Gee v. Thompson

Mebkick, C. J. (Lea, J., dissenting.) This suit is for the marital fourth. By consent of parties at Monroe, the case was reserved to be decided at New Orleans. The judgment in fovor of the plaintiff, decreeing her a separation of bed and board against Benyamin L. Saunders, deceased, establishes by that verity which belongs to judgments, that said Saunders forcibly expelled and drove the plaintiff away from their common dwelling, without any just cause or provocation whatever ; that she remained separated from him by reason of his unlawful acts, notwithstanding her desire to return; that he defamed the plaintiff, and that his conduct was cruel, excessive, and of such a nature and character as to render the living with her said husband absolutely unsupportable. The wife was, therefore, driven by the conduct of Saunders to place herself under the protection of the law, and we cannot believe that she has placed herself in a worse condition by so doing. The law would be a strange one which should hold out rewards to violence and injustice even by its consequences. By Article 2359 0. 0.'it is provided, that when the wife has not brought any dowry, or when what she has brought as dowry is inconsiderable with respect to the condition of the husband, if either the husband or the wife die rich, leaving the survivor in necessitous circumstances, the latter has the right to take out of the succession of the deceased what is called the marital portion, that is, the fourth of the succession in full property, if there be no children, and the same in usufruct only where there are but three or a smaller number of children ; and if there be more than three children, the surviving, whether hus [658] band or wife, shall receive only a child’s share in the usufruct, and he is bound to include in this portion what has been left to him as a legacy by the husband or wife who died first. This Article remains unrepealed, and being unaware of any law making exceptions to it, we think we are prohibited from distinguishing where the law does not distinguish. Two questions, therefore, arise under this Article: 1st. Was the plaintiff the wife of Saunders at the time of his death ? 2d. Did he die rich, leaving her in necessitous circumstances? I. Article 188 of the Civil Code answers the first of these questions in the affirmative. It declares in the last sentence of the Article that “separation from bed and board does not dissolve the bond of matrimony since the separated husband and wife are not at liberty to marry again, but it puts an end to their conjugal cohabitation and the common concerns (intéréts) which existed between them. The parties are left in this condition for two years,' in the yhope that a reconciliation will take place between them. The law lends itself iwith such facility to the furtherance of this idea, that the reconciliation without any form of law annuls the separation from bed and board.” Troplong du Mariage, No. 1465. The law, therefore, while it prevents the wife from marrying again, and forming any other establishment, ought not to deprive her of all rights upon the estate of her husband, if he should die in the interval in which she is obliged to consider herself his wife. The civil and common law writers agree that the decree of separation of bed and board does not dissolve the bonds of matrimony. Zachariae says: “ La séparation de corps ne rompt pas, mais réláche seulement le lien du mariage. En général, elle laisse subsister tons les effets juridiques que le mariage produit et n’entraine que l’extinction de ceux de ces effets qui' sont une conséquence de la vie commune.” Seconde Partie, § 489. See also Troplong du Mariage, 2 vo., Nos. 1268 and 1464; 5 Pothier, 523. At common law it is said : “ A divorce a mensa et thoro dissolveth not the marriage, for the cause of it is subsequent to the marriage, and supposes the marriage to be lawful. And as it doth not dissolve the marriage, so it doth not debar the woman of her dower, or bastardize the issue or make void any estate for the life of the husband and wife.” Oo, Lit. 235; Tomlin Law Diet., verbo Divorce. .O.ur own law looks with favor upon a person occupying the position of the plaintiff in this case, for it expressly declares: “ In case of a separation from bed and board, the party against whom it shall have been pronounced shall lose all the advantages or donations the other party may have conferred by the marriage contract, or since, and the party at whose instance the separation may have been obtained shall preserve all those to which such party would have been entitled, and these dispositions are to take place even in case the advantages and donations were reciprocally made.” O. 0. 152. The marital fourth, it appears by the fifty-third novel of Justinian, originated in cases of divorce. No decree from the magistrate was required under that law. To protect the divorced wife (in those cases in which she had no dower) from want, was the origin of the marital fourth. The fifty-third novel extended the relief to the wife in the case of the death of her husband, and after-wards, by chapter five of the one hundred and seventeenth novel, the same [659] right was given to the necessitous husband in the estate of his deceased wife, if she died rich. If we, therefore, consider the origin of the marital fourth, it was designed at first to apply to such a case as we have before us. But it is said that Article 918 0. 0. proves that it was not the intention of the lawgiver that the wife, separated in bed and board, should inherit, to the exclusion of any natural child or children duly acknowledged, much less any legitimate children of the deceased. An answer to the foregoing argument is this: The marital fourth is provided for under the head of marriage contract, and depends upon contingencies, and is exceptional in its character. The surviving husband or wife is to have the marital fourth only when the pre-deceased spouse died rich, leaving the survivor in necessitous circumstances. If both of these things do not happen, the survivor takes nothing. Moreover, it has been held by this court that, whether the pre-deceased husband or wife died rich- or not, could only be determined after the settlement of his estate in the Probate Court. 17 L. R. 376. Hence the right to the marital fourth not only depends upon the contingencies named, but also, in order to ascertain the existence of the conditions, time is required for the settlement of the estate in the Probate Court. Now, on the contrary, in regard to successions, it interests the public order that the instant a person dies it should be known what persons should succeed to his effects. Hence those provisions of law were established under the head Successions, declaring who shall inherit, and casting the inheritance upon the heir so designated, even unknown to himself. The person upon whom the inheritance is by law conferred, and who is called the heir, is so different from the surviving husband and wife claiming the maritel fourth, that such demand, like a demand for a legacy, must be made upon the heir. The heir, on the contrary, is not obliged to apply to a court of justice in order to be invested with the effects of a succession. He has the right at once to take possession as proprietor. Article 918 of the Civil Code is found under the title Successions, and it provides for the entire effects of the intestate, and designates who shall receive them as heir where the deceased husband left no ascendants, lawful descendants or collateral relations, and did leave a surviving wife not separated from bed and board from him. It declares that such wife shall inherit from him, to the exclusion of any natural child or children duly acknowledged. The law makes her the heir of her husband, whether she be rich or poor. It is thus apparent, that even as they are embraced under different titles in the Code, so were Articles 918 and 2359 intended to apply to different classes of cases. The one to provide an heir to an entire succession, the other to relieve the surviving husband or wife when in want. Now are these two Articles so repugnant to each other that the one repeals the other l If so, which is repealed, the first or the last? Por it is the duty of the court, where it is possible, to give effect to every Article of the Code, and it is incumbent on those who hold an Article void for repugnancy to some other to make the repugnancy appear by the clearest logic, and then also to show that the law, so alleged to be abrogated, is older in date than the repealing statute. [660] But when we look to the object of the Legislature, we see no repugnancy in the two Articles, and if it should please us to sa,y, that the marital fourth is taken by inheritance, we may read the two Articles together in this way. If a married man has left no lawful ascendants or dccendants, nor any collateral relations, but a surviving wife not separated from bed and board, the wife shall inherit from him his whole estate, to the exclusion of any natural children which he may have left, but if she be separated from her husband from bed and board, and if her husband die rich, and leave her in necessitous circumstances, then, instead of inheriting the whole estate, as she would have done if not so separated, she shall have only one-fourth thereof. Any other conclusion seems to be based upon this fallacy. Article 918 of the Civil Code does not give to the surviving wife the whole of the husband’s estate, where she is separated from him a mensa et thoro, therefore it is not possible that any other Article of the Code can be intended to give the wife, under any circumstances, one-fourth or a less portion of his estate. And that this is notan unfair statement of the argument must be manifest from the reflection that if the wife, separated a mensa et thoro, can demand the marital fourth, as against the natural children duly acknowledged, she can, by force of the Article, also demand it against every other relation. We therefore conclude, that Article 918, which provides the heir to the entire succession, does not repeal nor introduce an exception into Article 2359, which provides for the sole case where the one of the spouses dies rich, leaving the other in necessitous circumstances. IT. In regard to the question whether Saunders died rich, leaving the plaintiff in necessitous circumstances, we think a comparison of the estate left by Saunders, with the means of support of the widow, will show that this question must also be answered in the affirmative. It is conceded that Saunders’ estate, after all debts are paid, is over $31,000. He, therefore, died comparatively rich. The wetnesses say the plaintiff is poor. But it shown that she had, in cash, in October, 1850, $825 65, and in November of the same year she lent to Jackson Burnham, $1,130, at eight per cent interest; that he paid her $800 in February, 1852, fifty dollars being in money, and that about the same time she lent Bason, $100. Burnham also swears that S. P. Bee told him that, between 1848 and 1846, he paid plaintiff some $1,600. Now, if this hearsay testimony were to be considered and believed, it would only show that in 1846, seven years before this suit was instituted, the plaintiff had received, either for herself or some one else, $1,600. If S. P. Gee told Burnham the truth, of which vre have no evidence, then it is probable that the $825 65, which Thompson testified to, was a part of it, and that the' $825 65, seen by Thompsan in October, was increased to $1,130 by November, when it was all loaned to Burnham. Treating these loans as successive, as they appear to be, which is in perfect harmony with the testimony of the witnesses w'ho say they consider the plaintiff poor, it makes her probable means about $1,180. If we add into one sum these successive loans of the plaintiff, we make, indeed, $3,600, but it seems to be fictitious rather than real. The plaintiff is now about fifty-five years of age. She cannot be expected to labor with her hands. It is not shown that she is capable of managing any business. The interest on her $1,180 will produce her ninety-four dollars and forty cents a year, not quite eight dollars a month for boarding, clothing and accessaries. We think her estate inconsiderable with respect to the condition [661] of the husband, and that she is in necessitous circumstances in the contemplation of the Code. The common law of England gives the surviving wife, whether rich or poor, dower in her husband’s'lands, and by statute she receives one-third of his personal estate. By the same law the husband inherits the personal effects of his wife 'as next of lcin, and if there be issue of the marriage born alive, he holds all of her lands during his life as tenant by courtesy. Our law, if less generous in this respect, affords something to the necessities of the survivor. We think it should receive a fair if not liberal construction. We see no hardship, therefore, in decreeing to the plaintiff the usufruct of one-ninth of the property belonging to the succession of B. L. Saundvrs, deceased. The plaintiff will be obliged to give security for the property, and in the ordinary course of nature it will return in a few years to the defendants. We think the judgment ought to be affirmed. ■''judgment affirmed. Spojtokd, J., having been of counsel for one of the parties, takes no part in the decision of this cause.