Page images

whose birth the donation has been revoked, he can do it only by a new disposition.

ART. 1560.-Every clause 'or agreement, by which the donor may have renounced the revocation of the donation on account of the birth of a child, shall be held null and of no effect.

ART. 1561.- The donec, his heirs or assigns cannot plead prescription in support of the donation revoked by the birth of a child, until after a possession of thirty years, to commence only after the day of the birth of the last of the donor's children, be the children even posthumous: and this prescription is liable to all legal interruptions.

ART. 1562.-In all cases, in which the donation is revoked or dissolved, the donee is not bound to restore the fruits by him gathered previous to the demand for revocation or rescision.

But in case of the non-fulfilment of conditions, which the donee is bound to fulfil, if it be proved to have proceeded from his fault, he may be condemned to restore the fruits by him received since his neglect to fulfil the conditions.


Of Dispositions mortis causa (in prospect of death).


Of the Testament. ART. 1563.-No disposition mortis causa shall henceorth be made otherwise than by last will or testament. All other form is abrogated.

But the name given to the act of last will is of no importance, and dispositions may be made by testament under this title, or under that of institution of heir, of legacy, codicil, donation mortis causa, or under any other name indicating the last will, provided that the act be clothed with the forms required for the validity of a testament, and the clauses it contains, or the manner in which it is made clearly establish that it is a disposition of last will,

Thus an act of last will, by which an individual disposes of his property or of part thereof, in any manner whatsoever, whether he has instituted an heir or only named legatees, whether he has or has not charged any one with the execution of his last will, is considered as a testament, if it be, in other respects, clothed with the formalities required by law.

ART. 1564.-A testament is the act of last will clothed with certain solemnities, by which the testator disposes of his property, either universally or by universal title, or by particular title.

ART. 1565.-A testament cannot be made by the same act, by two or more persons, either for the benefit of third person, or under the title of a reciprocal or mutual disposition,

ART. 1566.--The custom of willing by testament, by the intervention of a commissary or attorney in fact is abolished.

Thus the institution of her and all other testamentary dispositions committed to the choice of a third person, are null, even should that choice have been limited to a certain number of persons designated by the testator.




General Rules on the Form of Testaments.

ART. 1567.-All testaments are divided into three principal classes, to wit :

1. Nuncupative or open testaments; 2. Mystic or sealed testaments; 3. Olographic testaments. ART. 1568.--Testaments, whether nuncupative or mystic, must be drawn up in writing, either by the testator himself or by some other person,

under his dictation.

ART. 1569.-The custom of making verbal testaments, that is to say, resulting from the mere deposition of witnesses, who were present when the testator made known to them his willy without his having committed it or caused it to be commited to writing, is abrogated.

ART. 1570.--Nuncupative testaments may be made by public act, or by act under private signature.

ART. 1571.--The nuncupative testaments by public act must be received by a notary public, in presence of three witnesses residing in the place where the will is executed, or of five witnesses not residing in the place.

This testament must be dictated by the testator, and written by the notary as it is dictated.

It must then be read to the testator in presence of the witnesses.

Express mention is made of the whole, observing that all those formalities must be fulfilled at one time, without interruption and without turning aside to other acts.

ART. 1572.—This testament must be signed by the testator; if he declares that he knows not how, or is not able to sign, express mention of his declaration, as also of the cause that hinders him froin signing, must be made in the act.

ART. 1573.-This testament must be signed by the witnesses, or at least by one of them for all, if the others cannot write.

ART. 1574.-A nuncupative testament, under private signature, must be written by the testator himself or by any other person, from his dictation; or even by one of the witnesses, in presence of five witnesses residing in the place where the will is received, or of seven witnesses residing out of that place;

Or it will suffice if, in the presence of the same number of witnesses, the testator presents the paper, on which he has written his testament, or caused it to be written out of their presence, declaring to them that that paper contains his last will.

ART. 1575.-In either case, the testament must be read by the testator to the witnesses, or by one of the witnesses to the rest, in presence of the testator; it must be signed by the testator, if he knows how 'or is able to sign, and by the witnesses or at least by two of them, in case the others know not how to sign, and those of the witnesses who do not know how to sign, must affix their mark.

This testament is subject to no other formality than those prescribed by this and the preceding article.

ART. 1576.-In the country it suffices for the validity of nuncupative testaments under private signature, if the testament be passed in the presence of three witnesses residing in the place where the testament is received, or of five witnesses residing out of that place, provided that in this case a greater number of witnesses cannot be had.

ART. 1577.—The mystic or secret testament, otherwise called the closed testament, is made in the following manner:

The testator must sign his dispositions, whether he has written them himself, or has caused them to be written

by another person.

The paper containing those dispositions, or the paper serving of their envelope, must be closed and sealed.

The testator shall present it thus closed and sealed to the notary and to seven witnesses, or he shall cause it to be closed and sealed in their presence. Then he shall declare to the notary, in presence of the witnesses, that that paper contains his testament written by himself, or by another by his direction, and signed by him the testator. The notary shall then draw up the act of superscription, which shall be written on that paper or on the sheet that serves as its envelope, and that act shall be signed by the testator, and by the nolary and the witnesses.

ART. 1578.--All that is above prescribed shall be done without interruption or turning aside to other acts; and in case the testator, by reason of any hindrance that has happened since the signing of the testament, cannot sign the act of superscription, inention shall be made of the declaration made by him thereof, without its being necessary, in that case, to increase the number of witnesses.

ART. 1579.-Those who know not how or are not able to write, and those who know not how or are not able to sign their names, cannot make dispositions in the form of the niystic will.

ART. 1580.- If any one of the witnesses to the act of superscription knows not how to sign, express mention shall be made thereof.

In all cases, the act must be signed at least by two wit



ART. 1581.—The olographic testament is that which is written by the testator himself.

In order to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made any where, even out of the Stale.

ART. 1582.-Erasures not approved by the testator are considered as not made; and words added by the hand of another, as not written.

If the erasures are not so made as to render it impossible to distinguish the words covered by them, it shall be left to the discretion of the judge to declare if he con-. siders them important, and in this case only to decree the nullity of the testament.

ART. 1583.-It suffices, for the validity of a testament, that it be valid under any one of the forms prescribed by

« PreviousContinue »