Armstrong v. Steeber

The judgment of the court was pronounced by Rost, J. The plaintiff claims the marital portion from her husband’s succession, under art. 2359 of the Civil Code. Her claim is resisted on the following grounds: 1st. That she is not in necessitous circumstances, but has ample means of living. 2d. That she abandoned her husband several years before his death, and has been living ever since in open concubinage with other persons. Thore was judgment against her and she has appealed. The marital'portion was first allowed by the 53d and 117th Novels of Justinian, and forms the subject of law 7th, title 13th, of the Gth Partida : “ It was established, says Gregorio Lopez, in honorem prceterili matrimonii, and iu order that the widow might bene et honeste vivere.” Under the facts disclosed by the record, the present case surely does not come within the reason and spirit of the law, nor do we think the letter of it more favorable to the plaintiff’s pretensions. Before she can recover, she must show affirmatively that her husband died rich, and that she was left, by his demise, in necessitous circumstances. The evidence of the first of these facts is not satisfactory, and the second is disproved. She had left her husband several yoars before his death, to abandon herself to the life of profligacy congenial to her. She did not go near him in his last illness, and suffered him to die, uncared for and alone. Her situation was no more affecte'd by his death than that of other abandoned women in this ciLy. He did not, therefore, leave hor its [714] necessitous circumstances within the meaning of the article of the Code on which she relies, and she has no claim against his succession. Judgment affirmed.