the state in which it is.
Art. 1263. But if the immovable property is destroyed after the donee has declared that he wishes to collate by taking less, the loss is his, and he is bound to take less from the succession, in the same manner as if the property had not been destroyed.
Art. 1264. When the collation is made in kind, the effects are united to the mass of the succession as they may be burdened with real rights created by operation of law or by onerous title. In such a case, the donee is accountable for the resulting diminution of the value of the immovable. [Amended by Acts 1981, No. 739, §1]
Art. 1265. In the case mentioned in the preceding article, if the property mortgaged, which has been collated in kind, falls by the partition to the donee, the mortgage continues to exist thereon as if it had never been collated; but if the donee receives for his portion other movables or immovables of the succession, the creditor shall have a privilege for the amount of his mortgage on the property which has thus fallen to his debtor by the partition.
Art. 1266. When the gift of immovable property, made to a lawful child or descendant, exceeds the portion which the ascendant could legally dispose of, the donee may make the collation of this excess in kind, if such excess can be separated conveniently.
Art. 1267. If, on the contrary, the retrenchment of the excess over and above the disposable portion can not conveniently be made, the donee is bound to collate the excess by taking less, as is hereafter prescribed for the cases in which the collation is made of immovable property given him otherwise than as advantage or extra portion.
Art. 1268. The donee, who makes the collation in kind of the immovable property given to him, may keep possession of the same until the final reimbursement of the sums to him due for the necessary and useful expenses which he has made thereon, after deducting the amount of the damage the estate has suffered through his fault or neglect, as is before provided.
Art. 1269. When the donee has elected to collate the immovable property given him by taking less on the part which comes to him from the succession, the collation must be made according to the value which the immovable property had at the opening of the succession, a deduction being made for the expenses incurred thereon, in conformity with what has been heretofore prescribed.
Art. 1270. If the donee has voluntarily alienated the immovable property which has been given him, or if he has permitted it to be seized and sold for the payment of his debts, or if it has been destroyed by his fault or negligence, he shall not be the less bound to make the collation of it, according to the value which the immovable would have had at the time of the opening of the succession, deducting expenses, as is provided in the foregoing Article. [Amended by Acts 1981, No. 739, §1]
Art. 1271. But if the donee has been forced to alienate the immovable property, he shall be obliged to collate by taking less the price he has received from this sale and no more.
As, for example, if the donee shall be obliged to submit to a sale of the immovable for some object of public utility, or to discharge a mortgage imposed by the donor, or because the immovable was held in common with another person who has prayed for the sale in order to obtain a partition of it.
Art. 1272. If the immovable property which has been given has been sold by the donee, and afterwards is destroyed by accident in the possession of the purchaser, the donee shall only be obliged to collate by taking less the price he received for the sale.
Art. 1273. When the collation is made by taking less, the coheirs to whom the collation is due have a right to require a sale of the property remaining to the succession, in order to be paid from the proceeds of this sale, not only the collation which is due to them, but the part which comes to them from the surplus of these proceeds, unless they prefer to pay themselves the amount of the collation due to them by taking such movables and immovables of the succession as they may choose, according to the appraisement in the inventory, or the appraisement which serves as a basis to the partition.
Art. 1274. If the coheirs to whom the collation is made by taking less, wish that the effects of the succession be sold, in order that they may be paid what is due them, they are bound to decide thereon in three days from their being notified of the motion of the donee to that effect, before the judge of the partition, otherwise they shall be deprived of this right, and shall be considered as having consented to receive payment of the collation due them in effects and property of the succession, or otherwise from the hands of the donee.
Art. 1275. When the coheirs, thus notified, require the sale of the effects of the succession to pay themselves the collation due them, the sale shall be made at public auction, in the same manner as when it is necessary to sell property held in common, in order to effect a partition.
Art. 1276. If, on the contrary, the coheirs to whom the collation is due prefer to be paid the amount thereof in property and effects of the succession, or are divested of their right to require the sale of these effects, they shall be paid the amount of the collation in movables, immovables and other effects of the succession, in the same manner as is prescribed in the chapter which treats of partitions.
But in no case will these heirs be obliged to receive in payment credits of the succession.
Art. 1277. If there are no effects in the succession, or not sufficient to satisfy the heirs to whom the collation is due, the amount of the collation, or the balance due on it, shall be paid them by the heir who owes the collation.
Art. 1278. This heir shall have one year to pay the sum thus by him due, if he furnish his coheirs with his obligation payable at that time, with eight per cent. interest, and give a special mortgage to secure the payment thereof, either on the immovable property subject to the collation, if it is in his possession, or in want thereof, on some other immovable property which may suit the coheirs.
Art. 1279. If the heir, who has been allowed to furnish his obligation as mentioned in the preceding article, fails to fulfill his engagement at the expiration of the year granted to him, the heirs, in whose favor this obligation has been made, or their representatives, have a right to cause the property mortgaged to them to be seized and sold, without any appraisement, and at the price offered at the first exposure for sale.
Art. 1280. If the property thus seized and sold is the same which was subject to the collation, the coheirs seizing, or their representatives, shall be paid the amount of their debt due for the collation, by privilege and in preference to all the creditors of the donee, even to those to whom he may have mortgaged the property for his own debts or engagements, previous to the opening of the succession, saving to these mortgage creditors their recourse against other property of the donee.
Art. 1281. A. If the donee who owes the collation has alienated by onerous title the immovable given to him, the coheirs shall not have the right to claim the immovable in the hands of the transferee.
B. If the donee who owes the collation has created a real right by onerous title in the immovable given to him or such right has been created by operation of law since the donee received the immovable, the coheirs may claim the immovable in the hands of the donee but subject to such real right as has been created. In such a case, the donee and his successors by gratuitous title are accountable for the resulting diminution of the value of the property. [Amended by Acts 1981, No. 739, §1. Acts 1984, No. 869, §1]
Art. 1282. The third purchaser or possessor of the real estate subject to collation may avoid the effect of the action of revendication, by paying to the coheirs of the donee, to whom the collation is due, to wit: the excess of the value of the property above the disposable portion, if the donation has been made as an advantage or extra portion, or the whole of the value thereof, if the donation has been made without this provision, by fulfilling in this respect all the obligations by which the donee himself was bound towards the coheirs.
Art. 1283. When movables have been given, the donee is not permitted to collate them in kind; he is bound to collate for them by taking less, according to their appraised value at the time of the donation, if there be any annexed to the donation. In default thereof, recourse may be had to other evidence to establish the value of these movables at the time of the donation.
Art. 1284. Therefore the donation of movables contains an absolute transfer of the rights of the donor to the donee in the movables thus given.
Art. 1285. The collation of money may be made in money or by taking less, at the choice of the donee who is bound to decide thereon, in the same manner as is prescribed for the collation of immovable property.
Art. 1286. If it be movables or money, of which the donee wishes to make the collation by taking less, he has the right of compelling his coheirs to pay themselves the collation due to them in money, and not otherwise, if there be sufficient in the succession to make these payments with.
Art. 1287. But if there is not sufficient money in the succession to pay such heirs the collation due to them, they shall pay themselves by taking an equivalent in the other movables or immovables of the succession, as is directed with respect to the collation of immovable property.
Art. 1288. In case there be no property or effects in the succession to satisfy the collations due for movables or money given, the donee shall have, for the payment of the sum due to his coheirs, the same terms of payment as are given for the payment of the amount of collations of immovable property, and under the same conditions as are before prescribed.
|< Previous | Next >|