No. 7629 | La. | Jan 15, 1880
The opinion of the court was delivered by
The administrator of Boisblanc’s succession placed upon his tableau the sum of one thousand dollars, to be paid the widow of the deceased as her portion under the Act of 1852, now incorporated in the Civil Code as an addendum to art. 3219, new no. 3252. The insolvency of the succession is admitted.
There is a policy of insurance on Boisblanc’s life for five thousand dollars for his wife’s benefit, upon which she has instituted suit, and
The counsel for the widow invokes as conclusive the decision in White’s Sue. 29 Annual, 702, wherein we held that the pecuniary condition of the widow at the moment of her husband’s death must determine her right to the portion reserved for widows in necessitous circumstances. We then discarded M’Coy’s case, 26 Annual 686, as authority, because it was in direct conflict with Gimble v. Goode, 13 Annual 352, and had been overruled already, by the same court that decided it, in Max’s case, 27 Annual 99.
Becognizing the doctrine in White’s succession as authority in its entirety, and applying it here, we find that at the moment of the husband’s death, the widow became entitled apparently to a sum much larger than the law sets apart for necessitous widows. The event that made her a widow is the contingency upon which eo instanti her right to that sum ensues. No one can pretend that if she had actually received it, her claim in the present proceeding could be listened to for an instant. But it seems to have been supposed that her claim should be finally determined against her, because she was prosecuting a suit on the insurance policy, and it was accordingly rejected in the lower court. On the other hand the counsel for the widow urges that this chose in action is not ‘ property,’ in the sense in which that word is used in the Act of 1852, and as the suit is undetermined, that she is entitled to a present absolute judgment for the sum allotted to her as a widow’s portion.
Courts would be singularly devoid of power to prevent injustice, when the possibility of inflicting it was staring them in the face, if it were not within their authority and discretion to make a decree in such suit which shall protect all the parties to it.
The meaning of the Act under consideration cannot be mistaken. If the widow or minor children have nothing — are in necessitous cicum-stances — she is entitled to one thousand dollars from her husband’s succession. If she or the minor children have any species of property, not amounting in value to that sum, or have money not of that amount, she is entitled to so much as, when added to what she or they have, will make up that sum. At the moment of the husband’s death, the widow Boisblanc became possessed of the right to demand, sue for, and receive the sum secured to her by the life insurance policy, and this is such property as is contemplated by the Act. It may be that she will not
It is ordered and decreed that the judgment of the lower court, amending the administrator’s account by disallowing the sum of one thousand dollars to the widow, is avoided and reversed, and it is further ordered and adjudged that the account, in so far as it allows the above mentioned sum to the widow is approved and homologated, subject to this proviso and condition, that before the administrator shall be required to pay that sum to her, she shall give bond, with security to be approved by the Judge of the Second District Court of Orleans parish, for the prompt and faithful return to the administrator of the sum'reeeived by her from him, so soon as she shall have received a like sum from the Insurance Company defendant in her suit on the Life Policy; or else, in lieu of said bond, that she transfer and assign to said administrator so much of the judgment to be recovered of the Insurance Company, or of her demand against that Company in said suit, as will equal the sum paid to her by him.
It is further ordered that the widow Boisblanc recover of the opponents the costs of this appeal.