§ II. On the Cases in Which Donations Do Not Obtain Their Full Effect

806. • If someone becomes heir of him from whom he previously accepted something, and the deceased established nothing expressly by which equality among the heirs would be derogated from, every disposition, whether direct or indirect, by which that equality is injured, is supposed in his intention to have been only a temporary concession of the fruition of the thing given. Therefore, when the donor has died, the thing itself must be brought back or reduced into the succession in proportion to the right injured, unless nevertheless the donee, content with it, should prefer to renounce the inheritance. This is what the law calls collation. - Art. 843 and following ¹.

¹ Since the Author is accustomed to bring forward what things are to be held according to Common or Roman Law, someone could suspect that those things also which are contained in this little part are common to each law, Roman and Gallic. But the matter is not so, since those things pertain to Gallic law alone. But in Roman law, if certain outsiders have been mixed with descendants instituted, or called to the inheritance together with descendants, neither do the children confer to these outsiders, nor the outsiders to the children; but rather, before any collation, only that which was truly left by the deceased is to be divided among the children and the instituted outsiders according to the will of the testator; then afterwards, the outsiders now having been dismissed, the descendants confer among themselves and divide the things which are to be conferred, as if no outsider had been joined to them from the beginning. See Voet (In Pandect., book 37, title 6, n. 6).

Collation therefore is the act by which one of the heirs brings back to the sum of goods which the testator left to be divided among the heirs those goods which he accepted from the donor, so that they may be divided equally among all.

Reduction, however, as they say, of a donation or legacy is its rescission in proportion to the excess above the disposable quantity; which rescission indeed must be made by public authority.

807. Principles. - I. Every heir coming into the succession must bring back whatever he accepted from the deceased through a gratuitous disposition among the living, unless there is an express dispensation on the part of the donor. Thus from Roman and Gallic Law. - St. Lig., n. 954.

II. Collation can be made in two ways: 1. in kind, that is, by bringing back the donated thing itself; 2. by receiving less. - The former mode is made ordinarily in immovables, but the latter in movables. Cod. civ. 858 and following.

III. Various donations are exempted from collation, namely: 1. if the testator gave any things by expressly exempting the heir from collation, or by title of a preferential right within the limits of the part concerning which he could dispose; 2. if expenses were made by the donor in favor of someone, e.g. for aliments, clothing, customary gifts, etc. Likewise expenses of nourishment, education, weddings, learning an art, and similar things. - St. Lig., n. 955. - Cod. civ. Gall. 843, 852.

Nor are manual donations necessarily to be brought back, unless they are of the greatest moment. - Gousset, n. 794, etc.

808. Questions. - It is asked, 1. Whether the fruits of bring-back-able things which the donee perceived before the death of the testator must be brought back?

I reply negatively, because they are not subjected to collation except from the day on which the succession was opened; otherwise the donation would have been altogether useless. - Cod. civ. 856.

It is asked, 2. Whether a son is held to bring back those things which he spent badly from paternal goods, e.g. in games, drinking, etc.? I reply negatively, unless the expenses were excessive; by no means, however, if he did not spend more than the father would have been content that he spend on honorable recreations. - St. Lig., n. 957.

It is asked, 3. Whether expenses made by the father for the sake of the son for a doctorate, benefice, studies, books, etc., etc., must be conferred?

I reply negatively, because these tend to the common good of the family, namely to its honor, advantage, etc. From another side, they are judged gratuitously given by the parents to the son. - St. Lig., n. 955. Make exception, however, if extraordinary expenses are made ².

² They can deservedly be judged extraordinary even if there was merely bestowed upon the son that by which he was scantily supported in a distant city by reason of studies, provided that this, although modest and scanty in itself, nevertheless in comparison with the slender resources of the family must be held as something great, e.g. if the question concerns the son of a woodworker.

809. • It is asked, 4. Whether money employed to redeem a son from military service must be conferred?

I reply affirmatively, if he is redeemed for his own utility, because equality seems to require it; otherwise, if the son is redeemed for the utility of the father, e.g. infirm, old, or poor, or for sustaining the family, because the family which receives the advantage must also bear the burden. - Rogron, in art. 851, Cod. civ. - Gousset, Cod. civ. commente, art. Cod. civ. 852.