71. On Promise and on Donation

1. Leopoldus often says to his servant that he has in mind to leave him a legacy after his death; and to his wife he frequently repeats that he has the intention of leaving to her after his death the whole disposable part of the inheritance. Meanwhile Leopoldus dies, without having in reality disposed anything for the servant and for the wife.

Q. 1. What is a promise, and what is its obligation? 2. What as to the case?

R. To the first. Cf. I. M. 983 seqq. - To the second. Neither the servant nor the wife can compensate themselves by taking money. For it is altogether one thing to have the mind and intention of doing something, another to promise, another to donate and do it in reality. Wherefore to have the mind and intention of donating or of leaving a legacy certainly is not the same as to promise a donation or legacy, nor to donate and bequeath in reality. Since, therefore, there was no donation, no legacy, indeed no promise, by no title would the servant and wife compensate themselves.

But what must be said if Leopoldus had manifested to the pastor his mind and intention of leaving something for his soul, that so many Masses, a thousand Masses for example, be celebrated with an alms for each of ten lire? Can the pastor secretly take, if he can, ten thousand lire for this end, if Leopoldus meanwhile dies without having disposed anything even about this matter? A negative answer must likewise be given, for the same reason. There is no donation in the case, no promise; for a promise is not a mere intention and mere proposal of doing something, but an obligation of one's own faith. I. M. 982 seqq.

2. Simon, sick and near death, openly declares to his servant that he should take the money placed in the desk, which he donates to him independently of salary. The servant accepts the gift; nevertheless he delays taking the money for himself, which he knows is placed in a safe place, from which he himself can always freely take it. The master dies, and then the servant takes the money for himself and keeps it, manifesting nothing to the heirs.

Q. 1. What is a donation mortis causa, and what is its force? 2. What as to the case?

R. To the first. Cf. I. M. 955 seqq. - To the second. The servant altogether by right takes the money for himself and keeps it. For it truly had been donated to him by the master, and the donation had been accepted by him. The donation in the case, as appears from the circumstances, was indeed on occasion of death but not properly on account of death; but it was such that the donated thing was immediately made the donee's, and in this respect it was a donation among the living by a dying man. Nor indeed does it seem that handing over was lacking, since Simon not only says that he donates to the servant the money placed in the desk, but says that he should take it for himself; whence there clearly appears both an actual donation and an actual handing over on the part of Simon. Only the material apprehension of the money was lacking, which was in no way necessary for acquiring perfect dominion of it. - G. 817-819.

3. Privatus, sick, calls Belina his maidservant and says: If I die of this illness, you will receive from my chest a little box filled with a thousand lire. My death occurring, I leave it to you. Belina, accepting the donation, renders a thousand thanks to her master. Privatus had scarcely breathed out his soul when all his goods were immediately sealed by the heirs. Hence it was impossible for Belina to receive the little box. Nevertheless she claims it, but in vain. Whence, since she can accomplish nothing else, she begins little by little, when occasion is given, to use hidden compensation.

Q. What as to the case?

R. By natural law and by common positive law, and also by the more recent law, the heirs are held to pay out the money to the maidservant if the donation is certainly established to them. I. M. 997-999. But if the donation is not certainly established to them, they are not held. Nor indeed are they held to apply faith to the asserting maidservant. For anyone could affirm that this or that had been donated to him by the deceased. - Belina, on the contrary, since she herself is altogether certain of her right, could have received the money immediately after the death of Privatus. But since she could not take the money certainly donated to herself, she can now secretly compensate herself. Elbel 427, 428; G. 811-813.

But if Belina had received the little box after the death of Privatus, and then were compelled by the heirs or by the judge to furnish an oath that she had received nothing from the goods of the deceased, could she swear that she had received nothing? She indeed could, because in reality she then received nothing from the goods of the deceased, but only that which was hers. For, the death of Privatus intervening, dominion of the money was immediately transferred into Belina. The donation of Privatus was by no means indeed a donation inter vivos, which is accustomed to be expressed by the word I donate, but was a donation mortis causa, which is altogether clearly expressed by those words, I leave, my death occurring. Likewise the donation was conditioned, which is also clearly expressed by that clause, if I die of this illness, etc. Therefore, the condition of death from that illness of Privatus having been verified, the donation was made absolute.

Therefore, the donor having died, the donated thing immediately passed into the dominion of the donee, and was made hers. G. 812, 815, 816.

But what if, the little box having been received and the matter having been known, with the sentence of the judge intervening, she were condemned to restore it? Belina would then be held per accidens to restitution: by reason of obedience to be furnished to the judge, and by reason of scandal of those who are ignorant of the donation. Since Belina cannot juridically prove her right, the sentence of the judge is formally just, and therefore she is held to conform herself to it. But, restitution having been made, she will be able to compensate herself secretly. For she herself has a certain right, and the sentence of the judge was materially unjust and founded on a false presumption of particular fact, that a donation from Privatus had not been accepted. But it would be otherwise if the donation itself were made void by the judge. G. 816, 820, 821; I. M. 997, 998.

4. Blasius sends a thousand gold coins by a messenger to Odilla, his absent niece. Odilla dies before the messenger has reached her. The sons and heirs of Odilla altogether in vain claim the gift, first from the messenger, then from Blasius himself.

5. Agoardus sends a thousand gold coins to Drusilla, his blood relative, through Timotheus. But the mandatary unjustly keeps them for himself. Meanwhile Agoardus dies, and, the donation made being known, both the heirs of the donor Agoardus and Drusilla the donee claim the aforesaid thousand gold coins at the same time.

Q. 1. Whether a donation made to an absent person is valid? 2. What as to the cases?

R. To the first. Cf. I. M. 1004, 1001, 1003, 1011. - To the second. Since Odilla died before she could accept the donation, the donation was in no way perfected, and therefore by no agreement could dominion of the gift be acquired for the donee. But if dominion of the gift was not transferred into the donee, it certainly could not pass from the donee to her sons and heirs. Nor indeed can the sons and heirs of Odilla, in the case, accept the donation for her; for they could do this only from the presumed will of the donor, when the donor did not intend uniquely or principally to favor the person herself of the donee, but primarily or at least equally also her sons and heirs; which, speaking generally, must be settled from various circumstances, and in doubt the donor must be questioned concerning his mind. Moreover, in the case, since the sons and heirs of Odilla claim the gift altogether in vain, it is an evident sign that Blasius was unwilling to donate the aforesaid thousand gold coins to them, but wished to make the gift only to the very person of his niece. I. M. 1004, 1011; G. 803.

The donation of Agoardus is not valid; for it was not accepted while the donor was living, and, he having died, it can no longer be a donation inter vivos. Wherefore the thousand gold coins must be restored by the mandatary to the heirs of the donor Agoardus; but he himself is held for damages toward Drusilla the donee, since, unless he had unjustly kept those thousand gold coins, Drusilla certainly would not have sustained such damage. - G. 804.

6. Benno, extraordinarily rich and soon to die, donates to Margarita his wife a thousand gold coins, of the value of 20,000 lire, hidden in a certain chest; she, by command of her husband, immediately receives them. Benno made such a gift to his wife, that he might repay her cares and distinguished offices bestowed on him during the marriage and during his long illness; and Benno signifies this to that same wife by words, also asking her that after his death she diligently take care that a monastery of nuns be built, and that several other pious legacies, expressed in his testament, be fulfilled, which perhaps from the side of the sons would be subject to grave difficulties.

Q. 1. What is to be held concerning manual donations? 2. What as to the case?

R. To the first. The common opinion is that, according to civil jurisprudence itself, customary gifts and gifts by brief hand, if they are freely made between capable persons and in the disposable part, have force in the forum of conscience and in the civil forum, even if the solemnities prescribed by civil law are lacking, as if no act of donation is drawn up, neither public nor private. For civil law, in establishing the aforesaid solemnities, wished only to shut off the way to ill-considered donations, not to just liberalities. And this is confirmed by common custom itself, which is the best interpreter of laws. Indeed, it would be altogether intolerable that someone without a public writing could not licitly and validly donate a ring to a friend, a watch to a servant, five lire to a poor man. And this is furthermore drawn from Cod. Civ. It. 707 itself, C. G. 2279. For with respect to movables, and from C. I. to bearer instruments, possession produces as to third parties in good faith the same effect as title. This disposition, however, from C. I. is not applied to the universality of movables. Wherefore the donation of movables and of the aforesaid instruments will be altogether licit and valid, if they have already been handed over to the donee in good faith. And from this same disposition of the law of the Italian Code, it is drawn that manual donation of this sort, although it is permitted, must nevertheless be restrained within just limits, which belongs to prudent men to define, with account taken of the circumstances. I. M. 1011.

To the second. From C. G. the donation in the case would be altogether valid, as indeed a donation by a dying man, but among the living. For there is nothing whence its invalidity can be drawn; for it is a clear, determinate donation, accepted, made by a man capable of donating among the living to a wife capable of receiving. But it openly appears that the legitime was not injured, for there is question of an extraordinarily rich man.

From C. I. there is difficulty from the fact that a spouse cannot donate to a spouse. But every difficulty vanishes in the case if it is considered first that therefore donations of spouses among themselves, during marriage, are prohibited by law lest by mutual love they despoil each other. For this reason they cannot validly accept them, neither through interposed persons, nor under the species of an onerous contract. C. I. 1054, 1055; I. M. 1008. But, in the case, since Benno is soon to die, by legitimate epikeia the law does not seem to be applied, since in the same law acts of last will are excepted. Besides, the aforesaid donation is a remunerative donation, since it was being made on account of an office furnished and a benefit received; and this donation is rather a certain compensation. Likewise the aforesaid donation is at the same time an onerous donation; Benno, at his request, attached a burden, and this donation also is rather a certain payment or a certain exchange. Wherefore it is not comprehended by that law. Therefore Margarita, even according to C. I., can keep the sum received.

But the difficulty is that the donation seems excessive. Yet, if it is considered that there is question of an extraordinarily rich man, and of a donation not properly such, but of a remunerative and onerous donation, and that there is not question of a maidservant to be remunerated but of a wife, the aforesaid sum of 20,000 lire in this manual donation does not seem altogether exorbitant, although in reality it is not customary. And although a donation of this sort exceeds ordinary manual donations, an excess of this sort in the case does not hinder its validity, since by French law and by Italian law itself it is not invalid. I. M. 1011. Moreover, Benno certainly could have left that sum, the legitime of the sons being uninjured, under the name of a legacy to his wife even from the Italian Code; perhaps Benno did not do this to avoid the inconveniences which could have been present from the side of the sons. Therefore, if it is not valid as a donation, it certainly can be valid as a legacy lacking legal forms, from so certain a will of the testator in the case. G. 802, 814, 817.

7. Lucius donated, in the year 1890, 3,000 lire to Lucianus; he donated, in the year 1891, 3,000 lire to Lucinus; he donated, in the year 1892, 3,000 lire to Lucillus; he donated, in the year 1893, 3,000 lire to Lucidus. In the year 1894 Lucius dies and leaves only 4,000 lire to Lucia, his only daughter.

Q. 1. What is reduction of a donation? 2. Whether the aforesaid donations are to be reduced?

R. To the first. Cf. I. M. 1014. - To the second. Lucia, the sole surviving daughter, has a right to half part of the goods of her father. Moreover, the whole substance of the father was the sum of 16,000 lire. Wherefore Lucia has a right to 8,000 lire. Therefore the aforesaid donations are to be reduced up to the constituting of this sum, beginning from the donation made in the last place. Wherefore Lucia can seek that the donation made to Lucidus be declared null, and that the donation made to Lucillus be reduced to 2,000 lire. If the petition is made within a year from the death of Lucius, the fruits of the excess of the disposable part are also to be restored from the day of the death of the same donor. But if reduction is sought after a year, the fruits are to be restored from the day of the petition made. C. I. 1093, 1094.

8. Paulus donated 24,000 lire to Paulinus. Dying, Paulus left another 24,000 lire, but at the same time a debt of 30,000 lire. Paulianus, son of Paulus, demands reduction and says that half part of that gift is owed to him. But the creditor of Paulus also seeks from Paulinus reduction of the gift received, and consequently full payment of his credit.

Q. What as to the case?

R. Supposing that the donation of Paulus made to Paulinus was not in fraud of his creditor, concerning which nothing is had in the case and therefore it is not to be presumed, the creditor of Paulus cannot seek reduction of that gift. For none can seek it except only necessary heirs. Wherefore the creditors of the heir, because they use his rights, can indeed compel him to demand reduction, or they themselves can demand it in place of him; but the creditors of the inheritance, or of the deceased, cannot seek it; nor can it profit them if it is sought by a necessary heir. Wherefore, if the heir enters the inheritance with benefit of inventory, and himself seeks reduction, it profits the creditor nothing at all. Therefore Paulianus, as a necessary heir, by right demands reduction of that gift, and therefore there are truly owed to him 12,000 lire, or half part of that gift of 24,000 lire by title of legitime. But the creditor of Paulus, since he has no right to demand reduction and consequently cannot enjoy it, ought to be content with only the 24,000 lire left by Paulus. - C. I. 1091, 1092.

9. Titius, while he was living, donated to his paternal uncle an estate of 12,000 lire, and dying left another estate of 24,000 lire, but at the same time left several debts which come to the sum of 30,000 lire. The creditors vindicate for themselves the 24,000 lire left, and seek in addition from those 12,000 donated another 6,000 lire, that satisfaction may be made to their credits. Moreover, the heir of Titius also urges reduction of that donation, and, since that estate after the death of Titius was worth 20,000 lire, he demands for the legitime owed to him 10,000 lire. But the paternal uncle of Titius altogether refuses these demands, because he says that from a benefit would follow a harm; for finally the donation would be turned into a payment to be furnished from his own patrimony, since, 10,000 lire having been given to the heir and 6,000 lire given to the creditors, he would already have had to add another 4,000 lire from his own patrimony to the 12,000 lire received by donation. Indeed, because the value of the estate left decreased at the time the inheritance was entered, the paternal uncle of Titius is forced to add from his own another two thousand lire, as much as that estate decreased.

Q. What as to the case?

R. For reckoning the disposable and the legitime, one mass is brought together, at the time of the death of the testator, for then the legitime is owed, from the goods left by the testator when he died and from those donated by him while he lived. C. I. 822, 1091; C. G. 922. Therefore an estimation of these is made. Things left are estimated from the day of the inheritance deferred, as they were and as much as they were worth then, when the testator died, whether afterward at the time the inheritance was entered they increased or decreased. C. I. 822; C. G. 922. Things donated, if they are movable things, are estimated as they were and as much as they were worth at the time of the donation; if immovables, as they were at the time of the donation and as much as they are worth at the time of the inheritance deferred. C. I. 822. Cf. C. G. 922. As they were; wherefore, if by the diligence or negligence of the donee after the time of the donation they were made better or worse, this profits or harms him. As much as they are worth; and therefore, if after the inheritance was deferred and before it was entered their price increased or decreased, this by no means pertains to increasing or diminishing the legitime. C. I. 1012; C. G. 855. - Since therefore in the proposed case, at the time of the inheritance deferred, the estate left was estimated at 24,000 lire, and the estate donated at the same time of the inheritance deferred is estimated at 20,000 lire, the sum to be computed is 44,000 lire, without computing the two thousand lire of decrease of the estate left, which happened after the inheritance was deferred. Whence it is that by a decrease of this sort the legitime and disposable are not diminished, just as they would not be increased by an increase. Moreover, from the hereditary mass the debt is to be deducted; for goods are understood to be what remains after debt has been deducted. But debts are to be deducted not from the whole mass, namely from things left and from things donated, but only from things left, and therefore donated things remain entire. For donated things are no longer in the patrimony of the debtor. Since in the case the things left were 24,000 lire, and the debt 30,000 lire, the debt absorbs all the things left, and 6,000 lire still remain unpaid, which the creditors cannot obtain by reduction of the donation. Indeed 8,000 lire remain unpaid because of the diminished value of the estate. For reduction of a donation cannot be invoked by creditors of the inheritance, but only by heirs; and that in favor of the heirs. Therefore in the proposed case there remain 12,000 lire of the donated estate, indeed 20,000 lire, which was the value of the estate at the time of the inheritance deferred. Therefore the legitime is 10,000 lire, and the disposable is likewise 10,000 lire. Wherefore it is false that the paternal uncle of Titius must pay from his own 4,000 or 6,000 lire to the creditors; but he keeps 10,000 lire from the received donation, and must hand over the other 10,000 to the necessary heir, who is thus helped by favor of the donation carried out by his father. For, if that donation among the living had by no means been carried out, once the debt of 30,000 lire had been paid, the hereditary mass would have been only 14,000 lire; the legitime would have been only 7,000 lire, and the disposable also 7,000 lire, which Titius likewise could have left to his paternal uncle by testament. - D'Annib., 3rd ed., p. 2, n. 387 seqq.

10. Titius donated to a stranger more than the disposable part, namely three fourths. But dying he left a brother and one son, who renounced the paternal inheritance. Can the brother seek reduction of those things which were donated to the stranger?

R. Affirmatively. For from C. I. 1092 reduction can be sought only by those to whom the law reserves the legitime or another quota of succession, and by their heirs and those having cause. But from the same C. I. 805, for establishing and defining the legitime, the children left are considered, not the heirs. Cf. C. G. 921 and the following case; D'Annib., l. c., n. 347.

11. Gabinius donated to Fabritius, his friend, a house of the value of 12,000 lire; but dying he left a field of the value of 6,000 lire, leaving at the same time one son, a spouse, and a brother. The son declares that he wishes no part in the paternal inheritance. Hence the widow of Gabinius and the brother of Gabinius first contend with Fabritius, that the donation made to him be rescinded or at least reduced, because it diminishes their inheritance. Then indeed they contend among themselves, because, the son abstaining from the inheritance, the widow of Gabinius, the mother, claims a greater portion for herself.

Q. What as to the case?

R. From C. I. 1092, reduction can by right be sought by the spouse, because the spouse is a necessary heir to whom the law reserves a legitimate portion. Whether the brother also can seek reduction is a question. But it seems that it must be answered affirmatively from the cited article. For there it is said that reduction can be sought by those in whose favor the law reserves the legitime, as is the spouse, or another quota of succession, and a quota of succession is reserved by law to the brother, and by their heirs and those having cause; wherefore in the case the spouse and the brother can seek reduction.

But the widow of Gabinius cannot vindicate for herself a greater portion from the fact that the son of Gabinius abstains from the inheritance. For from C. I. 812, 815, the part is assigned to the spouse, not the quota which belongs to the individual sons, but the quota which would belong to them, including the spouse also among the sons.

Hence, the 12,000 lire donated to Fabritius having been brought into the inheritance, the patrimony of Gabinius is 18,000 lire. The legitime is 9,000 lire and the disposable likewise 9,000 lire, to which portion the donation is to be reduced. Consequently to the spouse belongs the usufruct of half part of that legitime, that is, of 4,500 lire, which namely would belong to her if the son entered the inheritance. C. I. 753. Moreover, the son abstaining from the inheritance, his portion devolves to the legitimate heirs, C. I. 883. These in the case are the spouse and the brother, to whom belongs two thirds, one third being left to the spouse. C. I. 754. Wherefore 6,000 lire belong to the brother, 3,000 to the spouse as to ownership; because this ownership which would belong to the son, he renouncing the inheritance, passes to the legitimate heirs, but the spouse besides retains the usufruct of the aforesaid 4,500 lire. Wherefore the usufruct of the other 4,500 lire belongs in two third parts to the brother and in the other third part to the spouse.

12. Curtius donated to his grandson Paulinus, son of Paulus his son, 3,000 lire. He likewise donated to his son Paulus another sum of 3,000 lire. Curtius dies, and his inheritance devolves to his three sons, Paulus, Petrus, Ioannes.

Q. 1. What is collation? 2. Whether Paulus and Paulinus his son ought to bring into the mass of the inheritance 6,000 lire received from the father and grandfather?

R. To the first. Cf. I. M. 1015. - To the second. Paulus indeed must bring in 3,000 lire received as a gift from his father. But Paulinus his son does not have to bring back the 3,000 lire received from his grandfather, if the legitime has remained uninjured. For they were donated as it were to a stranger. But it would be otherwise if Paulinus succeeded to his grandfather by right of representation. C. I. 1001, 1002, 1004; C. G. 843, 844, 847; I. M. 1016.

13. Columbinus donated 50,000 lire to Lucinus, secretly committing to him that he hand them over with fruits to his youngest son Faustinus after his death. Then he sold to the same son Faustinus a large house at the price of 50,000 lire, which nevertheless, the contract having been completed before a notary, he immediately restored to that same Faustinus. Finally he sold to the aforesaid Faustinus a field at the price of 50,000 lire, though its true value was 100,000 lire. On the occasion of the marriage of his daughter Augusta, however, he donated to her by title of dowry 150,000 lire. Columbinus dies and his four children, Faustinus, Augusta, Fausta, and Augustinus, enter the inheritance. Fausta and Augustinus urgently demand that the dowry of Augusta and all the other goods donated and sold by their father be brought into the inheritance. But Faustinus contends that all things are owed to him either by title of donation or at least of onerous contract. Indeed, he contends that he has several other things from the paternal inheritance from the partnership entered with him by his father in the commerce which he exercised.

Q. What as to the case?

R. Descendants, when they succeed to their ascendants, even with benefit of inventory, must bring together into one, or compute, in the hereditary mass, the goods donated to them among the living by those ascendants, whether directly or indirectly, that they may divide all things equally among themselves, unless it was otherwise disposed by the deceased himself, and the legitime was not injured. C. I. 1001; C. G. 843; Lig. 957; I. M. 1015, 1016. But now that sum of 50,000 lire donated to Lucinus is a sum in reality indirectly donated to his son and heir Faustinus. That house sold to the aforesaid Faustinus was in reality directly donated to him under the species and form of an onerous contract. Likewise the dowry given to the daughter Augusta is a donation made directly to her. Wherefore all these things must altogether be brought into the inheritance. Indeed, not only are all those things to be brought in which were given for dowry, but also for nuptial furnishings. C. I. 1007. If, however, the dowry was paid to the husband without suitable security, the dowered wife is held to bring in only the action against the husband, which is therefore valued less because of the difficulty of payment. C. I. 1007. Certainly the useful things which an heir has perceived from an agreement entered with the deceased are not to be brought in, provided that he did not obtain profit immediately from the agreement itself. C. I. 1010. Hence Faustinus, for the field bought, does not have to bring in the field itself, but only 50,000 lire, since the advantages indirectly obtained at the very moment of the agreement are to be brought in. But that field was of the value of 100,000 lire, and he bought it from his father at the price of only 50,000 lire. Finally, those things which came from a partnership entered between the testator and the heir are not to be brought in, but it is necessary that it was entered without fraud, and that the conditions were confirmed by certain writing. C. I. 1011. Moreover, there certainly would have been fraud if Columbinus had associated Faustinus to himself in his commerce by falsely supposing that he had furnished funds for it. Wherefore, whether from this head Faustinus claims by right, the particular circumstances in the case would have to be further sought out and examined, since nothing explicitly is said in the case. - Cf. I. M. 1015 seqq.

14. Seius, dying, left 26,000 lire and four sons: Osius, to whom he had donated the whole disposable portion by title of preference; Orosius, to whom he had also already donated 6,000 lire before; Orontius and Terentius, to whom he left only the legitime. But Seius having died, Orontius and Terentius protest that Osius should bring 16,000 lire into the common inheritance to complete the legitime. But Osius protests that Orosius should bring in 6,000 lire to complete the disposable portion.

Q. What as to the case?

R. The whole inheritance in the case is not 26,000 lire, but 32,000 lire, because the 6,000 lire donated to Orosius must be brought into it. Therefore the disposable is 16,000 lire and the legitime is also 16,000 lire. Therefore by title of legitime there belong to each one 4,000 lire, and therefore to Osius also by this same title 4,000 lire are owed. But those 6,000 lire donated to Orosius and to be brought in for determining the legitime are altogether not to be brought in also for determining the disposable, C. I. 1014, so namely that Osius would receive 16,000 lire. Whence it is that the disposable is to be determined not from 32,000 lire, but only from 26,000, from which, 16,000 for the legitime having been deducted, there remain only 10,000 for the disposable, which alone by this title Osius will be able to vindicate for himself. But since the 6,000 lire donated to Orosius are to be brought into the common inheritance, hence the portion of each heir is to be increased by 1,500 lire. Wherefore Osius receives 15,500 lire, while the other three brothers each receives 5,500 lire. - I. M. 1015.

15. Chrysologus, while he was living, donated 12,000 lire to his firstborn son; but dying he left 8,000 lire to his two sons. But the firstborn, content with the donation, renounces the inheritance. Nevertheless the other brother, by no means content, demands from him that he bring the 12,000 lire into the inheritance.

Q. What as to the case?

R. If someone abstains from the paternal or maternal inheritance, he cannot, as if a stranger, be compelled to the collation of things donated to him by the deceased. But if the legitime of the other heirs is injured, then the accepted donation is to be reduced as much as is necessary that the legitime remain entire. C. I. 1001, 1092; C. G. 843, 921.

And so the firstborn in the case must restore 2,000 lire to his brother, namely so that the legitime may be had; and thus in the case each of the brothers obtains 10,000 lire: the firstborn by title of donation and of the renounced inheritance, the other brother by title of legitime, which he himself receives whole. C. I. 805.

16. Remigius, unmarried, donated an estate to his friend Albertus, with the condition added of a life census to be paid to himself. But in the very act of donation he declared that he renounced any right whatever of revoking the donation made. But from the first year Albertus refused to pay the life census. And, when Remigius sought the debt, he was overwhelmed by dire insults and most grave wounds. Wherefore he asks from the judge revocation of the donation; but before sentence was rendered, he himself departed from the living. Hence his heirs ask for restitution of the gift in place of the donor.

Q. What as to the case?

R. Remigius certainly could revoke the donation. For that cession of his right of revoking the donation could not validly be made against the clear disposition of the law. Besides, the intention of Remigius certainly was not to renounce his right if the condition were not fulfilled; otherwise he would not have added it to his donation. Nor was it to renounce his right on account of an ungrateful mind; otherwise he would not have made this donation to a friend rather than to a stranger. Wherefore Remigius, from this double head, can juridically seek revocation of his donation. For it is not revoked by full right for this double reason. I. M. 1022. But since Remigius himself, the donor, began the action of revocation before the judge, his heirs can prosecute it. C. I. 1082; C. G. 957. - G. 809, 810.