| La. | Dec 15, 1833
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 other
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.