
    
      GOLE'S WIDOW vs. HIS EXECUTORS.
    
    Appeal from the court of probates of parish and city of JNe\> -Orleans. *
    ded," the means of ar* riving at it are granted.
    a wife ⅛ common in goods, ^ to the property acquired in Louisiana, although she here-
   Porter, J.

delivered the opinion of the court. The widow of the testator claims from the executors the one half of the property, re-1 * - al and personal, of which he died possessed; ®n the ground that it was acquests and gains made daring coverture.

The executors resist the action on two grounds : 1st. that the court of probates had no iu/isdietion of the case: and 2nd. that the plaintiff has no legal right to any portion of the property acquired during marriage.

qqK> testator was married to the plaintiff, in , _*at __ the state ofNew-York, m the year 1810. He was then about 21 years of age, and she 63. After their marriage, they lived some time together, when the husband came to New-Orleans. After a year’s residence here, he returned to New-York, and there remained with his wife for the space of three years. At the expiration of which time he again removed to New-Orleans, where he resided until his death in 1827, and where he acquired the property which is the subject of the present contest. The plaintiff’remained in New-York, and never was in this state. The deceased made u will, by which he bequeathed to a brother living in Ireland, nearly the whole of the property of which he died possessed.

The first question relates to the jurisdiction of the court of probates, and we think the judge below did not err in taking cognizance of the case. That court having exclusive jurisdiction of the settlement of all claims against an estate represented by an executor, and its liquidation and final settlement, it follows that it is before that tribunal a claim must be made, the rejection or admission of which is necessary to enable the succession to be closed. The other construction supposes the court not cloathed with sufficient powers to carry its undoubted jurisdiction into effect. It sometimes, indeed, happens, that tribunals are so defectively organized, that one is compelled to act as the assistant of the other; but it requires a very clear expression of legislative will to authorise such a conclusion; the general rule being, that where the end is conceded, the means of ariving at it are granted.

The next, and more important question, relates to the right of the wife in the acquests and gains.

In the case of Saul vs. his creditors, which lately underwent so much discussion in. this court, principles «ere established* which greatly facilitate the investigation of the rights ofthe parties now before us.. It is true in that case, husband and wife had both resided in this state; and in the present instance, the husband alone lived in Louisiana, ^ But we then determined that the law, or, to adopt the language of the jurisprudence of the continent of Europe, the statute, which regulated the right» of husband and wife, was real not personal ¿ that it regulated things, and subjected them to ® ⅛ _ laws of the country within winch hey were found. It follows, then, as a consequence, that property within the limits of this state, must, on the dissolution of the marriage, be distributed according to the laws of Louisiana, no matter where the parties reside; because, viewing the statute as real, it is the thing on which it operates that gives it application, not the residence of the person who may profit by the rule it contains. Quando 'verba consuetudinis, vel statuti, disponunt circa rem, tunc de bonis judicandum est secundum consuetudinem loci, ubi res sunt situates : quia consuetudo cjj. sit res ipsas, sire possirenrtvr a cire, sire a foret si. Greg. Lopez, Gloss. 2 Par. 4 tit. 11 l. 24, Matienso, lib. 5, tit. 9, b. 2, gl. 1, n. 75.—This doctrine has not, indeed, been much contested in the argument; and both parties seemed to concede, that the case must be governed by our law. But the counsel for the op ell ants have contended that even by it the claim of the wife cannot be maintained» Their principal grounds of objection, are - fir-a, vh ositive legislation of the state; and, second, the separation of the husband and wife during ¡he whole of the time the a 41 ty »vas acquired. J •

The law of the fuero real, so often quoted ^ in this court, declares that “ every thing which the husband and wife acquire while together, shall be equally divided between them.” It is urged this law does not provide lor such a case as is now before the court; and that if it • did, it is repealed by the 3370th article of the Louisiana code, which declares that a marriage contracted out of the state, between per-, sons who afterwards come to live here, is also subjected to the community of acquests and gains, with respect to such property as is acquired after their arrival. The phraseology here used, it is said, indicates clearly the intention to exclude such a case as this. The statute refers to persons coming to reside here, not to one individual: it speaks not of his, or her, but their arrival. ,

The effect which the provisions in the late amendments to our code have in repealing former laws, depends on the general dispositions contained in them, which declares what influence shall be given to them m this respand to their operation, according to the general rules of construction.

The case of the appellants can receive no ‘ ‘ support on the first around. It is provided bv rr . s v J the 3521 article of the Louisiana code, that the former laws of the country are repealed in every case for which it has been specially provided in this code; and they shall not be invoked as laws, even under the pretence that their provisions are not contrary or repugnant to those of this code. Now the case of one of the married couple moving into this state, is not specially provided for: the former law, therefore, in relation to it, is not repealed by this general provision. Whether, on the general rules of construction, the article already cited can be considered as abrogating a former law which, although different, is not‘con-" trary, little need be now said. The vast quantity of positive legislation which has been given to the people of Louisiana ¡since the change of government, has called the attention of our courts repeatedly to this subject, and the principles which forbid such a conclusion have been again and again stated by this tribunal. The remarks, however, made in the case of Saul vs. his creditors, shewing that the provisions in the«ld code which gave a community of acquests and gains in marriages con-traded within this state, did not repeal a for-_r mer law which gave them in marriages con-traded out of the state, when the parties after-wards removed into Louisiana, are so perfectly applicable to the instance before us, that we refer to them to shew why a provision in relation to husband and wife coming to reside in this country, cannot affect rules in relation to the removal of one of them.

The law of the fuero real, it is true, does not speak of one of the spouses coming into the country, nor does it provide for the case where both live under another government, at die dissolution of the marriage; but it is a necessary consequence of the statute being real, that the property acquired within the limits of the state, and found there on the marriage being dissolved, should be governed by its provisions, no matter where the parties reside.

Whether the separation, and the failure of the wife to contribute her portion of care and industry to the acquisition, will defeat her right, is the next question to be examined.— And finding, on this head, nothing in the law, its commentators, nor, in our judgment, in the reason of the thing, which makes the living apart, in different states, a greater objection than a separation would be in the country r . where the statute was in force, we shall exum-ine what effect different residences would have, if both had lived within the state of Louisiana.

On the argument, counsel went at some length into the principles on which the community of acquests and gains was established; and taking for the basis of such a rul« the care and industry of both the spouses, they drew the conclusion that when it was established in evidence that one of them had not, or could not have, assisted in the acquisitions, the one so failing to contribute, could not rightfully claim any portion of them.

The doctrine of the community of acquests and gains, was unknown to the Roman law; and, although now common, we believe,to the greater number of the European nations, its origin cannot be satisfactorily traced. The best opinion appears to be that it took its rise with the Germans, among whom at a very early period of their history, the wife took, by positive law, the one third of all the gains made during coverture. It is very probable that it was the real, or presumed, care and industry of the wife, which first produced this legislation; and, in an early state of society, the facts most probably fully justified such a rule. But, in this, as in many other instances, legislation survives long after the causes which Occasioned it, have ceased to exist, and the non-existence of these causes will, not authorise courts of justice to refuse giving effect to Ae law. There are few, we believe, who flunk* at the present stage of society, A at the wife contributes equally with the husband to the acquisition of property. If such cases exist, Aey are exceptions to the generad rule. And yet, in this state, neither idleness, wasteful ha*, hits, nor moral or physical incapacity, would deprive the wife of an equal share in the ac-quests and gains; for our code declares that every marriage, in Louisiana, superinduces, of sight, partnership, or community, in all acquisitions Such, also, was the rule in Sj • ⅛. La. Code, 2369. Merlin’s rep. verbo communauté, vol. 2, p 548. Febrero, p. 2, lib. 1, cap. 4, p. l. n. 3.

The writers who treat on this subject, make @o such exceptions as are herd contended for. On the contrary, they state that the residence of the parties in different places will no* prevent the community from existing. In Spain'. indeed, if the wife never went to'coha hit w’tfc' _ _ _ husband, the community did not com* - 'menee: sin I-alter ira cohabitar cor su mm rido, is the case put by Febrero, in the pas# sage rebed on by appellant’s counsel. As in the ancient customs of France, it began not. frona the day of the marriage, but from its consona* matinn. Th separation snoken ofbv the same author, is a legal one. It required the indg* m'ent of an ecclesiastical court, and although "such jurisdiction is unknown to us, still a judi« cial sent nee is necessary to destroy the -conk munhv. It was so in France: it is so unde# pur code. The law wisely refuses any kruj eTcc» to a voluntary separation of those vh« are hound - by the most solemn of obligation# $n live together. Fc-tMer, ?rait? cl a rop~, nor. 1, t\ ¾; Ihv\ pav. ft, no. 404, Febrero, pap, 8, 7T. ’, can. 4, uos.1, VI» & 50.

On the particular circumstances of thecas© pn wh’ch so much has boon sabl at the bar few remarks are roen-red from the court, Th ’ match most, pr1 bahly or’g'nnfcd (as such connexions generally do, whore there is s® geoof;, rpcra-r'tv of age) in curhhiv on the on© Side, and fox,y on the n,h''r. b-Tp who opf'reg ⅜⅞ avarice, has the less cause of complaint ⅜ Ae bargain turns out a hard one. The sepr- ® ⅜ - íatión most pro nhly was voluntary. The h 1 J - feand, at least, could not (if living) have urgei. it was not, for if he had desired his wife to live With him, it was his duty to have required her to do so.

Smith and Workman for the plaintiil-— Preston and Strawbridge for the defendants;

f W⅛ cannot take into our consideration the Property in New-York. Our statute is real and where the parties are not married here, ean only act on the property found in Louisiana. That which is in our sister state, will jfollow its laws^

It is therefore ordered, adjudged and denied that the judgment of the probate court be iffirmed with costs.  