
    
      ABERCROMBIE vs. CAFFRAY & AL.
    
    West’n District,
    
      Aug. 1824.
    A widow is entitled to the marital portion though she was married and resided and her husband died in another state.
    Appeal from the court of the fifth district.
   Porter, J.

delivered the opinion of the court. The petitioner, widow of the late Lyman Harding, claims from his son and heir by a former marriage, the marital portion, on an allegation that she brought no dowry, and that she has been left in necessitous circumstances although her husband died rich.

The marriage was contracted in the state of Massachusetts. The domicil of the husband being at the time in the state of Mississippi, and continued so until his decease.

Two questions have been raised in argument. 1st. Is the plaintiff entitled to the marital portion? 2nd. If she be, whether she should take the usufruct, or the full property of the fourth part of the estate?

The difficulty of deciding the first question, arises from the conflict of two general, and well established principles of jurisprudence.

The plaintiff contends, that real estate on the death of the owner, must be distributed according to the laws of the country where it is situated.

The defendants urge, that it is in virtue of the contract of marriage the plaintiff can have any claim on the estate, and that this contract mut be governed by the laws of the husband’s domicil.

We think the rule first mentioned must prevail. The law speaks generally of the wife, without distinguishing, whether she be domiciled in this state or not. It admits a foreign heir to take the property, and we are unable to see why it should reject the widow, who is a stranger, for her portion. It is true that in virtue of a contract made in another country she obtained the quality of wife; but if it be no objection to the child that he proceed from a marriage out of the jurisdiction of the state, no satisfactory reason has suggested itself to us, why this circumstance should operate against the widow, who, according to our law, is considered in the light of an heir, and takes by inheritance. Partida 6, 13, 7.

The strongest reason that can be offered against her right is, that in contracting in another country, she intended to be governed by its laws in every thing relating to her marriage. Admitting this to be true, it cannot be considered as an abandonment on her part, or renunciation of the advantages which the positive laws of other countries might confer on her. A marriage in Scotland, entitles the wife to dower of her husband’s real estate situated in England. 2 Henry Blackstone, 146-2 Johnson’s cases, 29.

The judge of the court of probates, to whom this claim was first presented, directed that as the intestate left a child, the widow should only take the one fourth of the estate in usufruct. On an appeal to the district court, the judge of that tribunal considered she was entitled to the one fourth in full property. The reason assigned here for that decree is, that the child of the deceased proceeded from a former marriage, and that by the Roman law, the wife on such an event took not as an usufructory, but as owner, and that such was the law of Spain.

By the law of the Partidas, already cited, it is declared "that if the husband should not leave his wife the means of living independently, and she should not possess them herself, she may inherit one fourth of the whole, notwithstanding he should leave children."

By our code, a wife under the same circumstances has a right “to take out of the succession of the deceased, what is called the marital portion—that is the fourth part of said succession in full property if there be no children" C. Code 334, art. 55.

This law clearly repeals that of the Partidas, by virtue of which the widow took whether there were children or not, and without distinguishing from what marriage they sprung. It would be strange then to hold that the right given her by the positive law of Spain to claim the one fourth in full property was taken away by our code; but that a provision of the Roman law to the same effect is still binding here, and that too, because it was in force in that country, whose direct legislation on the same subject has been, repealed.

But that law could not have been in force there; for as we have already seen, the wife took one-fourth in full property whether the husband left children, or not, Consequently all enquiry as to the mother was done away, for whether they were her children, or her husband's by a former wife, the result was the same.

Independent of this reason, it is satisfactorily shewn to us, that the provisions of the Roman law on the subject of marital portion, were not of authority in Spain. Febrero states, that according to the jurisprudence of Romeo, where the children were three or four, the widow only took a child's part; but that this rule was not observed in Spain, because the law of the Partidas made no distinction as to the number Febrero, p. 2, lib. 2, cap. 3 § 4.

On the same principle we must decide this case. Our law makes no distinction between children of the different marriages, and we cannot. This rule of construction is almost daily acted on by this court. We could not adopt that contended for, without doing a great violence to the text. The code says the widow shall have the fourth in full property, if there be no children. Were we to give the plaintiff the one fourth, when the intestate has left a son, we would be doing one of two things, either disobeying the express words of the law, or saying that a descendant of a former marriage was not one of his children.

Baker for plaintiff, Brownson for defendants.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, annulled and reversed, and it is further ordered, adjudged and decreed, that the judgment of the probate court be also annulled, inasmuch as it gives to the plaintiff a portion of the personal estate; and proceeding to give such judgment as in our opinion ought to have been given; it is ordered and decreed that the plaintiff do recover of the defendants possession of one fourth part of the real estate of which Lyman Harding died owner in this state, to be held and enjoyed by the said plaintiff in usufruct, for and during the term of her natural life, subject however to the payment of one fourth part of the debts due by the succession of said Harding, and further that the defendants pay the costs in the court of probates, and the plaintiff those of the appeals.  