author: HUMPHRIES, Judge.

text:
    Henry BELL, Sr., et al., Plaintiff-Appellant, v. Mitchell J. BELL et al., Defendants-Appellants.
    No. 5692.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 18, 1976.
    Rehearing Denied Dec. 15, 1976.

      Codings & Codings, by Robert L. Cod-ings, Lake Charles, for plaintiff-appellant.
    Jack Rogers, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, WATSON and HUMPHRIES, JJ.
   HUMPHRIES, Judge.

Plaintiffs in this cause, Mr. Henry Bed, Sr. and Edward Bed, seek judgment declaring an act of sale to Mitchell Bed (plaintiffs’ brother) by Azenor Bed (plaintiffs’ father) to be a simulation or a donation in disguise. Judgment was rendered by the trial court rejecting plaintiffs’ demands.

The essential facts reveal that at the time of the conveyance in question Azenor Bed was ninety-two (92) years old and living in a nursing home in Lake Charles. There is neither evidence nor is it asserted that Mr. Bed was in any way not competent to execute the transfer. Prior to moving into the nursing home Mr. Bed lived in his own home in Kinder, Louisiana.

From the record, it is exceedingly difficult to reconstruct the exact chronological sequence of events. However, it does seem clear that Azenor Bed was married to and living with Mathilda Marcantel from about 1965 to 1971. During the marriage the couple resided in Kinder, Louisiana on the property which is the subject of the present dispute. Because of the advanced age of the couple, assistance was required by them to care for their daily needs. Mitchell Bed and Sovena (his wife) lived in Kinder and rendered the assistance required by Mitchell’s father and Mathilda Marcantel. Their tasks included: providing transportation for doctor’s visits; purchasing groceries; cleaning the house; caring for the couple when they were sick; cooking the meals; maintaining the yard around the house, etc. These facts were testified to by Mitchell and Sovena Bed, and corroborated in the testimony of Ida Bed Lindquist (Azenor Bed’s sister) and Lovelin Bed (Azenor Bed’s grandson).

Shortly after the death of Mathilda Mar-cantel in early 1971 Henry Bed, another son, came to stay with Azenor Bed. The purpose of the stay was to help the older man around the house. This stay lasted for about four to five months. It was testified to by Mitchell and Lovelin that Henry was recompensed for his assistance at a wage of $5.00 per day. Further, Lovelin Bed stated that he paid Henry $800 for these services from a fund of money which he was entrusted with by Azenor Bed. This $800 fund coincides with the money received from a sale of some of Azenor Bed’s furniture. It was stated by Henry Bed in his testimony that after his departure in 1971 he never visited or saw his father again.

In the latter part of 1971 or early 1972 after Henry’s departure, Azenor Bed entered a nursing home in Lake Charles. Subsequently Mr. Bed moved to a second nursing home in Lake Charles where he lived until his death December 28, 1973. During the period that Azenor Bell lived in the nursing homes the sums of money that Mr. Bell had or received by way of social security and inheritance were managed and distributed by Mitchell Bell. This fact is evidenced by the receipts placed in evidence indicating Mitchell paid for Azenor Bell’s medicine and the additional cost of Mr. Bell’s private room in the nursing home.

Further, Mitchell and Sovena Bell testified that they continued to assist Azenor Bell while he was in the nursing home by procuring and delivering his medicine; preparing special foods that he liked; bathing and shaving him; providing transportation for ventures outside of the nursing home for his recreation and enjoyment. These facts were corroborated by Lovelin Bell in his testimony. It is noted that each of these visits or errands necessitated a trip from Kinder to Lake Charles by Mitchell and Sovena Bell. It was the testimony of Mitchell Bell and Sovena Bell that these trips were taken every other day while Aze-nor Bell was in the nursing homes.

On February 26, 1973 the conveyance complained of in the instant suit was executed by Azenor Bell to Mitchell and Sove-na Bell. As recited in the deed the transfer included the home Azenor Bell had in Kinder, Louisiana for the stated consideration of $5,000 cash. It was readily admitted by defendants that the $5,000 was never paid. On the same day a counter letter was drawn up between the parties to the transfer stating that the true consideration for the conveyance was not $5,000 but was the proximate value of services rendered and to be rendered Azenor Bell by Mitchell and Sovena Bell. Further, the grantor, Azenor Bell, retained the usufruct of the property until death.

The act of sale was recorded in October 1973, but the counter letter was never recorded.

The trial court gave effect to the counter letter to the extent of the retention of the usufruct by Azenor Bell. LSA-C.C. art. 2239. This retention of the usufruct by the vendor raised the rebuttable presumption that the sale was a simulation according to LSA-C.C. art. 2480. It was the conclusion of the trial court that defendant Mitchell Bell had overcome this presumption by establishing that the sale was contracted in good faith with consideration and was clearly intended to convey title to the property.

The trial court observed that the care of an elderly and infirm person is expensive when measured in time and money. Further, the trial court found that Mitchell and Sovena Bell expended such time and energy to have earned an amount equivalent to the $5,000 stated as consideration.

Plaintiffs on appeal urge that the record shows that the money used by Mitchell Bell for the benefit of Azenor Bell was in fact Azenor Bell’s money. Also it is urged that the record shows that the services claimed to be rendered by Mitchell Bell were in fact provided by the nursing home where Aze-nor Bell lived. Their contention is that the defendant has not overcome the presumption raised by the retention of a usufruct because he has not shown that consideration was given. Alternatively, they argue that even if consideration was given it was below one-quarter of the value of the property. Therefore, it is a donation in disguise; having a reservation of the usufruct in this donation in contravention of LSA-C.C. art. 1533 and not being in proper notarial form pursuant to LSA-C.C. art. 1536 it must fail as a donation.

[1] At the outset of the discussion of plaintiff’s primary contention, that there was a lack of consideration for the sale, we note that the trial court’s findings are entitled to great weight and will be affirmed on appeal unless shown to be manifestly erroneous. Further we note, that a party to an act may prove by parol evidence that consideration, although completely different than that recited in the act of sale, was in fact given. LSA-C.C. art. 2276; Citizens Bank & Trust Co. v. Willis, 183 La. 127, 162 So. 822 (1935); Wise v. Johnson, 241 So.2d 534 (La.App. 2 Cir. 1970), writ denied, 257 La. 604, 243 So.2d 273; Bash v. Sims, 210 So.2d 180 (La.App. 2 Cir. 1968).

From the record it is clear that Mitchell and Sovena Bell rendered services and assistance to Azenor Bell of varying nature since at least 1970. As outlined in the statement of facts herein, these services included tasks the nature of which occur daily. These services were freely given with no expectation of compensation. It is equally certain that Azenor Bell sought to recompense Mitchell and Sovena Bell for these past services through an act of sale. This intention of Azenor Bell was precisely delineated in a counter letter executed in conjunction with the sale, although unrecorded. This counter letter does not deviate the original recorded act of sale in the sense of establishing that the act of sale was not intended to transfer ownership of the property. This letter merely retained the use of the property in the vendor.

This retention of the use of the property raises the rebuttable presumption that the sale is a simulation according to LSA-C.C. art. 2480. This court in Russell v. Culpepper, 337 So.2d 226 (La.App. 3 Cir. 1976) held that the purpose of Article 2480 when read in conjunction with the preceding Article 2479 dealing with delivery of immovables is to raise the presumption that there has been no delivery, hence no sale. Further, it is pointed out that LSA-C.C. art. 2479 presumes delivery of an immovable as accompanying the act of sale.

It is incumbent upon Mitchell Bell to establish good faith and the reality of the sale when LSA-C.C. art. 2480 is applied. Usually the reality of the sale is shown by the intention to transfer property by the vendor and a real and true consideration given by the vendee. In line with the jurisprudence is that any sale which is accompanied by any consideration, no matter how slight, is not a simulation. Milano v. Milano, 243 So.2d 876 (La.App. 1 Cir. 1971); Russell, et al. v. Culpepper, 337 So.2d 226, [La.App. 3 Cir. 1976 (No. 5486)]; Kinney v. Kinney, 150 So.2d 671 (La.App. 3 Cir. 1963). The trial court in the instant case made a specific finding that Mitchell and Sovena Bell had expended enough time and energy in rendering assistance to Azenor Bell over a period of years to have earned an amount equivalent to the $5,000 consideration recited in the deed.

The trial court’s reasoning that consideration for a conveyance of reality may take the form of past services rendered is amply supported by the jurisprudence. Bowlus v. Whatley, 129 La. 509, 56 So. 423 (La.1911); Russell, et al. v. Culpepper, 337 So.2d 226 [La.App. 3 Cir. 1976 (No. 5486)]; Robinson v. Guedry, 181 So. 882 (La.App. Orleans 1938); Succession of Viola, 138 So.2d 613 [La.App. 4 Cir. (1962)]. In the case of Bowlus v. Whatley, supra, it was stated that the rendition of services creates an obligation, and that the extinguishment of such an obligation may serve as a legal basis for the trial court’s determination. As indicated by our recital of the facts from the record there was an intent to transfer the property with adequate consideration given (the extinguishment of a pre-existing obligation), the trial court properly concluded that the burden of proof of these facts was overcome and the sale could not be set aside as a simulation under LSA-C.C. art. 2480.

[2] Second, plaintiff contends that the transfer, even though not a simulation, is in fact a donation in disguise. Plaintiff states, this being the case, the donation in disguise (See LSA-C.C. art. 2444) must fail because it contravenes LSA-C.C. arts. 1533, 1536. The latter articles hold that for a donation inter vivos to be a valid transfer the donor may not reserve to himself the usufruct of the thing given and that the act of conveyance must be in authentic form — before two witnesses and a notary public.

The complaint as to form is predicated on the fact that the evidence adduced at trial indicates that the act of sale was executed by Azenor Bell while he was in a nursing home in Lake Charles, and was not executed in the presence of a notary public, although later signed by the notary public.

This argument is without merit. The trial court concluded that the property was given for services rendered. Under the relative codal provisions dealing with donations inter vivos this act could not be classified as a true donation but rather a remunerative donation under LSA-C.C. art. 1523. LSA-C.C. art. 1526 states that the rules peculiar to donations inter vivos do not apply to remunerative donations unless the value of the thing given exceeds by one-half the value of the services rendered. The trial court held the services to be commensurate with the $5,000 consideration recited in the act of sale. We note that plaintiff produced no evidence to establish that the property was worth substantially more. Therefore, LSA-C.C. arts. 1533 and 1536 are not applicable unless there is a clear showing that the value of the thing exceeds by V2 the value of the services. [SEE: Succession of Dopler, 40 La.Ann. 848, 6 So. 106 (1888); Fenger v. Cagnolatti, 292 So.2d 901 (La.App. 4 Cir. 1974)].

The judgment of the trial court is correct.

AFFIRMED.

WATSON, J., concurs with serious reservations for the reasons expressed in dissenting opinion, Russell v. Culpepper, 337 So.2d 226 (La.App. 3 Cir., 1976).


source: Caselaw Access Project

author: PAVY, Judge.

license: Public Domain

text:
    Succession of Martha Louise Hunter PIERSON (Pattie Hunter Pierson).
    No. 5489.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 19, 1976.
    Rehearings Denied Dec. 15, 1976.

    Writs Refused Feb. 11, 1977.

      Lewis 0. Lauve, Alexandria, for defendant-appellant, David Pierson.
    Pharis & Pharis by F. Jean Pharis, Alexandria, for defendant-appellant.

      Alfred A. Mansour, Alexandria, William J. Guste, Jr., Atty. Gen., New Orleans, for Louise Pierson Marshall.
    Bolen, Halcomb, Bolton & Erwin by James A. Bolen, Jr., Alexandria, for plaintiff-appellant, Diane P. Whaley.
    Gist, Methvin & Trimble by John W. Munsterman, Alexandria, for Security National Bank.
    Provosty & Sadler by Richard E. Chau-doir, Alexandria, for Guaranty Bank & Trust Co.
    Before HOOD, DOMENGEAUX and PAVY, JJ.

       Hood, J., voted to grant a rehearing being of the opinion that we erred in requiring the Estate of Hunter Pierson to collate the rental value of the Marge Street premises.

   PAVY, Judge.

Mrs. Martha Louise Hunter Pierson, widow of Dr. Clarence Pierson, Sr., died in February, 1971, leaving as her heirs at law two sons, Hunter Pierson and David Pier-son, a daughter, Mrs. Louise Pierson Marshall, and a granddaughter, Mrs. Diane Pierson Whaley, the child of Clarence Pier-son, Jr., a predeceased son. She left a will bequeathing the disposable portion of her estate to Hunter Pierson and additionally leaving minor or sentimental items to several parties. The will was duly probated and Security National Bank of Alexandria eventually named executor. Mrs. Whaley and Mrs. Marshall each filed petitions against both David Pierson and Hunter Pierson in the estate proceedings to compel reduction and collation of numerous donations including those contained in the will. Both these defendants answered and reconvened to compel Mrs. Marshall and Mrs. Whaley to collate certain inter vivos donations. Hunter Pierson died and his executor, Mrs. Anne Pierson Patten, a daughter, was substituted as a party litigant in his place.

After a lengthy trial of several days involving voluminous documentary evidence, the trial judge rendered reasons for judgment in which he found that no collation was due by the Estate of Hunter Pierson, that David Pierson was obligated to collate in the sum of $23,487.32, that Mrs. Marshall was obligated to collate in the sum of $21,-031 and Mrs. Whaley was obligated to collate in the sum of $1,184. The question of computing the value of the estate for reduction purposes was deferred to further proceedings by the succession representative. All parties have appealed from a judgment in conformity with the reasons for judgment.

Dr. Clarence Pierson, Sr., decedent’s husband, died in 1934. His estate was substantial but not very liquid and a large portion of it was sold to pay debts. Mrs. Pierson purchased a 30-acre tract at the succession sale. This land was developed into Mimosa Place Subdivision, a choice residential area in Alexandria. By sale of lots in this subdivision from the late thirties until her death in 1971, Mrs. Pierson sustained herself and accumulated an estate which was inventoried at a gross figure of $144,000. Over the years certain residual assets of Dr. Pierson’s estate were sold nonjudicially and these proceeds along with dividends and other income was distributed to the heirs.

At the time of Dr. Pierson’s death in 1934, Hunter was 11 years of age and Clarence, Jr., David and Louise were all of age. Hunter completed his law studies in 1947 and returned to Alexandria where he lived throughout his mother’s life. David worked around Alexandria until World War II in which he served and after which he worked in New Orleans until 1956 when he returned to Alexandria and remained there until his mother’s death. Clarence, Jr. lived around Alexandria until his death in 1951, and his daughter, Mrs. Whaley, continued to reside in Alexandria throughout her grandmother’s life. Mrs. Marshall moved to New Orleans in 1954 or 1955 and continued to reside there throughout her mother’s life.

In Louisiana, equality between heirs of the same degree is the cardinal principle of our law of inheritance, and, in order that it may be secured, “collation is always presumed, where it has not been expressly forbidden.” Whatever is given by a father to a child is presumed to have been given as in advance of the portion which the child may, one day, expect to receive from the succession, and that portion, in the absence of express declaration of the parent to the contrary can be no greater than the portion of another heir in the same degree; hence what has been so received must be collated or accounted for, in the partition of the inheritance. Nor does it make any difference whether the advantage which a child has received has come to him directly or indirectly, by donation pure and simple, by donation disguised as a sale, by a sale for an inadequate price, or otherwise; every such advantage, not unequivocally given as an advantage, is subject to collation.

The claims for collation cover a period from shortly after Dr. Pierson’s death in 1934 until Mrs. Pierson’s death in 1971. In many instances the evidence as to a particular transaction is incomplete although it is apparent that, in most instances, the parties did place in the record everything of probative value which was available. There are a total of twenty claims for collation urged between all the parties. Some are easily disposed of as obviously either meritorious or without merit. Others present serious questions of fact or law. We will now proceed to consider these individually.

A claim for collation was made against Mrs. Louise Pierson Marshall for money gifts from her mother in the amount of $1,015.48. In support of this claim, there were filed in evidence twelve checks issued by decedent, all but one to Mrs. Marshall, all during the years 1937 to 1939 and totall-ing $1,207. Additionally, there was filed in evidence a receipt from Mrs. Marshall to decedent dated May 19, 1939 (none of the checks filed in evidence were dated subsequent to that date) totalling $1,015.48. This receipt listed checks totalling that amount. All the checks listed in the receipt are among those filed in evidence. None of the checks filed in evidence bear any notation necessarily indicating that they were not gifts or loans. All are in rounded dollar amounts except one for $51.48 which is in favor of “The Smart Shoppe” and which bears the indication that it was in payment of Mrs. Marshall’s account with that payee. Mrs. Marshall thought that many of the checks filed in evidence as well as others shown on a list which she had prepared could probably be explained as other than gifts or loans to her. She was unable to be express or specific except that she thought one of the checks filed in evidence and listed on the receipt represented a payment due her by her mother for shrubbery. However, this check was given in 1938 and she (Mrs. Marshall) receipted for it or signed the receipt listing it in 1939. Mrs. Marshall’s list of checks in her favor show some with definite notations that they were purposes other than gifts or loans. However, none of those listed in the receipt and filed in evidence as making up the $1,015.48 for which Mrs. Marshall receipted show any notation that they were for anything other than gifts or loans. Whether these checks represented gifts or loans is immaterial for debts are as much collatable as gifts. See 34 La.Law Review 782. We cannot imagine why the parties would have reduced to writing their understanding as to what had been received by Mrs. Marshall from her mother except to show the total loaned or advanced by the decedent. Accordingly, we conclude that there is sufficient proof to establish a collatable claim of $1,015.48 against Mrs. Marshall.

A claim for collation was made against Mrs. Marshall for the value of Lot 3, Block 5 of Mimosa Place, the subdivision developed by Mrs. Pierson. The records show a $1,000 cash sale to her by decedent in 1940. Mrs. Marshall admits no money was paid for the property but claims that she took it in fulfillment of a special bequest of $1,000 left to her by her father, which bequest she claims to have not otherwise received. In a deposition, Hunter Pierson claims that he had a receipt from her for the $1,000. An undated receipt for the $1,000 bequest is filed of record.

In her testament, decedent stated that the lot was a gift to Mrs. Marshall and should be collated. In a letter to her heirs accompanying her will and explanatory of her actions with regard to the settling of Dr. Pierson’s estate and her financial affairs in subsequent years, decedent stated that the $1,000 bequest to Mrs. Marshall had been paid out of life insurance proceeds payable to decedent. In the letter, she stated the lot was donated to Mrs. Marshall. The trial judge concluded that there was not sufficient proof to show that the payment of the $1,000 bequest served as consideration of the transfer. We cannot say he committed manifest error.

This lot was appraised at $21,031 at the time of the opening of the succession and the trial judge held that amount was subject to collation. See Civil Code Article 1270. However, we note that plaintiffs in reconvention (David and the Estate of Hunter Pierson) sought collation for this item in the amount of $15,000 only. The amount of collation must be restricted to that figure. We think the rule restricting recovery to the amount prayed for is applicable here. In Friedman Iron & Supply Co. v. Beaird Co., Inc., 222 La. 627, 63 So.2d 144 (1953) the court stated:

“Taking up these points in the order just presented, regarding the first it is hardly necessary to have to state that a plaintiff cannot recover a greater amount than what he prays for. That is elementary
Neither is there any merit to the contention that the pleadings have been enlarged by the admission of unobjected to testimony. The rule on‘this point, as stated in fof Shreveport v. Chatwin, 139 La. 531, 71 So. 791, 792, is that “evidence received without objection enlarges pleadings only when it would not have been admissible if objected to”. That rule governs this case as certainly evidence regarding the Pittsburg market, less freight, was admissible even over objection, to show market value as of March 9, 1949, the date of breach.
We are convinced that plaintiff, if entitled to damages, is limited to the amount of $6,360 as prayed for in its supplemental petition.”

Counsel for Mrs. Marshall argues that the amount of collation should be the sale price of the lot which she received in selling it shortly after the transfer to her. For this contention she relies on Civil Code Article 1271. Civil Code Articles 1270 and 1271 provide:

“Art. 1270. If the donee has voluntarily alienated the immovable property which has been given him as an advantage or extra portion, if he has permitted it to be seized and sold for the payment of his debts, or if it has been destroyed by his fault or negligence, he shall not be the less bound to make the collation of it, according to the value which the immovable would have had at the time of the opening of the succession, deducting expenses, as is provided in the foregoing article.
Art. 1271. But if the donee has been forced to alienate the immovable property, he shall be obliged to collate by taking less the price he has received from this sale and no more.
As, for example, if the donee shall be obliged to submit to a sale of the immovable for some object of public utility, or to discharge a mortgage imposed by the donor, or because the immovable was held in common with another person who has prayed for the sale in order to obtain a partition of it.”

The argument is made that Mrs. Marshall was forced to alienate the property because she was financially strapped, could do nothing with the lot and needed funds with which to start a business to support her family. The evidence does indeed reveal that she sold the lot because of her financial condition. However, we cannot construe the codal articles as contended for by counsel. Article 1270 clearly applies to this situation as a voluntary alienation. Article 1271 contemplates a legally, not economically, forced sale. We agree with the trial court’s ruling that the collatable amount is not restricted to the price for which Mrs. Marshall sold the property.

Another claim for collation is that of $1,184.80 by Mrs. Whaley representing the amount of the funeral bill of her father, Clarence Pierson, Jr., which was paid by decedent. The trial judge recognized it. The widow has acknowledged the payment and the records of the funeral home verify it.

The check for payment of the funeral bill was not in evidence. Most of Mrs. Pierson’s checks during this period were not available. Counsel for Mrs. Whaley argues the proof was insufficient that the payment by decedent was from her own funds and suggests that it may have come from monies of Dr. Pierson’s estate or monies of Clarence, Jr. that were under the control of decedent.

Clarence, Jr. died in 1951. In the late thirties, a final account was rendered in Dr. Pierson’s estate showing each heir was due the sum of $319.12. These sums were receipted for by all the children long prior to Clarence’s death. We are unable to understand how there could have been funds from the father’s estate still available in 1951. Although some property of the estate was sold nonjudicially after the final account, the evidence generally shows that these funds were distributed to the heirs upon the occasion of each sale.

In 1947 Clarence, Jr. was seriously injured and recuperated at his mother’s home. She handled some of his financial affairs during this time. In 1948, he issued a check to her for $5,000. Counsel suggests the funeral bill payment may have come from that source. The evidence shows that Clarence had considerable expenses in connection with his injury. He recovered and lived until late 1951. It is difficult to imagine how decedent still had some of this money after that length of time. The burden of proof does not require negation of a mere theoretical possibility.

Argument is further made that collation is not due on this item because there could have been no donation inter vivos in favor of a deceased person. Collation is due regardless of the form or manner by which the advantage to the descendant occurs. The law expressly states that it need not be in the form of a donation. See Civil Code Article 1248. Many collations arise from transactions or situations not involving a donation between living persons. We think the payment of this funeral expense was an advantage to Clarence’s estate or his daughter, Mrs. Whaley, and she should be made to collate the amount of it.

A claim was made for collation by Mrs. Whaley of the value of Lot 1 of Block 7 of Mimosa Place. In 1939, this property (part of that acquired by decedent at suc-cessional sale) was transferred by her to Mrs. Whaley’s father, Clarence Pierson, Jr.. This was in the form of a cash sale for the recited consideration of $2,000. Mrs. Maxine Cole Pierson, widow of Clarence Pier-son, Jr., testified that her husband actually gave no money in the transaction. It was her understanding that he had given up $2,000 of his share in the estate of Dr. Clarence Pierson. That estate was closed out in June, 1938 with a final account by the succession representative and a judgment of possession of $13,000 worth of property including some lots, corporate stock and cash of $2,552.96. There is in evidence a receipt by Clarence Pierson, Jr., dated August 29, 1938 for $319.12 being one-eighth of the cash remaining. David Pierson stated that the transaction was a donation. In her last will and testament and the letter accompanying it, decedent stated that the property was donated to Clarence Jr. In those same two documents, she acknowledged the gift of a lot to Mrs. Marshall, previously mentioned, and the gift of a lot to David Pierson which will be discussed later.

The trial judge resolved the issue by resort to the burden of proof, holding that the evidence was not sufficient to show a donation.

Pertinent here are the provisions of Civil Code Articles 2239 and 2444 which provide:

“Art. 2239. Counter letters can have no effect against creditors or bona fide purchasers; they are valid as to all others; but forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit, and shall not be restricted to the legitimate [legitime].
Art. 2444. The sales of immovable property made by parents to their children may be attacked by the forced heirs, as containing a donation in disguise if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale.”

In Laborde v. Dauzat, 158 So.2d 637 (La.App. 3rd Cir. 1963), the rule as to the burden of proof in these situations was set out as follows:

“The law provides that forced heirs have the right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit. LSA-C.C. Article 2239. In an action attacking an authentic act as being a simulation, the burden of proof rests primarily upon the party making the attack, to establish the facts upon which the alleged invalidity is based. If one alleging a simulation, however, produces evidence of circumstances which creates highly reasonable doubts or suspicions as to the honesty of the transaction, a prima facie case is considered as having been made out and the burden of proof is shifted to the party relying on the validity of that transaction to show that it was valid. Burch v. Nichols, La.App. 3 Cir., 126 So.2d 713; Broussard v. Broussard, La.App. 2 Cir., 132 So.2d 85; Landry v. Landry, La.App. 3 Cir., 140 So.2d 706 (cert. denied); Luquette v. Floyd, La.App. 3rd Cir., 147 So.2d 894 (cert. denied).”

We are particularly struck with a peculiarity of this case. Unlike the usual situation, here the parent-transferor did not remain silent as to the true nature of the transaction. We are not dealing with fraud on her part or that of her son. Neither are we confronted with sworn testimony by the transferee that a real consideration was given. It is common knowledge that, for title reasons, attorneys use cash sales to effect donations. Confusion could have very easily existed as to the difference between a share in Dr. Pierson’s estate and an advance on the inheritance in Mrs. Pierson’s estate. Upon considering all the facts and circumstances, we think that a prima facie ease is made out that no consideration was given and the burden to prove the contrary has not been discharged. Therefore, Mrs. Whaley must collate the value of this item. The realtor appraised it at $36,065 but in accordance with our previous ruling restricting collation to the amount sought in the petition, the collation for this item is set at $20,000.

The record reveals decedent paid the Veterans Administration a considerable sum as premiums on David’s National Service Life Insurance policy which he had obtained as a serviceman in World War II. This was a term policy with no cash value. In rejecting the claim for collation of these sums by David, the court stated:

“David had dropped the policy and Mrs. Pierson commenced paying the premiums and she was the beneficiary. Mrs. Pier-son was the only one that stood to benefit under this life insurance policy. David by no stretch of the imagination could ever have benefited by this insurance policy. In actuality, Mrs. Pierson never benefited by this policy as she predeceased David. These monies were not paid to David but were paid to the Veterans Administration and Mrs. Pierson paid those because she stood to profit by these premium payments. This was a speculative investment that did not bear fruit.”

After decedent’s death, the policy was dropped permanently. David was indifferent to its continuance and gained nothing from the payments. Although decedent’s estate was depleted by the payments, there was no “advantage” to David. We hold that under the particular facts of this case no collation is due. What might be the proper ruling with regard to premium payments on other types of insurance and in other fact situations is not before us now.

Several claims for collection by David revolve around his home. Decedent had given him a vacant lot on Pierson Street in Alexandria. In 1964 a home was built on the property and financed by a $12,000 loan secured by mortgage. David never lived in the home until after his mother’s death. According to him, it was rented and the rents applied to the mortgage note, taxes and insurance. Any excess was divided between him and his mother who had initiated the construction and who handled the receipt of rentals and payments. Very shortly before her death, decedent borrowed $9,000 and paid off the mortgage loan on David’s property. Claims for collation are made for (1) the value of the lot donated, (2) the mortgage payoff, (3) furnishing of the home, (4) payment of insurance and taxes on the period from 1964 to 1971, and (5) payment of a paving lien on an abutting street.

The trial judge disallowed the paving lien payoff (admitted by David to have been made by his mother) because the value of the paving was included in the realtor’s appraisal of the lot which was decreed to be a collatable item. Counsel argue that such inclusion is surmise. We think not. When the appraisal was made the lot had the paving. The usual appraisal of a lot such as that takes into account the value of the paving. It is an integral part of the lot’s value and is natural to the appraisal. If the situation were otherwise, it could have been easily shown by counsel who argues to that effect. We do not think it was David’s burden to negate the exclusion of the paving value from the realtor’s appraisal.

The trial judge disallowed the payment of taxes and insurance on the basis that his mother was the benefactor of the rents and that David was not living on the premises. Apparently, he believed David’s testimony that the mother handled the rental receipts and that either she kept the residue or there was a 50-50 split between David and his mother. Counsel for Mrs. Whaley attempts to show that the rent was not sufficient to cover the mortgage note installments, insurance and taxes. We have carefully considered his argument but cannot agree with it. Even at $135 per month rent there were sufficient funds available. For most of the time involved, the rent was $150 per month.

Counsel further claims that the only evidence of rent during the period involved was the written lease for a small portion of the time and that to prove renting of the premises throughout the period other written leases or other evidence other than David’s testimony was necessary. Apparently, the trial judge believed David’s testimony regarding renting of the premises for most of the time involved. We cannot say there is any manifest error in that ruling.

Counsel for Mrs. Whaley argues that there is no proof that Mrs. Pierson ever received the rent monies. We think otherwise. David explained that his house was originally rented to a Mr. Kinney who was still available in Alexandria at the time of trial. He (David) had lost track of the other renters (mostly servicemen) and could not produce them at trial. Mr. Kinney produced rent-payment checks for the period of his occupancy of David’s home. All these checks were payable to David but bore both his endorsement and that of his mother. In many cases, David’s endorsement was in favor of his mother. In other instances when he endorsed in blank, his mother’s endorsement was for deposit to her account. In all instances his mother’s endorsement was on the checks. It is evident that Mrs. Pierson had control of the rent funds and that the checks in payment of the mortgage note installments cannot be considered an advantage to David.

With regard to the furnishing of the home, the trial judge allowed the cost of drapes paid by decedent in the amount of $772.23. He rejected the claim for value of certain items of furniture because of absence of a showing of their value. The cost of the drapes was clearly proven and no serious dispute is made as to this. As to the furniture, David admitted his mother bore the cost of furnishing the home and testified that it was done at minimum cost. There are in evidence 14 checks written by Mrs. Pierson at the time in question which were in all probability for prices of furniture or for redoing or repairing pieces of furniture. Several of these correspond with invoices clearly applicable to furniture for David Pierson’s home. Some of these items involve repairs or redoing of furniture the end value of which must have been in excess of the amount paid for such services. By Civil Code Article 1283, the extent of collation of movable property is the value at the time of the donation. Considering these last two mentioned factors, we think that collation of at least $706.18 for furniture representing the total of those 14 checks would be due and will allow that additional amount or a total for furnishing the home of $1,478.41.

The trial court decreed collation of the value of the lot fixed by the realtor at the time of the succession opening in the amount of $13,956. There is no question but that the donation was made and that said evaluation is in line. However, the collatable amount must be restricted to the $10,000 claimed in the petition.

Additionally, the trial court decreed collation for the mortgage payoff in the amount of $8,059.09. No serious dispute exists as to this ruling except that concerning the remunerative donation later discussed.

At the time decedent paid off David’s mortgage, she opened a savings account in his name with an initial deposit of $700. This was decreed collatable by the district court. No reason to the contrary is given and we will uphold the trial judge’s ruling.

Counsel for David argues that the gift of the mortgage payoff and the $700 savings account are remunerative donations not subject to collation or reduction. Simultaneously with those transactions, decedent left David a note stating that “ . both the house and the account are from me in appreciation for all your loving care of me during my last years . . . It seems clear that decedent intended to make a remunerative donation to David.

The parent-child presumption of gratuity regarding services rendered applies only when a claim is asserted against the estate in contract or quasi contract but it is not applicable when the services are asserted as forming the basis of a remunerative donation. See Succession of Formby, 243 La. 120, 142 So.2d 157 (1962). However, we do not think these gifts can be exempt from collation as remunerative donations. This is because the value of the services are not appreciable in money and are negligible in worth in relation to the value of the gifts. Pertinent to this discussion are Civil Code Article 1525 and 1526 which provide:

“Art. 1525. The remunerative donation is not a real donation, if the value of the services to be recompensed thereby being appreciated in money, should be little inferior to that of the gift.
Art. 1526. In consequence, 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.”

It is well settled that a donation is not remunerative unless the services rendered are appreciable in money. See Succession of Formby, supra; Succession of Henry, 158 La. 516, 104 So. 310 (1925); Placid Oil Company v. Frazier, 126 So.2d 800 (La.App. 2nd Cir. 1961); Continental Oil Co. v. Tate, 211 La. 852, 30 So.2d 858 (1947); Succession of Rabasse, 49 La.Ann. 1405, 22 So. 767 (1897); Succession of Ames, 33 La.Ann. 1317 (1881); Williams v. Hardy, 15 La.Ann. 286 (1860); Succession of Waechter, 131 La. 505, 59 So. 918 (1912).

Decedent was financially independent and quite active until about two years prior to her death. David held a full-time job during the years in question. He and his mother were very companionable and attended common social functions. Besides this, the services performed constituted nothing more than ordinary errands or chores that naturally arise from the parent-child relationship. The testimony regarding the supposed services is generally unimpressive. It is impossible to conclude that they amount to any significant monetary value. Hence, we do not think they can form the basis for a remunerative donation of the amount involved herein.

Further claim is made by counsel for David that the gifts of the mortgage payoff and savings account deposit should not be collated because they were declared exempt from such by the note. It is true that there is other language in the note which is somewhat suggestive of an intent to exempt these gifts from collation. However, any such declaration that a gift is made as an advantage or extra portion when not in the instrument of donation, must be in authentic form. Civil Code Article 1232 provides that such declaration may be made after the donation “ . . - by an act passed before a notary and two witnesses.” Therefore, even if the note contained language unequivocally exempting those gifts from collation, the dispensation is ineffective because not in the form required by law.

Further claims are made against David for collation of monies received from his mother. The trial judge disallowed them for the reason that the mere issuance of checks to David did not constitute proof of donations and that if they represented loans it was the duty of the succession representative to collect those debts. We have previously pointed out that unpaid debts of an heir are subject to collation.

When David returned to Alexandria in 1956, he lived in a small garage apartment on his mother’s home premises until approximately a year and a half prior to her death at which time he moved into the home. They were apparently very close, shared grocery expenses and obviously had many minor financial transactions between them.

In order to prove these collatable items, there were filed in evidence two batches of cancelled checks issued by Mrs. Pierson during the period from the late thirties to her death in ’71 except for the period from 1949 to 1960. None of her cancelled checks issued between 1949 to 1960 were available.

Of the two groups of checks for which collation claims are made, one is made up of 113 checks totalling $804.73, all issued by Mrs. Pierson in favor of David and only one of these has any indication of its purpose. The other group is made up of 76 checks totalling $2,203.61, all issued by Mrs. Pier-son to other parties with notations on the checks to the effect that the check was to be applied to David’s account or that it was otherwise for his benefit.

David admitted that his mother helped him with his delinquent accounts on many occasions and that he had received gifts from her from time to time. He contends that the gifts were offset by services he rendered and that he repaid loans. In his deposition, he stated that he had cancelled checks for several years back but produced none of these at trial and claimed that his mother had urged him to destroy all his old records. We realize that it would have been unusual for David to have retained his cancelled checks for as long as thirty years back and feel a certain inadequacy in dealing with this issue. However, we cannot ignore the consistent pattern of transfers of money from Mrs. Pierson to her son. Those that were gifts must be collated. Those that were loans must be collated unless repaid. We have previously held that unpaid loans are collatable items.

However, because of the closeness of David and his mother and the fact that they shared the grocery bill there must have been many small monetary transactions between them represented by some of the checks. For instance, we note one of the checks to David is for $6.71 and was secondly endorsed by a seafood market. We cannot imagine how this could have constituted a loan to David or a payment by him of his sole account at such an establishment. We think these type checks represent transactions between him and his mother of a type other than loans or gifts. Additionally, in the group of checks payable to third parties, are notations indicating that they were not loans or collatable gifts. One of these is for Community Concert tickets for both Mrs. Pierson and David. As to David’s ticket, this would be a gift for his own pleasure and use as provided by Civil Code Article 1245. Another check has a notation not that it is for David’s account at the particular store but it is for “David’s suit”. This was in January. We do not think gifts on such rare occasions are collatable. They are also for the use and pleasure of the donee as per Civil Code Article 1245. It is impossible to discuss each of these individual checks which we have decided should or should not be collated. Of the group of checks representing payments directly to David, we have considered that a total of $734 must be collated. Of the group of checks representing payments to third parties, we have determined that a total of $1,010 must be collated. With the $700 previously decreed to be subject to collation, the total for cash items (gifts or unpaid loans) would amount to $2,534. This collation must be reduced to $2,000, the amount claimed in the petition.

Claims for collation by Hunter Pierson for payment by his mother of income taxes and the expenses of his daughter’s reception were disallowed by the trial judge. There is no evidence in the record supporting these and we uphold the ruling of the district court.

For about 20 years, Hunter Pierson occupied rent-free a home owned by his mother at 3014 Marye Street. In addition to a claim for collation of the rental value of that home which we will discuss later, plaintiffs claim Hunter’s estate should be made to collate sums paid by decedent for repairing and insuring this property. Insurance and repair constitute upkeep on maintenance and were for the benefit and advantage of the property and its owner who was decedent. No advantage went to Hunter for this except indirectly as to the rental value with which we will deal separately. No authority is shown to characterize these items as collatable and they must be disallowed. Further, the evidence is clear that Hunter put much more into the home by way of renovations and additions than did his mother.

A claim was made for collation by Hunter of the value of furnishing the Marye Street residence. No proof was made as to these items except that Hunter admitted his mother gave him a used bed. We do not believe that this item should be collated.

In Succession of Gomez, 223 La. 859, 67 So.2d 156 (1953) appears a thorough discussion of the legal exemptions from collation provided by Civil Code Articles 1244 and 1245. In dealing with the meaning of the exemption in the latter article, the court stated:

“When the redactors used the expression ‘by their own hands, to one of their children for his pleasure or other use’, they were contemplating those things usual for parents of this country to give to a child without thought or regard to his having to account for them to his coheirs. The word ‘pleasure’ has special significance in this respect because it best describes the motive that usually prompts the giving of such things. The language the redactors chose to describe this kind of giving was broad and elastic enough to keep apace of changes in our social development.”

The value of the bed was estimated at $200. Particularly significant is that it was given when Hunter furnished his own abode. Considering the nature of the item, its value and the special occasion upon which it was given, we conclude that it is exempt from collation as one of “ . those things usual for parents of this country to give to a child without thought or regard to his having to account for them to his co-heirs.”

The trial judge held proof was insufficient to show a donation of any Ammen Company stock to Hunter by his mother. The inventory in Dr. Pierson’s estate showed 78 shares of this stock. A later correction showed that 5 had been previously transferred to Clarence, Jr. Of the 73 shares actually in the estate 60 were purchased by Mrs. Pierson and 13 remained in the estate when it was closed out. When the company was liquidated in 1947, the list of stockholders showed Mrs. Pierson as having 66V2 shares. Clarence had 5 shares and the Estate of Dr. Clarence Pierson had 6Vh shares. This totals the inventoried number of 78 shares. This list also showed Hunter having one share. A 5-share certificate endorsed by Mrs. Pierson to Hunter was filed in evidence. Apparently it was never transferred on the books of the company. In view of the above listing of owners at dissolution of the corporation, we do not think the mere endorsement on the certificate constitutes proof of a donation. In his deposition, Hunter said, he thought one share had been placed in his name so that he could act as a director. He doubted that he received any liquidating dividends from this share. For two or three years after the company was dissolved, Hunter’s income tax returns showed long-term capital gains in the forms of liquidating dividends from Ammen Company stock. In all these cases, the date of acquisition of the stock was given as 1934, the date of his father’s death. Evidently the dividends represented his interest in the 6V2 shares listed on the company’s stockholder list as belonging to Dr. Pierson’s estate. We agree with the trial judge that the proof is insufficient to show that Mrs. Pierson donated any stock to Hunter from which he received any benefit.

Another claim for collation by Hunter’s estate is the value of a 1958 Ford automobile. Hunter admitted this donation. Trial judge disallowed it because of lack of evidence of the value. There is nothing in the record to show the value of the automobile at the time in question. A suggestion is made by counsel that we assign a figure of $2,000 for the value. We think the holding below was correct. The party asserting collation must show the value of the item to be collated. This is not a situation where an exact amount cannot be shown and the court must determine some fair minimum in the interest of justice. The exact value of the automobile could have been easily proved. We must disallow this claim. '

Plaintiffs claim collations due by Hunter for money transferred to him from his mother. The trial judge held that there was not sufficient proof that these were actual gifts and if loans they were not collatable.

Mrs. Pierson died in February, 1971, and Hunter about a year later. In June, 1971, Hunter’s deposition was taken, and it was introduced at trial. He admitted some loans from his mother and denied gifts of any substantial amounts. He thought he had retained his checks for some years back and that they would be available. He explained that over the years he had handled different transactions for his mother and that cash or checks had passed between them on many occasions for these transactions.

Hunter married shortly after his return to Alexandria to start practicing law in 1947. His family grew rapidly. The evidence is clear that he was continuously in financial straits until his mother’s death. During all those years, his mother, if not actually affluent, was never pressed for money. There is testimony that decedent was strict in business and any loan by her would have been repaid and that she often called Hunter down with regard to his indebtedness to her. Other evidence indicates that Hunter had much leeway with his mother financially and that he generally received favored treatment from her.

To prove the collatable gifts or loans, plaintiffs filed in evidence 38 cancelled checks from decedent to Hunter totalling $5,035. Except for one which was designated as a loan, none of these bore any notations as to their purpose. A few of these were in the late forties but most span the period from 1961 to 1971. In his discovery deposition, Hunter was questioned about most of these checks and was unable to recollect them except one check for $350 issued about two weeks prior to his mother’s death which he recollected as being given for some business affair of his mother but could not explain it specifically. We do not necessarily take the view that Hunter ought to have had any specific recollection of these checks and we mention this questioning of Hunter and his response mainly to show the state of the known issues at that time in relation to what evidence was eventually produced. Counsel for Hunter’s estate filed in evidence 21 cancelled checks from him to his mother issued from 1965 to 1969. One of these is not pertinent to this issue. The remaining 20 total $1,206. None of these bear any notation as to their purpose.

Again, as in the case of David, we feel a certain inadequacy in dealing with this issue. However, upon considering the various general factors previously noted pertaining to Hunter’s financial condition as compared to his mother’s, their relationship and his state in life during the years involved, we feel that less error would be committed in reaching some collatable figure than in disallowing collation altogether. Of the 38 checks to Hunter, we will disallow 16 which are for small, odd amounts and probably represented business transactions between the two of them other than loans or gifts. The remaining 22 checks are for rounded figures and substantial sums. Only three of them are below $100. Most are for $100 to $300 and a few are in excess of that. Except for one in 1948 in the amount of $75 which bears a loan notation on it, all these are between the years 1961 to 1971. They total $4,426. Against this figure, we think it fair to offset the total of the checks by Hunter to his mother in the amount of $1,206. This leaves a net collata-ble amount of $3,220.

Claims for collation against both Hunter and David were made for the rental value of the properties (the garage apartment and the Marye Street residence) occupied by them for a number of years. Additionally, a collation claim was made against David for board for the same period. We think the evidence preponderates that David and his mother shared board expenses and that claim will be disallowed. The trial judge rejected the claims for rental values as a matter of law. His reasoning was that the value of occupancy was equivalent to the revenue that would have been derived from the properties and that revenue, as distinguished from capital, is not collatable as it would have been used by the decedent anyway and hence there was no depletion of his estate. He further stated that if the properties had been donated, the donees would not have had to collate the revenue (rental) of these items.

Louisiana Civil Code Articles 1243 through 1248 deal with what things are subject to collation. Article 1243 specifies those types of benefits subject to collation. Articles 1244 through 1247 deal with various types of benefits to an heir which are not subject to collation. Article 1248 is a sort of catchall provision mandating collation generally. Articles 851 through 856 of the Code Napoleon deal with what matters are collatable and contain substantially the same language as Articles 1243 through 1247 except that there is no counterpart to Civil Code Article 1248 in the Code Napoleon and there is contained in the Code Napoleon an article (856) which provides that the revenue of the thing subject to collation is not due until the opening of the succession. Prom this codal scheme, the Louisiana Jurisprudence has approached the question of what is collatable by starting with the general rule that collation is due for any benefit or advantage and that any exemption or dispensation from it is the exception.

This approach was used in the scholarly opinion in Succession of Gomez, supra. That case dealt with manual gifts of money. Although it dealt with the manner in which the benefit or advantage was conferred and not with the nature of the benefit conferred, we think the Gomez rationale is pertinent here.

The court stated:

“Finally, then, the law contemplates a perfect equality among heirs and presumes that the ascendant intends equality among his heirs. Our rules of collation have come into existence to maintain and effectuate this equality, and they permit collation to be dispensed with only when the intention of the ascendant to dispense has been manifested expressly and in the manner provided by law. Benoit v. Benoit’s Heirs, 8 La. 228; Grandchamps v. Delpeuch, 7 Rob. 429; Berthelot v. Fitch, 44 La.Ann. 503, 10 So. 867; King v. King, 107 La. 437, 31 So. 894; Champagne v. Champagne, 125 La. 408, 51 So. 440; Jung v. Stewart, 190 La. 91, 181 So. 867. The law exempts, however, in Articles 1244 and 1245 of the Code of 1870 certain things from collation. By virtue of this legal exemption an express intention on the part of the donor to dispense with collation of these things is not required. Because this legal exemption may operate to destroy the equality among the heirs, nothing should be exempt from collation unless it falls squarely within the provisions of these articles. herein) (Emphasis
* * * *
We have concluded, therefore, that it was never the intention and purpose of the redactors of the Code of 1825 to make a drastic change from the provisions of the 1808 Code relating to exemptions or, for that matter, a radical departure from our fundamental concept of collation. Any other conclusion would be inconsistent with the emphasis on equality in the general provisions relating to the nature of collation and the strict rules for maintaining that equality. Legal exemptions from collation have always been based on the soundest grounds — the things exempt were by their nature not really advancements because they were obligations of the parent, or they were things given under such circumstances as to overcome the presumption that they were advancements.”

Determinative here are the court’s two observations: (1) That only exemptions squarely within the terms of the pertinent articles are to be recognized and (2) that those exemptions either pertain to obligations of the decedent to the child or result from benefits conferred under circumstances naturally indicative of an intent to confer an advantage or extra portion.

We realize that, as pointed out by the learned trial judge, respectable authority among the French commentators holds that a gift of revenues is not collatable. This view of the learned French scholars is based on Code Napoleon Article 856 which provides that revenues from a collatable item are only due from the opening of the succession. But our code does not contain any counterpart to Code Napoleon Article 856 in the section dealing with collation. In Cross On Successions, at page 523, is found the following observation:

“C. N. 856 provides that ‘the fruits and interest of the things subject to collation are due only from the day of the opening of the succession.’ This rule is the consequence of the principle, that the property donated as an advancement d’hoirie is supposed to be immediately reunited to the succession at the death of the deceased. The object of its insertion in that Code seems however, to be, to protect the donee from a claim for the revenues accruing before the opening of the succession. ‘We have already seen, under Article 852,’ [Louisiana Civil Code Article 1244] says Marcade (III, 343) ‘that the gift of simple revenues not encroaching on the capital are not subject to collation. The law considers that the deceased would have spent it some other way, and in living with less economy the periodical revenues with which he has gratified his successible would have been used, and that consequently the donation has not diminished the quantity of property he has left. This principle has been recognized in our article. When the deceased has given a farm, a house, or other property, the heir should collate this property, but not the revenues which he has derived from it; the property is, in fact, a capital, the absence of which would diminish the patrimony; but its fruits on the contrary are only revenues that the deceased would probably have spent otherwise.’ This article has not been reproduced in our Code, and it is held in LeBlanc vs. Bertant (16 A. 298) that, where it is presumed from circumstances that the mother intended to make a remission of interest to her sons on a loan of money to them, the interest remitted should be considered an advance on their portion of the succession and should be collated.”

However, the contention of Cross was not accepted as law. In Clark v. Hedden, 109 La. 147, 33 So. 116 (1902) the Supreme Court held that collation is not due for revenues of property, the full ownership of which had been donated. The court relied on Civil Code Article 1515 which by its terms applies only to revenues from donated property subject to reduction. No mention was made of the limited applicability of that article nor of the fact that Code Napoleon Article 856 which exempted from collation revenues of collatable items was in the 1808 code but omitted from the 1825 and 1870 codes. While the rule in Clark may be dispositive on the precise question of whether revenues from collatable items are exempt, it does not follow that the rule is by analogy obligatory on this court in dealing with the question of whether collation is due for the value of donated use, occupancy or habitation which themselves constitute the benefit or advantage.

Here David and Hunter did not own the apartment or the house. They did not even have the usufruct of these. Theirs were only the rights of habitation or use. This produced no revenues. In a sense, what they had was the equivalent of revenue. But to make them collate the value of their occupancy and not compel an owner to collate the value of the revenues produced by the thing owned is not contradictory. In both cases the donee or beneficiary returns to the ancestor’s estate the value equivalent of exactly what he got—in one case the basic ownership and in the other the occupancy.

Other considerations might warrant a difference in treatment between an heir given basic ownership and one who gets only a portion of the ownership. The hardship and problems of making the latter account for the revenues could justify the difference.

We cannot agree with the view that revenues should not be collated because the gift of such does not deplete the ancestor’s estate. Depletion of the estate would be germane to a reduction situation. There, the ultimate value of the estate is the question. But, as to collation, benefit or advantage to the heir is the test regardless of whether the estate is depleted. Although there is no depletion of the estate, any benefit or advantage to an heir affects presumed equality.

Even if depletion of the ancestor’s estate would be pertinent, to hold that a gift of revenue never depletes the donor’s ultimate estate is unrealistic. Modern investment practices do not justify such a view. The question of depletion, vel non, should be resolved on the facts of each particular case.

If decedent had barely subsisted from month to month and left no assets of any consequence, it could be argued that she would have consumed the rental revenues of the properties occupied by her children and the free occupancy would have had no effect on her estate’s ultimate value. The record herein clearly shows the contrary. Mrs. Pierson lived to the full extent of her wishes during the years of free occupancy. Her estate was considerable. If she had rented out the properties instead of allowing their free use by her children, the estate would have been increased pro tanto.

Accordingly, we hold that a gift of use or habitation is not exempt from collation solely because of its nature as the equivalent of revenue or because revenues from collatable items are deemed exempt from collation. By this ruling, we do not intend to require collation of every use or occupancy permitted by a parent to a child. Many of these will be so trifling, temporary, intermittent, on such occasions and under such circumstances that they would clearly fall within the language of the Gomez case as . . things usual for parents of this country to give to a child without thought or regard to his having to account for them to his co-heirs.”

We think that the permitted occupancy of the garage apartment by David should be exempt from collation. David was never married; he and his mother were very close. He assisted her in many ways. Originally, he occupied a room in the family residence. After a maid who occupied the garage apartment left, he moved into it. The apartment was very meagre; its rental value was estimated at $25 per month. In winter, David was forced to move into the family residence with his mother. He actually lived in the family home with her for several months prior to her death. The arrangement was to a large extent for Mrs. Pierson’s convenience and requirements. Considering all these circumstances, we conclude that the permitted occupancy was “ . . . was without thought or regard to his [David’s] having to account for them [it] to his co-heirs.”

Hunter moved into the residence around 1950 and paid rental for two years. He then added onto the house and thereafter paid only the taxes and insurance. A realtor fixed the rental value from 1952 to 1960 at $100 per month and thereafter at $120 per month. This would amount to $24,000. We cannot say that the whole rental value should be collated because it was not completely free. Hunter paid about $2,000 for the addition which inured to the value of the property and consequently the estate. Additionally, he paid insurance and taxes for the 18 years involved. The payments for the addition, insurance and taxes were part of the overall arrangement between him and his mother and should be calculated into the amount due. From the record available, we calculate the taxes and insurance paid for the 18 years at $2,880. We will allow this total of $4,880 for the addition, insurance and taxes as a credit against the gross rental of $24,-000 leaving a net collatable figure of $19,-120.

Argument is made that decedent made donations of roughly equal value to all of her children in the form of the three lots and the automobile to Hunter, that no equality existed then because those donations had approximately equal value at the time made and that, because collation is to protect against inequality, none should be ordered as to these items. It is pointed out that more inequality results by collating these items as per their value at the time of opening the succession than by disregarding the donations as not creating any inequality at the time of their confection. This argument does have some appeal to equity. However, though ordaining equality among the heirs as the ultimate aim of collation, the law specifies certain rules or guidelines which we must follow. Civil Code Articles 1269 and 1270 clearly declare that, subject to certain exceptions in other articles, immovable property must be evaluated as of the time of opening the succession. We are unable to ignore or deviate from this precise formula. The argument must be addressed to the legislature instead of the courts.

Request is made that we proceed to determine the reductions due in this succession. It does not appear that the record is so complete as to allow this. Most of the ordinary debts of the estate have been paid but there may be others not shown in the record such as law charges or possibly estate taxes. Accordingly, we must relegate the determination of reductions to further proceedings in the district court.

We now recapitulate the collations due as follows:

Accordingly, for reasons assigned, the judgment of the district court is amended so as to provide that the Estate of Hunter Pierson collate the sum of $22,340, David Pierson collate the sum of $21,537.50, Mrs. Louise Pierson Marshall collate the sum of $16,015.48, Mrs. Diane Whaley collate the sum of $21,184.80, and as amended, it is affirmed. It is further ordered that this case be remanded to the district court for further proceedings in conformity with this opinion and that all costs of this appeal be borne by the parties equally.

AMENDED AND REMANDED.

HOOD, J., concurs in the result.

      . See Concordance for Code Napoleon in 17 L.S.A. Civil Code Comp.Ed. p. 890.


text:
    In the Matter of ADOPTION OF TWO MINOR CHILDREN. Jimmy Cleon GRIFFIN v. Ronald Gene PALMER et ux.
    No. 48851.
    Supreme Court of Mississippi.
    Sept. 28, 1976.
    Rehearing Denied Nov. 30, 1976.
    Self, Bailey & Jordan, Meridian, for appellant.
    Irvin L. Martin, Jr., Meridian, for appel-lee.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    F. L. CAPPAERT v. Bernie B. BIERMAN and Geneva Ingram.
    No. 48856.
    Supreme Court of Mississippi.
    Oct. 5, 1976.
    Rehearing Denied Nov. 30, 1976.

      Case, Montgomery & Smith-Vaniz, Canton, for appellant.
    Henry, Barbour & DeCell, William H. Barbour, Jr., Yazoo City, Teller, Biedenharn & Rogers, Vicksburg, for appellees.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice, for the Court:

Suit was filed in the Circuit Court of Warren County by F. L. Cappaert against Bernie B. Bierman on a note for $22,084. Bierman defended and counterclaimed, on the ground that the note sued on was a part of a usurious transaction. Trial without jury resulted in a judgment for Bierman on the note and awarding Bierman a judgment for $140,723.32 as usurious interest. Cap-paert appealed.

In accordance with the established rule the facts are stated in the light most favorable to Bierman in whose favor the trial judge found.

Cappaert and Bierman negotiated a loan to be secured by real estate. In accordance with requirements of Cappaert, Bierman executed a note for $437,500, dated October 11, 1968, due on or before October 11, 1973, with seven percent interest payable semiannually. Cappaert withheld and never parted with $87,500 as a “compensating balance.” Cappaert issued his check to Bier-man and the closing attorney for $350,000, but required as a condition prior to disbursing the loan proceeds, that the closing attorney issue a check to Bierman, who would cash the check and deliver $17,500 of the $350,000 to Cappaert in cash. This was done and the balance of the loan proceeds were disbursed to Bierman. While Bierman only had the use of $332,500, he was responsible to repay Cappaert $350,000, plus the stipulated interest computed at seven percent on $437,500.

Semi-annual interest payments aggregating $123,233.32 were made. The loan was paid off in part on June 29, 1973. The amount demanded by Cappaert and paid by Bierman was $350,000 cash and a renewal note of $22,084, bearing interest from date until paid. This note was signed by Bier-man and Geneva Ingram, but she is not a party to this appeal.

I.

What law and interest rate governs the transaction?

Mississippi Code Annotated section 75-17-1 (1972) established the maximum lawful interest at a rate of eight percent per annum. Section 75-17-1 was amended by Chapter 564, Laws of 1974 [now appearing as § 75-17-1, et seq.] and became effective July 1, 1974. Chapter 564 increased the legal rate of interest, for loans of this nature, to a maximum of ten percent per annum. The judgment appealed from was dated December 19, 1974. The trial judge was of the opinion that it was immaterial which law governed the transaction, because in his opinion the transaction was usurious under either law.

Section 7, Chapter 564, Laws of 1974 (now appearing as Mississippi Code Annotated section 75-17-17 [Supp.1975]), states:

Loans made and credit extended prior to the effective date of this act shall continue to be governed by the provisions of laws governing such loans and extensions of credit which were in force at the time such loans or extensions of credit were made, including laws repealed hereby except that finance charges contracted for or received prior to the effective date of this act shall not be unlawful if the finance charge contracted for or received conforms with the provisions of this act or other law then in effect. Any loan or note renewed, refinanced, deferred or otherwise extended or altered on or after the effective date of this act shall conform with the provisions of this act. (Emphasis supplied).

We hold that the 1974 statute as written applies retroactively, and that the ten percent yield provided in that law should be applied to the present case in determining whether usury was stipulated for or received. See Deposit Guaranty Bank & Trust Co. v. Williams, 193 Miss. 432, 9 So.2d 638 (1942).

II.

Did Cappaert receive usurious interest?

Section 1 of Chapter 564, Laws of 1974 [now appearing as section 75-17-1(9) of Mississippi Code Annotated (Supp.1975)], provides that if a greater finance charge than that stipulated by this section or any other applicable law shall be stipulated for or received in any case, all interest and finance charges shall be forfeited, and may be recovered back whether the contract be executed or executory. Finance charges are also described in section 1 of Chapter 564, as follows:

The term “finance charge” as used in this act means the amount or rate paid or payable, directly or indirectly, by a debtor for receiving a loan or incident to or as a condition of the extension of credit, including but not limited to interest, brokerage fees, finance charges, loan fees, discount, points, service charges, transaction charges, activity charges, carrying charges, finders fees, or any other cost or expense to the debtor .

For purposes of our usury statutes the discount or finance charge of $17,500 must be considered as interest. Our usury statutes are consistent with the general rules of law in the area.

When a creditor exacts from a debtor, as a condition of a loan, a sum in addition to the lawful interest, whether designated as a bonus, commission, carrying charge, or by some other name, the transaction is tainted with usury unless the sum so exacted, when added to the stipulated interest, does not exceed interest at the maximum lawful rate on the principal sum of the loan. 45 Am.Jur.2d, Interest and Usury § 196 at 154-155 (1969).

The maximum lawful interest was ten percent per annum. Bierman received and used $332,500 for the period October 11, 1968, to June 29,1973. Ten percent interest for this period would be $156,685.12. Thus the maximum that Cappaert could have lawfully received on June 29, 1973, was $332,500, plus the sum of $156,685.12, or a total sum of $489,185.12. The amount received by Cappaert consists of:

Bierman offered testimony of a certified public accountant who testified based on the foregoing figures that Cappaert received interest at the rate of 10.35% per annum.

III.

Was usurious interest stipulated for?

Applying the previously mentioned rules of law, the amount of interest “stipulated for” by Cappaert consists of:

We conclude that Cappaert not only “received” but “Stipulated for” usurious interest.

IV.

After it is determined that Cappaert stipulated for and received usurious interest, it follows that Cappaert is entitled to return of principal only and all received above that amount, Bierman is entitled to recover.

The amount of the judgment below was $140,723.32, which figure is the result of the following computation:

We are of the opinion that there is no merit to Cappaert’s contention that the counterclaim of Bierman constituted a separate and distinct transaction. The $22,084 renewal note was clearly a part of the settlement on June 29, 1973. Nor is there any merit in the contention that the closing attorney was incompetent to testify. Both parties used the same attorney and all that he did was known to both parties.

After a careful study of all the propositions raised by Cappaert, we are of the opinion that the trial judge correctly decided the case. The judgment is affirmed.

AFFIRMED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    GREGORY, INC. v. James WADE.
    No. 48932.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Rehearing Denied Nov. 30, 1976.
    Brooks & Guyton, William D. Brooks, Kosciusko, for appellant.
    Johnson & Walker, John L. Walker, Jr., Jackson, for appellee.
   Appeal from Circuit Court, Holmes County; B. B. Wilkes, Judge.

Before INZER, P. J., SMITH and BROOM, JJ., and DUNNAM, Commissioner.

AFFIRMED ON DIRECT AND CROSS-APPEALS.


text:
    Jerry NEAL et ux. v. James CARTHAM et ux.
    No. 48935.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Rehearing Denied Nov. 30, 1976.
    J. A. White, Durant, for appellant.
    J. R. Gilfoy, Lexington, for appellee.
   Appeal from Circuit Court, Holmes County; B. B. Wilkes, Judge.

Before INZER, P. J., and SMITH and BROOM, JJ.

AFFIRMED.


text:
    Jack DONALD v. STATE of Mississippi.
    No. 49346.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Rehearing Denied Nov. 30, 1976.
    Binder, Lucas & Lohrmann, Alvin Binder, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Scott County; Roy Noble Lee, Judge.

Before INZER, P. J., and SMITH and BROOM, JJ.

AFFIRMED.

GILLESPIE, C. J., and PATTERSON, ROBERTSON, SUGG and WALKER, JJ., concur.

LEE, J., took no part.


author: ROBERTSON, Justice, for the Court:

text:
    Beth LANCASTER, a minor, by next friend, v. CITY OF CLARKSDALE.
    No. 48910.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Rehearing Denied Nov. 30, 1976.

      Holcomb, Dunbar, Connell, Merkel & Tol-lison, Charles M. Merkel, Clarksdale, for appellant.
    Luckett & Barnwell, W. 0. Luckett, Jr., Clarksdale, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   ROBERTSON, Justice, for the Court:

Beth Lancaster, a 12-year-old minor, by next friend, sued the city of Clarksdale, Mississippi, in the Circuit Court of Coahoma County for damages sustained when she walked into a traffic control box protruding about 30 to 36 inches over the public sidewalk at a height of about 58V2 inches. The jury returned a verdict of $12,500.

The city of Clarksdale moved for a judgment notwithstanding the verdict. That motion was sustained and the trial court rendered judgment for the defendant, the city of Clarksdale.

Beth Lancaster appeals. She contends that the trial court erred, its judgment should be set aside, and the verdict of the jury for $12,500 reinstated.

Beth testified that on April 1,1974, about 2:30 p. m., her mother picked her up after school and brought her downtown to the beauty shop to have her hair cut and set. Her mother let her out on the north side of East Second Street in downtown Clarks-dale. She crossed to the south side and started walking west on the sidewalk. She stated that she was looking down at the sidewalk to see that she would not trip over anything and that she hit her head on the traffic control box without ever seeing it. She was taken to the hospital.

The doctor testified that it was a rather deep laceration extending vertically from the middle of her forehead at eyebrow level about 3V2 inches. It took between 15 and 20 stitches to close the wound. Beth and her mother testified that she had tried to cover up the 3V2 inch scar, but because of its location it was impossible to do. She will have plastic surgery in the near future to try to eliminate the scar.

A city engineer testified that the traffic control box was located about 5 feet above the sidewalk and protruded about 30 inches over the sidewalk measuring from the curb which was the north boundary of the sidewalk. The sidewalk was about 5 or 6 feet wide.

This particular box was the master control box for the whole downtown system. Its location was chosen by a consulting traffic light firm and the firm selling these particular traffic controllers. The main consideration in locating the control box at that height was ease of operation and maintenance. The testimony was that if the control box had been located on the opposite side of the utility pole it might have been damaged by a motor vehicle attempting to use the parking space. Two other witnesses testified that they had walked into this same traffic control box and had injured themselves.

The principal reason for sidewalks is to provide a reasonably safe place for members of the general public to walk. Business establishments frequently have display windows facing the sidewalk so that pedestrians can windowshop. Frequently people walk with their friends on the sidewalks. This they have a right to do. Members of the public using the sidewalks are not under a duty to single-mindedly be on the alert at all times to avoid possible obstructions that have been placed there by the city officials or their agents.

This Court has distinguished between defects in sidewalks caused by nature or adverse weather conditions and defects or obstructions created by the municipality itself. We have been much more prone to hold that it is a jury question where the municipality has created the defect or obstruction. City of Cleveland v. Threadgill, 246 Miss. 23, 148 So.2d 670 (1963); Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827 (1941).

In Wilson v. Kirkwood, 221 So.2d 79 (Miss.1969), this Court held that the trial court should not have directed a verdict for the owner of a penny weighing scale and the owner of a business establishment in front of which the weighing scale was placed, where the weighing scale protruded about 27 inches onto the sidewalk and a pedestrian was injured when she tripped over the platform part of the weighing scale. We held that it was a question for the jury.

The contentions of the litigants in Wilson was stated by the Court in this way:

“Kirkwood and Paughn contend that the weighing scales were open, obvious, and visible for all who have eyes to see and that the sole proximate cause of appellant’s injuries was her negligence in not seeing what she should have seen.
“The appellant answers that the 6-inch-high weighing platform occupies and obstructs about 41%% of the sidewalk provided for the use of the general public and that the appellant’s attention was momentarily diverted from the sidewalk to the eye-level sign on the door of The Recreation Center instructing her to use the other door.” 221 So.2d at 81.

In Wilson, we quoted with approval from Mock v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 562 (1957), wherein the Court set forth the standard to be applied in deciding whether a directed verdict should be given:

“We have also held repeatedly in cases too numerous to mention that upon a motion for a directed verdict all the facts expressly testified to, and all inferences necessarily and logically to be deduced therefrom, are to be taken as true in favor of the party against whom the motion is asked, and that a case should not be withdrawn from the jury unless the conclusion follows as a matter of law that no recovery can be had upon any view which can be properly taken of the facts which the evidence tends to establish, and further that if more than one reasonable inference can be drawn from the facts the question of negligence is for the jury. Id. at 382, 92 So.2d at 563.” 221 So.2d at 81.

In Carlize v. Richards, 216 So.2d 422 (Miss.1968), this Court said:

“The question for our decision is whether the trial court erred in sustaining the defendant’s motion for judgment notwithstanding the verdict. Stated differently, the question is whether the testimony on behalf of plaintiff made a jury question. The test for determining whether such motion should be sustained is the same as that applied where there is a motion for a directed verdict or peremptory instruction.” 216 So.2d at 423.

It was a question for the jury as to whether this traffic control box was reasonably placed, or whether the City was negligent in locating it at the height that it did. The evidence was ample to support the jury’s verdict. We are of the opinion that the trial court erred in sustaining the motion for judgment notwithstanding the verdict.

The judgment is, therefore, reversed, the verdict of the jury for $12,500 reinstated, and judgment rendered here for the appellant.

REVERSED AND RENDERED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, SUGG, WALKER,' BROOM and LEE, JJ., concur.