Clark v. Hedden

Citations

• 109 La. 147
• 33 So. 116
• 1902 La. LEXIS 127

Syllabus

<p>DESCENT AND DISTRIBUTION — DISGUISED DONATION — COLLATION—EVIDENCE.</p> <p>1. In a suit by an heir against his coheirs to compel them to collate real estate transferred to them by the deceased by contracts of sale, but which sales are attacked as having been mere donations in disguise, the defense being that the consideration of the sales was a debt due to the defendants by the deceased for the unpaid price of property conveyed by them to the deceased, parol evidence is inadmissible to show that the conveyance to the deceased, which, according to the authentic act evidencing it, was a dation en paiement, was in reality a sale, and that only part of the price was paid, the deceased remaining indebted to the defendants for the remainder. Such evidence would contradict the written act, but as explanatory of the consideration of a note given by the deceased to one of the defendants, and in rebuttal of the allegation that such note was without consideration, parol is admissible to show that the transfer of property in question was not a dation en paiement, but a sale, and that the note in question was given in payment of the price. Such testimony does not deny the transfer of the property, nor the payment of the price, but merely explains the manner of the payment, and accounts for the giving of the note.</p> <p>2. In a suit by an heir against his coheirs for the collation of disguised donations, after the plaintiff has made a prima facie showing that the transfers were gratuitous the burden shifts to the defendants to show that the transfers were onerous.</p> <p>3. Collation of revenues is due from the time of the death of the deceased only when the suit to compel same has been brought within the year; otherwise it is due only from judicial demand. The fact that the donations complained of were disguised under the form of sales makes no difference, unless thereby the complainant has been kept in ignorance of his right to demand the collation.</p> <p>4. An heir must c