
    MELANCON’S WIDOW vc. HIS EXECUTOR ET ALS.
    APPEAL PROM THE COURT OP PROBATES OP THE PARISH OP ASCENSION.
    • Where the husband died worth five thousand dollars, having bequeathed toj his widow a slave and child, and the heirs having abandoned to her the household furniture, held she was entitled to the marital portion.
    A legacy made by the husband to his wife, mustbe deducted from the amount of the marital portion to which she may be entitled.
    Narcisse Landry, as testamentary executor of the late Paulin Melancon, rendered his account to the Court of Probates for the parish of Ascension, praying that all parties interested might be cited, that his account might be homologated, the payments be made in accordance therewith, and he be discharged.
    Adelaide Denous, widow of the testator, opposed the homologation of the account, because she had not been placed thereon for the fourth of the testator’s property; she having brought no dowry, and he having died rich and childless, leaving her in necessitous circumstances.
    The executor denied that the testator had died rich, leaving her in necessitous circumstances, and required of the widow strict proof of these allegations.
    The heirs joined in this denial, averred that if she had been entitled to the marital portion, she had forfeited that right by improper conduct, and pleaded that if she were still entitled to it, there should be deducted whatever she had received from the decedent by legacy or otherwise.
    
      Babin testified that the widow brought no dowry to the marriage. On her husband’s death she had the means of living, that,the moveable property of the community, which the heirs had left to her; was worth at least one hundred and fifty dollars. She had then no separate property. The negro woman and child bequeathed her were worth one thousand dollars, and .could be hired out for ten dollars per month. Thinks a woman could live there for one hundred and twenty dollars a year. She lived better after than before her husband’s death. The testimony of Babin was confirmed in the main by that of Gaudin.
    The opponent offered in evidence the certificate of her marriage with the testator, a copy of the testament, the account filed, and the inventory and proces verbal of the community property.
    The judge a quo decided the widow was entitled to the portion as claimed, but deducted therefrom the amount of the testator’s legacy to her. She had judgement for the-balance two hundred and twenty-one dollars and twenty-five cents.
    She appealed. The appellees prayed the rejection of her demand for the marital portion.
    
      Jficholls and Isley, for opponent and appellant.
    1. The testimony shows the widow is in indigent circumstances, and is therefore entilled to the marital portion.
    2. The judge a quo erred, in deducting the amount of the legacy to the wife.
    3. By article 2359 of Civil Code, the wife is entitled to .this portion, when the husband dies rich, she being in indigent circumstances. This portion consists of the fourth of the succession, in full property, where there are no children. So far the article is a substantive enactment, and is strictly ■ applicable to appellant’s case.
    
      4. In the case of children, whose interest it was the policy of the aw to protect this portion, it is justly modified and reduced. This latter member of the article has no connection with the first, as shown by its punctuation, and from the propriety and justice of such distinction.
    5. The construction contended for by appellants is strictly in accordance with the principles of justice. In case of children, their interest is protected; incase of none, the person, whom the deceased would have selected, could his will have been consulted.
    6. The fact of the widow being in necessitouss circumstances, must be confined to the moment the succession was opened by the death of her husband. Her rights accrued eo instanti, and no subsequent liberality of the heirs and other circumstances could destroy her vested rights.
    
      Seghers, contra.
    
    1. The widow Paulin Melanqon, is not entitled to the marital portion, unless she was loft in necessitous circumstances, and her husband died rich. La. Code, art. 2359.
    The evidence in this case, does not show either of those facts. The succession left by the husband, as appears from the account thereof, is inconsiderable. At the death of her husband, or immediately after the widow had the means of living, and did live, as confortably as whilst her husband was living, and in the same condition of life, as before her husband’s death. She was in possession of a house, the slaves, bequeathed to her by her husband, and the same household furniture she owned in his life time. By her industry, both after her husband’s death, she contrived to procure such commodities of life as she desired, in addition to what she strictly needed for her support. The evidence further shows, that the condition in life of both the husband and wife, was that of poor planters, obliged to support themselves, by personal manual labor, and that with respeet to the condition of herself and her husband, when both living together she cannot be said to have been left in necessitous 
      
      circumstances, at his death. What might have been necessitous circumstances in the case oí a lady bora m wealth and affluence, and whose husband should have been a man of a high rank in life, and a man of fortune cannot be considered as such, in the case actually before the court.
    The article 2359 of the La. Code, is taken from Spanish law on the subject, and originally from the Novelice of Justinian, and the Authencica Prceterea, ea. C. unde vir et uxor, in the Roman law. The intention of the law is evidently that the widow should enjoy, after the death of her husband, a rank and condition in life, suitable to her former estate. The reasons of the law are perfectly explained in the Répertoire de Jurisprudence, Merlin, Verbo, Quarte de Conjoint Pauvre. No. 1. See also Encylopédie de Jurisprudence. Verbo, Quarte de Conjoint Pauvre.
    
    To entitle the widow to the marital portion, she must be after her husband’s death, actually in necessitous circumstances, considering her former condition of life. See ibd., Merlin and Encyclopedic Méthodique. Febrero, commenting on the Spanish law, which was derived from the same source, goes farther, and says: Part. 1, chap. 1, sec. 9, “quando las mugeres siudas quedan tanpobres, que nada tienen, con que alimentarse, y sus hijos Ricos, por haber heredado de sus padres mucha hacienda, pueden llevar la quarta parte de los bienes pater-nos, que sus hijos deben heredar. Leg. 7, tit. 13, Partida, 6.
    
    2. If the widow be entitled to the marital portion, she is bound to include in that portion, what has been left to her as a legacy, by her husband.
    The article 2359th of the La. Code, “in pine,” is express on that point, and if there can be any doubt on the meaning of the law, arising from ambiguity in the wording or in the punctuation, that meaning must be gathered from the whole tenor of the law, and the evident intention thereof. Incivile est, nisi tota prespecta, una aliqua partícula ejus proposita, judicare vel respondere. L. 9A,ff. De jegb. Yerbum ex legibus, sic accipendum est, tarn ex legum sentential, quam exverbis, L. 6, sec. 1 ,ff. de Verb. sigu. Etsi máxime verba legis hunc Ijabent intellectum, tamen Meus legislatoris, aliud vult. L. 13, sec. 2, if. de esocus. tutor. Donat, saws: “Pour bien entendre i O le sens d’une loi, il faut en poser tous les termes et le préambule, lorsqu’il y en a, afin de juger de ses dispositions par ses mQÜfs, et par toute la suite de ce qu’elle ordonne, et ne pas borner son sens, a ce qui pourrait paraítre différent de son intention, ou dans une partie de la loi tronquée, ou dans le défaut d’une expression. Mais il faut préférer a ce sens étranger d’une expression défectueuse, celui qui parait d’ailleurs évident, par l’esprit de la loi entiére. Ainsi c’est blesser les regles et l’esprit des lois, que de se servir, ou pour juger, ou pour conseiller, d’une partie détachée d’une loi, et détournée á un autre sens, que celui que lui donne sa liaison au tout. Domat, Lois Civiles, livre prelim, tit. 1, sec. 2, sec. 10. See also, Traite des Lois, chap. 12, paragraphes 7, 8 et 9.
    “Il s’ensuit de cette remarque de l’esprit de la loi et de son motif, que s’il arrive que quelques termes, ou quelques expressions d’une loi paraissent avoir un sens différent de celui qui est d’ailleurs évidemment marqué par la teneur de la loi enttére; il faut s’arreter a ce vraisens et rejeter l’autre qui parait dans les termes, et qui se trouve contraire a l’intention. Il s’ensuit encore, que lorsque les expressions des lois sont défectueuses, il faut y suppléer pour en remplir le sens selon leur esprit.”
    That the intention of the law, is that in every case the survivor is bound to include in the marital portion, whatever has been left to him as a legacy by the husband or wife who dies first,” is evident from the fact, that, were it not so, the wife might very often claim and receive the greater part of the succession of her husband, should he die without children, and she happened to have brought no dowry for she might receive in particular legacies, property tot he amount of one half of his estate or of a quarter proportion thereof, which added to the marital portion, one fourth, would give her three-fourths, or a still ' greater part of the succession. In all the different cases, decided in France, in the provinces governed by the Roman law, prior to their repeal, which cases are found in Merlin, Repertoire de Jurisprudence, Verbo, Quarte de Conjoint Pauvre, it was held, that the wife claiming the marital portion, was bound to include therein whatever had been received from . n the predeceased husband by legacy, or otherwise, oee J\o. 2. Verbo. Quarte de Conjoint Pauvre, Merlin.
    
    When the husband died worth 5000 dollars, having bequeathed to his widow a slave and child, and the heirs having abandoned to her; the household furniture, held she was entitled to the marital portion.
   Martin, J.,

delivered the opinion of the court.

The widow complains of the judgment before us, because the court compelled her to suffer the deduction of a legacy left to her by her husband, from the marital portion of his estate, to which she successfully urged her claim. The executor complains of the judgment also, because it supports the claim to the marital portion.

As if this court be of opinion that the marital portion ought not to have been allowed, it will not be necessary to inquire whether the legacy was properly deducted, it is best to examine at first, the validity of the claim to the marital portion.

It is grounded on the La. Code, 2359, and it is resisted on the absence of evidence, in regard to two essential facts, viz: that her husband died rich, and that he left her in necessitous circumstances.

On these two questions no one could possess better information, than the judge of Probates, who made the inventory and presided at the settlement of the estate. It appears that after the payment of all the debts, there was a sum of upwards of five thousand dollars for the heirs. The wife brought no dowry, and at her husband’s death had no separate property. The terms.rich and necessitous circumstances, are to be taken relatively. If the husband leaves five thousand dollars clear of debts, and the wife has no special property, then the Court of Probates may correctly assume that the husband died rich, because he was so if compared with the wife, and she in necessitous circumstances, having nothing, if compared with the husband. It is true two witnesses think that as the husband left to the wife by will a female slave and child, and the heirs abandoned to her the household furniture, she might support herself by her labor and that of these slave's; but the slaves may die or otherwise become useless, and her services insufficient. It appears to us the court did not err in supporting the claim to the marital portion.

b/ thea°msband to his wife, must be deducted from the amount of the marital portion, to which she may ontitlcd-

This leads us to the examination of the obligation of the wife to suffer a deduction of the amount of the legacy, valued at one thousand dollars from her marital portion.

In this we concur also with the Court of Probates. If a husband leaves to his wife nominatively one fourth of his _ . estate, she certainly may not claim one half?, e. one fourth J J for the legacy, and one fourth for the marital portion. If he ° J J *• leaves her an annuity sufficient to enable her to live in same style as to comfort, and elegance as persons of her rank live in; then she is not left in necessitous circumstances, so if she have the means of doing so, independently of her husband.

. When the husband is rich and the wife in necessitous circumstances, whatever he leaves by his will be considered by the courts, as left in compliance with his obligation to leave her one fourth of his estate,

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed with costs.  