child of that person, the substitution would have been at an end. (a)

The Code authorizes only those dispositions in which all the children of the donee are provided for with perfect equality, and no distinction is made in respect of age or sex. Although a person may make a direct gift to one of his grand-children or nephews, in exclusion of the others, provided such grand-children or nephews be in esse, yet he cannot charge his son or brother to give to one of his children, rather than to another, or to sons, in exclusion of daughters.

The charge to deliver to one or more of the children would not only be itself void, but would also render void the direct donation or bequest to the person charged with such delivery. (b) When, however, the substitution exceeds the number of degrees to which it is restricted by the law, it is invalid only in respect of the excess. Thus, in a gift to A., the donor's eldest son or brother, with a charge to deliver to his children born, or to be born, and that those children should take with the charge of delivering over to their children, the latter charge only, namely, that the children of the donee should deliver to his grand-children, is void; but the preceding limitation will subsist. (c)

If a person has made a gift which he has not subjected to any fidei-commissum, he may afterwards make another gift to the same donee, on the condition, that the former as well as the second gift be held by the donee subject to a fidei-commissum, and if the donec accepts it, he is not permitted to separate the two dispositions, and renounce the second to take the first, although he should offer to deliver up the property comprised in the second gift. (d)

(a) Art. 1051.

(c) Toullier, liv. 3, tit. 2, c. 6, n. 728.

(b) Ib. 1050.

(d) Art. 1052. Pothier, Tr. des Substit. § 4, art. 4. Ord. art. 16.

The donee may choose whether he will accept the gift which is offered to him, but having once accepted it, he cannot withdraw himself from the obligation which is imposed on him by his acceptance.

The disposition in favour of a brother or sister, subject to the charge of delivering up the property to his or her children, is annulled, if the author of it leaves children at the time of his death. The disposition, according to the language of the article "sera valable, en cas de mort sans enfans, la disposition que le défunt aura faite par acte entre vifs ou testamentaire, au profit d'un ou plusieurs de ses frères ou sœurs, avec la charge de rendre ces biens aux enfans nés et à naître, etc." (a) It follows, therefore, that if the donor, or testator, has children at the time of his death, not only the charge de rendre, but the entire disposition is annulled. If, however, it be made by testament, the other legacies and bequests which it contains will continue valid. It is immaterial, according to this article, whether the children are born before or after the donation; but the question is, whether there are children at the time of his death. In this respect donations à la chargé de rendre are distinguished from ordinary donations inter vivos, for the latter are not revoked, if the donor had children or descendants living at the time of the donation.

Again, ordinary donations are absolutely revoked by the birth of children, and they are not revived by the subsequent death of those children. But donations à la chargé de rendre are not absolutely annulled, for if the children die before the donor, the donation remains valid.

It is in favour, not of the donor, but of the children, that the nullity, or revocation of the donation is pronounced. Hence a purely simple donation by a brother

(a) Art 1049. Toullier, liv. 3, tit. 2, c. 6, n. 796.

to his sister is absolutely (de plein droit) revoked by the birth of a child of the donor.

On the other hand, thedonation à la chargé de rendre is not absolutely (de plein droit) revoked. It is only revoked in the event of a child being alive at the death of the donor. In this respect more favour is shown to a donation à la chargé de rendre than to a simple donation. But a simple donation is not revoked by the existence of a child at the death of the donor, if born before the donation, although it revoke the donation à la chargé de rendre. In this respect greater favour is shown to the former than to the latter species of donation. (a)

The restrictions contained in the preceding articles were relaxed by the law of the 17th May, 1826. 1st. The property of which the donor has the power of disposing may be given by act inter vivos, or by testament, not merely to his children, but even to strangers, with the charge of delivering it to the children born or to be born of the donee.

2ndly. Such disposition may be made in favour of one or several, or of all the children of the donee, or legatee, born, or to be born, and it is not required that the disposition should be for the benefit of all, without any distinction or preference of age or sex.

3rdly. The disposition may be made in favour of the children of the donee, or legatee, to the second degree inclusive.

The decree of the 3rd September 1807, which gave to this digest the appellation of the "Code Napoleon," instead of its former appellation of "the Civil Code of the French," engrafted on article 896 the following exceptive modification:

"Neanmoins les biens libres formant la dotation d'un titre héréditaire que le roi aurait érigé en faveur d'un prince, ou d'un chef de famille, pourront être transmis

(a) Toullier, liv. 3, tit. 2, c. 6. Des Dispositions Permisses.

héréditairement, ainsi qu'il est regulé par l'acte du 30 Mars, 1806, et par celui du 14 Août suivant." (a)

The property thus excepted, and which, being annexed to a title granted by the sovereign, is made the subject of a strict entail, is called a majorat.

This institution of majorats immediately followed the re-establishment of the monarchy. It was regulated by a great variety of decrees.

The right of instituting them was incident to certain public dignitaries and officers. Others obtained the institution from the favour of the sovereign, in granting them a title to which the property was to be annexed. The decree of the 14th August, 1806, reserves to the sovereign the power of authorizing the head of a family, "à substituer ses biens libres pour former la dotation d'un titre héréditaire que sa majesté érigerait en sa faveur, révérsible à son fils aîné, né ou à naître, et à ses descendans en ligne directe, de mâle en mâle, par ordre de primogéniture." (b)

The eldest sons of the great dignitaries have, de jure, the title of duke, when their father institutes in their favour a majorat producing an income of 200,000 f.

Those grand dignitaries might also institute in favour of elder or younger sons, majorats, to which the title of count, or baron, may be attached.

To certain public functionaries the title of count is attached. It is transmissible to their descendants, if the person holding it shows a net revenue of 30,000 f., from property of that species of which it is allowed to constitute a majorat. This property is to form the endowment for the title. It is also competent for such functionaries to institute a majorat in favour of their elder or younger sons, and to which the title of baron may be annexed. (c)

(a) Art. 896.

(b) Decree, 14th August, 1806, art. 5.

(c) Decree, 4th June, 1809.

Other public functionaries bear the title of baron during their lives. This title is not transmissible, unless the person holding it shows that he has a net income of 15,000 f. from his property, of which a third must constitute an endowment for the title.

The decree of the 1st March, 1808, details the various preliminary regulations to be adopted in order to obtain the institution of majorats. They apply to the preceding classes of persons on whom the titles of duke, count, and baron are conferred de plein droit, and who are desirous of instituting majorats, as well as to those persons who have no right to institute majorats, unless by the permission of the sovereign. The demand, if it be made by a person of the former class, sets forth the nature of his office entitling him to institute a majorat, and if it be made by a person of the other class, it represents the services which he has rendered to the state. The demand in both cases states the nature of the majorat for which the demand is made, the property of which it is to consist, the produce of the property, the certificate of the registrar that it is not incumbered, and the number of the children living of the applicant, distinguishing their sex.

It is to be transcribed in the registry, and a bulletin of the registration delivered to the party making the demand. An examination of it takes place by the council de Sceau de Titres. As soon as it has been registered, an act is given out, specifying the property which it is proposed should constitute the majorat. By virtue of this act, at the expiration of a fortnight after its transcription in the office of mortgages, in the place where the property is situated, the estate described in it is rendered unalienable during a year, and can neither be mortgaged nor incumbered, nor made subject to the substitutions which the Code permits, nor to any condition which can lessen the value of its capital or income.