daughter, had a mortgage lien, or privilege, on the whole property for more than $100,000, which (as they contended) was more than the whole property could possibly have produced at the time of the sale.

If these statements were true, they would go far to remove the imputation of fraud in the proceedings complained of; for there would have been no motive for fraud if the just rights of the heirs precluded the possibility of a surplus for the general creditors. The matter will be better understood, however, by a short history of Oliver J. Morgan's estate. His wife, Narcissa Deeson, had died in 1844, leaving two children by him, namely, Julia and Ann. Julia married, first, one Keene, by whom she had several children; and, secondly, Oliver T. Morgan, (a nephew of Oliver J.,) by whom she had a daughter. Ann married a Mr. Kellam, by whom she had a son, Oliver H. Kellam; and the latter had a son, Oliver H., (whom, for convenience, we will call Oliver H. Kellam, Jr.,) and died, leaving a widow, Melinda M., and his infant son, Oliver H., Jr. Thus, Oliver H. Kellam, Jr., became sole heir of his grandmother, Ann, and was himself represented by his mother, Melinda, as his natural tutrix. Melinda afterwards married John A. Buckner, and by him had a daughter. Oliver J. Morgan (sometimes called Gen. Morgan) had a large landed estate, situated on the Mississippi river, in Carroll parish, Louisiana, consisting of five plantations contiguous to each other, Albion and Wilton in the center, Melbourne to the south-east, down the river, and Westland and Morgana to the west and north-west, amounting altogether to over 15,000 acres of land, much of it rich cotton land. He also had a large number of slaves, and considerable movable estate. The greater part of this property was community property; but some of it had been acquired after the wife's death. Only one-half of the community property belonged to Oliver J. Morgan; the other half belonging to his two daughters as heirs of their mother. Ann having died, her share was inherited by her grandson, Oliver H. Kellam, Jr. In 1857 Oliver J. Morgan filed a petition in the district court of Carroll parish, for a partition of the estate. An inventory was taken, answers were filed by Julia Morgan, (who was then living,) and by Melinda M. Kellam, as tutrix of her minor son, and evidence was taken as to the amount of improvements. The slaves were inventoried at $125,715.60, and were divided between the parties. The lands were inventoried, but the appraisers reported that they could not be conveniently divided, and recommended that they should be sold. An order of sale was accordingly made, and the sale took place January 18, 1858, and Oliver J. Morgan himself purchased all the lands for $362,201.80. The value of his improvements was apappraised at $92,219, leaving a balance of $269,982.80, the one-half of which, $134,991.40, belonged to the heirs. One-half of this sum, or $67,495.70, was due to Julia Morgan, and the other half to the minor, Oliver H. Kellam, Jr. Although the sale was for cash, no money was paid. Julia Morgan and her husband, Oliver T. Morgan, executed a request that the money coming to her should be left in her father's hands; and Mrs. Kellam acquiesced in the same course with regard to the share of her infant son. Thus Oliver J. Morgan became absolute owner of the whole landed property, but was indebted to his daughter Julia, and to his great grandson, Õliver H. Kellam, Jr., each in the sum of $67,495.70. A certificate of the sale, signed by the sheriff and O. J. Morgan, was filed in the court as part of the proceedings in the cause, stating the fact that the money was not paid, but remained in O. T. Morgan's hands. By virtue of this sale a vendor's privilege arose in favor of the heirs; but it is declared by the Civil Code of Louisiana, art. 3238, that "the vendor of an immovable or slave only preserves his privilege on the object when he has caused to be duly recorded, at the office for recording mortgages, his act of sale." It appears from the recorder's certificate that this was never done in this case.

As Oliver J. Morgan had but one descendant by his daughter Ann, and several by his daughter Julia, he desired, as far as possible, to equalize their ultimate portions in the succession of his estate; but having two heirs, his daughter Julia, and great-grandson, Oliver H. Kellam, Jr., he had the power of disposing of only one-half of his estate, and the two heirs would be forced heirs for one-fourth each. Civil Code, art. 1480. He determined, therefore, that his great-grandson, Oliver H. Kellam, Jr., should have only the onefourth which the law secured to him as forced heir, and that his daughter Julia should have the other three-fourths of his estate. To insure this object, on the ninth of March, 1858, he executed an act of sale and donation to his daughter Julia, in which it was stated that for the purpose of paying her the sum of $67,495.70 which he owed her, and to give her three-fourths of his landed estate, and to Oliver H. Kellam one-fourth, according to the estimates put upon the portions conveyed to each, he gave to her, by way of donation, certain described lands, composing the Wilton and Albion plantations, 3,047.86 acres, estimated at $50 per acre; and the Morgana and Westland plantations. estimated at from $45 to $10 per acre; the whole amounting to 11,477.79 acres, estimated at $304,254.22; and leaving the Melbourne plantation for his great-grandson, though there is no evidence that it was ever conveyed to him. The act of donation to Julia reserved the donor's usufruct for life, and declared that he was to retain possession of the property, with the revenues arising therefrom, till his death. And it was further declared that the act of donation, as [well as] delivery under it, was to take place and effect on the day of the donor's death. This act was signed by Oliver J. Morgan, Julia Morgan, and Julia's husband, Oliver T. Morgan. and was duly recorded in the recorder's office.

Such a donation, namely, to take effect at the death of the donor,-so far, at least, as it is gratuitous,-is a donation mortis causa. Article 1455 of the Civil Code of Louisiana defines a donation mortis causa to be an act to take effect when the donor shall no longer exist. And article 1563 declares that "no disposition mortis causa shall be made otherwise than by will and testament. All other form is abrogated." It is added that the name is of no importance, "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 by will." The donation in question had not the form of a will, and was never treated or proved as such; and by the last will of Oliver J. Morgan, executed but a few months before his death, he revoked all former wills made by him.

If the document in question could be regarded as a donation inter vivos, it would still be void for another reason. By it the donor reserves the usufruct of the land to himself, during his life; but by article 1520 of the Civil Code, treating of donations inter vivos, it is declared that the donor may dispose for the advantage of another of the enjoyment or usufruct of the immovable given, but cannot reserve it for himself." It has been decided by the supreme court of Louisiana, in a number of cases, that a donation of land or of a slave, reserving the use to the donor for life, is void. Lagrange v. Barre, 11 Rob. 309; Dawson v. Holbert, 4 La. Ann. 37; Haggerty v. Corri, 5 La. Ann. 433; Davis v. Carroll, 11 Ann. 705; Carmouche v. Carmouche, 12 La. Ann. 721. It may be urged that there was a consideration for the act, and that this prevented it from being void. But that consideration, as shown by the account contained in the act itself, was only $67,495.70 due to Julia, (which the act was to satisfy,) and $9,530.72 to be paid by her to Oliver H. Kellam; amounting in all to $77,026.42; while (by the same account) the value of the land conveyed by the act was $304,254.22. So that the consideration or charge, in pecuniary estimation, was only one-fourth of the value of the whole property conveyed. The exact account of the value of the lands, and of the rights

of the heirs in reference thereto, as made up by Gen. Morgan himself, and embodied in the act of sale and donation to Julia, is as follows:

"Whole amount of community lands,

"Lands acquired since the dissolution of the community,

"Whole amount of land,

"Deduct amount due to heirs arising from sale of community lands on the eighteenth of January, 1858, to each $67, 495.70,

"Balance divided by four,

"Portion coming to Oliver H. Kellam,

"Amount due him as above,

"Entire interest of Oliver H. Kellam, in estimated
value of lands,

"Three-fourths interest for Julia Morgan,

"Amount due as above,

$362,201 80

75,760 00

$437,961 80

134,991 40

$302,970 40

$75,742 60

67,495 60

$143,238 30

$227,227 80

67,495 70

$294,723 50

"Value of land conveyed in this deed to Julia Morgan, "Deduct entire interest,

$304,254 22

294,723 50

9,530 72"

"Entire interest of Julia Morgan,

"Excess to be accounted as before stipulated,

This account, better than anything else, explains to the eye the motives and intent of Oliver J. Morgan in executing the act of sale and donation under consideration. Now, the Civil Code, art. 1510, divides donations inter vivos into three kinds, the purely gratuitous; the onerous, which is burdened with charges; and the remunerative, of which the object is to recompense services rendered. By article 1513 it is declared that "the rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one-half that of the charges, or of the services." In the present case, the value of the object given exceeded, not merely by one-half, but by nearly three times that of the charge or consideration. The act is subject, therefore, to the incidents and conditions of a donation, and it is void by the express letter of the Code, unless it can be sustained in part by virtue of its being a sale in part and a donation for the residue.

Pothier, writing under the old law, says that where the charges of an onerous donation are of less value than the thing given,-for example, 2,000 livres, when the thing given has the value of 3,000 livres,-the act will be of a mixed nature-a sale for two-thirds and a donation for one-third. Contrat de Vente, Nos. 613, 614. Zachariae, professing to give the modern French law under the Code, states it substantially as the former law is stated by Pothier, and this would probably be the construction of the Civil Code of Louisiana. By this rule, the act in question would have been a sale for one-quarter of the land contained in it, and a donation for three-quarters; or, to speak with accuracy, the proportion would be as $77,026.42 to $227,227.80,-the whole amount conveyed by the act being $304,254.22. If the old rule applies under the specific provisions of the Code, the act was a good conveyance for the above proportion, and void as to the residue. As this matter (of validity in part)

was not discussed before us, it may come up for consideration by the circuit court, if called upon to instruct the master as to the ulterior disposition of the proceeds of any sales that may be made of the lands in controversy. As the representatives of Julia Morgan allowed the lands to be sold in 1869, they cannot claim any portion of them now specifically as lands; but they may be entitled in equity to such proportion of the proceeds, as the act of sale and donation was a sale, and not a donation. The whole value of the lands was shown by the account to be $437,961.80. Of this amount the sum of $77,026.42, the only real consideration of the act, is about 17.6 per cent. Should all the lands be sold, the heirs of Julia Morgan may be entitled to this proportion of the proceeds free and clear of all debts. We do not now decide this question. For the present purpose, it is enough to say that it is very clear that the act of donation did not convey to Julia Morgan three-fourths of the land as claimed, and did not, in fact, convey to her even one-fifth of the land, if it conveyed any portion thereof.

But prior to these transactions, and probably not long after his wife's death, Oliver J. Morgan had placed his daughter Julia on the Westland, and (perhaps) on the Morgana, plantation, and his grandson Oliver H. Kellam on Melbourne; the latter being succeeded by his widow, Melinda M. Kellam, and her minor son. The two families continued to occupy these portions of the property, respectively, until the sale made in 1869, and Julia Morgan and her representatives also succeeded to the possession of Wilton and Albion plantations after her father's death. Whether Oliver J. Morgan had doubts of the validity of the donation made to his daughter, or not, he subsequently made a will by which he substantially confirmed to her the benefit which he intended by it. This will is dated May 1, 1860, and the testator, after directing the payment of all his debts, and giving certain legacies, gave and directed as follows:

"Fourth. I give and bequeath unto my beloved daughter, Julia Morgan, one-half of all the residue of my estate, it being my intention thereby to give to her all that portion of my estate that I have a right to dispose of over and above the portions going to my forced heirs; and in the event of my said daughter Julia dying before I do, then it is my will, and I do hereby bequeath unto her children, Narcissa Keene, Alexander C. Keene, William B. Keene, Morgan Keene, and Julia H. Morgan, or such of them as may be living at my death, the said one-half of my entire estate as above; it being my will that my said daughter shall have, inclusive of her forced heirship, threefourths of my entire estate; but in the event that should she die before I do, then it is my will and the express intention of this testament that those of her children who may be living at my death shall have the said three-fourths of my estate.

"Fifth. I do hereby appoint and ordain Oliver T. Morgan, my nephew and son-in-law, executor of this my last will and testament, without requiring him to give security as such."

Oliver J. Morgan died October 4, 1860, and his will was proved in the same month, and an inventory of his estate was made November 7th, in which his lands were appraised at $947,153.80, his slaves at $196,961, and his movable property at $38,200; total, $1,182,314.80. Julia Morgan died prior to 1868, leaving a will, of which her husband, Oliver T. Morgan, was executor. Melinda M. Kellam married John A. Buckner, by whom she had a daughter, Mollie Buckner. Oliver H. Kellam, Jr., died without issue, leaving his mother as his sole heir; and she soon after died, leaving her infant child, Mollie Buckner, her sole heir, who thus came to be the sole heir and representative of Ann Kellam.

Notwithstanding the large estate left by Oliver J. Morgan, he died considerably in debt, and owed, among others, to William Gay, the complainant, the amount before stated. The coming on of the civil war produced a great

change in the value of the property; the slaves were a total loss; and, no doubt, much other property was injured or destroyed; but through the management of agents, and in other ways, considerable income was derived from the lands prior to the sale which took place in 1869. The crop of 1860 was over 2,500 bales of cotton, which must have produced at least $90,000 soon after Gen. Morgan's death. The sum of $21,870.68 was recovered from the government for cotton collected under the superintendence of army officers in 1862.

The defendant Buckner, being examined as a witness, states that "Montague had charge of and cultivated Melbourne and Wilton in the year 1863, and H. B. Tebbetts had charge of some of the places during the years 1864 and 1865. In 1866 H. B. Tebbetts rented Wilton and Melbourne. Don't think he took Albion. He was to pay ten dollars per acre rent for all the land that he cultivated. Tebbetts promised Matt. F. Johnson and witness to pay ten dollars per acre for such land as he should cultivate on Melbourne and Wilton in 1866. The most of the land was overflowed on Melbourne in 1866, and witness don't know how much land was cultivated. Wilton was not overflowed in 1866, to his knowledge. Witness states that Tebbetts paid him $3,000 for the rent of Melbourne in 1866. Don't know how much he paid Matt. F. Johnson for Wilton, but that the rent was coming to Matt. F. Johnson from Tebbetts, according to the contract. Matt. F. Johnson and Samuel L. Clambliss cultivated Wilton in 1867 together; that is to say, a portion of the place. Charles Atkins cultivated a small portion of Melbourne in 1868, as witness' agent and manager. Very little was made on the place in 1868. Witness don't remember who cultivated Wilton and Albion in 1868." Henry Goodrich, a planter, nephew of Oliver J. Morgan, states that he had charge of Wilton and Albion in behalf of the heirs, from December, 1868, till April, 1873, and that in 1869 these plantations produced 800 or 900 bales of cotton; and about 700 bales in each of the years 1870, 1871, and 1872; and that during these four years the price of cotton averaged about $60 per bale net. Dr. Devine, another witness, states that he, with two others, hired about 100 acres of Wilton in 1869, and they received about 30 bales apiece, or nearly a bale to the acre, and sold it for 27 to 30 cents per pound, or about $120 per bale. So that the annual product of Wilton and Albion alone in these years was not less than from $40,000 to $50,000, and that of Melbourne, half that amount; and while the result in the previous years, from the close of the war to the beginning of 1869, was undoubtedly less, it must have amounted to a considerable sum. Adding together the amount of the movable estate, the proceeds of the crop of 1860, the sum received from government, and the income realized from the landed estate down to 1869, the aggregate was probably not less than $200,000; all of which was first applicable to the payment of the debts due from the estate. But, as the outside debts were not paid, the heirs or executors must have received it. The executor's final account is in evidence, and does not show that this money ever came into his hands; and the proof is very strong that he allowed the heirs to appropriate it. The amount which they thus appropriated, as well as the rental value of the plantations occupied by them before Gen. Morgan's death, was properly chargeable against any claims that they had against the estate. How much they did receive nowhere appears. No credit is given therefor.

As to Julia Morgan's interest, it is not claimed that the estate was in debt to her; but it is claimed, and was claimed at the time of the sale in 1869, that her succession was entitled to three-fourths of the property by virtue of the act of donation made to her in 1858, and that this portion of the property was not subject to the debts of Gen. Morgan, except the debt due to Buckner as tutor of his minor child. It was conceded to be subject to this debt, perhaps for the purpose of giving greater force to the sale, as there was evidently an understanding between the parties, as we shall hereafter see. But

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