Succession of Marc

The opinion of the court was delivered by Manning, C. J. The sole contest in this case is between the creditors of the deceased, each of whom has a mortgage. Soye, the older creditor, obtained executory process, under which the property specially mortgaged to him was sold, and it did not realize sufficient to pay his claim, after the costs of his process and the taxes were satisfied. Gayarre’s mortgage was on- another property, and was subsequent in date to Soye’s, and he had also the vendor’s privilege upon it, retained in the same act which recited the mortgage. The sale of that piece of property was likewise, insufficient to pay the costs, taxes, and his debt. The executrix has charged the general and special privileges, viz.: the [413] funeral charges, and those of the last illness, and of law, and the widow’s portion of one thousand dollars, to the fund derived from the sale of the two mortgaged properties indifferently, and they consume the whole of both. Opponents deny that the widow is entitled to the gratuity of one thousand dollars under the act of 1852, because she was the concubine of the decedent until within twelve days of his decease, when their marriage took place, while he was in the presence of death, and without issue born of their previous concubinage. The act of 1852 gives to the widowwho is in necessitous circumstances the sum already mentioned, without qualifying her right to receive it by the condition that her previous life should have been blameless, or by limiting its operation to those whose married life should have lasted a specified time. Revised Statutes of 1870, section 1693. It is argued by' one of the opponents that an interpretation of the statute which permits the widow of Marc to partake the beneficence provided by it, would be offensive to our moral sense, and that it could not have been in the contemplation of the Legislature to place a woman, who has thus disregarded religious and social duty, upon the same plane with the respectable and bereaved widow, wliose condition attracted the regard and provoked the compassion of the law-maker. It is very certain, however, that the law has not attached qualifications, nor imposed conditions upon the recipients of this legislative bounty, such as we are asked to supply and enforce in the present proceeding. Should w© attempt to do so, omitting any mention of our want of authority, we must arrange this description of persons into classes, separated from each other by the purity or impurity of their ante-nup■tial lives, or by the longer or shorter duration oi the marriage which preceded the widowhood. There are conditions, however, imposed by the statute which the claimant of this bounty must fulfill. The widow must be in necessitous circumstanceSj and the present claimant is indisputably in that condition. The sum to be received from the succession of her deceased husband must be such, as added to the amount of property owned by her, will make one thousand dollars. She had no property, but. the rents of the mortgaged property occupied by her since her husband’s decease are $325, and are deductible from her portion under the act. Succession of Drum, 26 Annual, 539. The residue is to be paid in preference to all other debts, except those for the vendor’s privilege, and expenses incurred in selling the property, but the widow is entitled to the usufruct only of the sum specified in the act if there be children. The opponent, Gayarré, had a vendor’s privilege on the property sold, under his mortgage, and claims its exemption from the widow’s allow [414] aneé, which, is opposed by Soye for an alleged want of seasonable registry of the privilege. The copy of the act of mortgage contains also the retention of the vendor’s privilege, and it was recorded in the mortgage office on the fourth of April, 1874, a few days -after its execution. It is not pretended that any other mortgage exists, or existed on that property, and the objection of -want of registry is therefore untenable as between these creditors. Two rules relating to the rank of privileges and to the fund out of which they are payable, are well established. One is, that when the movables and unmortgaged property are ■ insufficient to pay the privileges, they must be paid out of the fund arising from, the sale of the property covered by the youngest mortgage, and, that being insufficient) the residue must come out of that next in age. Devron’s case, 11 Annual, 482; Succession of Cerise, 24 Annual, 96; Succession of Rousseau, 23 Annual, 1. The other is, that the destitute widow’s portion primes all privileges created previous to the death of the party, except that of the vendor, but that it yields to funeral expenses, expenses of last illness, and law charges growing out of the administration and settlement of the succession. Foulkes’s Succession, 12 Annual, 537; Quertier vs. Hille, 21 Annual, 429. Applying these rules to the case at bar, the widow of Marc, whose portion is reduced to six hundred and seventy-five dollars by her previous receipts from the succession, must be paid that residue out of the Soyemortgage fund, and the general privileges, which are not satisfied by the sale of the movables, must be paid by the Gayarre mortgage as the least ancient. The taxes and costs of sale of the Soye-mortgaged property áre nearly one half of the sum at which it was adjudicated, and the residue is insufficient to pay the widow’s portion, but the unpaid part of that residue can not be charged against the property affected by the vendor’s privilege. The taxes and costs of sale of the Gayarró-mortgaged property are more than half of the sum realized by its sale, and that residue must bear the burthen of such part of the general privileges as are not satisfied by the sum derived from the sale of the movables. Where the husband dies without descendants, as in this case, the necessitous widow is not required to give security. She does not take the usufruct only of the sum secured to her, but its full ownership. Succession of Hunter, 13 Annual, 257; Yarborough’s Succession, idem 378. The reductions and alterations made by the lower court in the tableau are approved, and the funds must be distributed as directed by that court, except where amended or reversed by this decree, and it is ac [415] cordingly so ordered, the costs of appeal to be paid by the two opponents and appellants in equal parts.