29 La. Ann. 702 | La. | 1877
Opinion on the Merits
On the Merits.
J. G. White died in Bossier parish in July 1876. His widow was appointed administratrix of his succession, and the property was sold by
• On March. 2d 1877, a tableau was filed for her, ranking the debts of the deceased, and of the succession,* upon which her widow’s claim of one thousand dollars is placed. Lane, an acknowledged creditor, opposes it. The succession is confessedly insolvent.
There is no doubt that the widow was in necessitous circumstances at, and after her husband’s death, and at the time of filing the tableau. The opponent insists upon the authority of McCoy’s case, (26 Annual 686.) that the condition of the widow at the time the claim is made must determine her right. This is in direct conflict with the dictum of Gimble v. Goode, (13 Annual 352); also Suc. Marx, (27 Annual 99.) that the right of the widow and of the minor children of a decedent to the portion secured to them under the act of 1852, vests in them at the moment of the death of the deceased, and their condition then, and not at any subsequent time, is the test of the rightfulness of their claim. We think this is the sounder doctrine, and is more in harmony with the manifest intent of the act, which was to ward off from the widow and young children of one recently dead, the misery of unmitigated destitution, and to cover, as with a shield, these helpless mourners from the pitiless shafts of poverty, at the moment when the protecting arm of the husband and father was made powerless by death.
It is also contended by opponent that whatever may be the time that controls the right of the necessitous widow, if she does not reside in this State at the time her portion is formally demanded, she will not be entitled to receive it. On the other hand we are referred to a reported case, Suc. of Christe, (20 Annual 383.) wherein it was ruled that a surviving necessitous widow, who had never been in the State, was entitled to the benefit of the act of 1852, a dictum we do not approve,
As the right of Mrs. White accrued at the moment of her husband’s death, her subsequent removal from the State did not annihilate it. She was a resident of Louisiana during the coverture, and at its termination, and may well be considered as falling within the designation of ‘its own widows’, used in Stewart’s case (12 Annual 89.) when applying a different principle.
The opponent argues that as the widow in this case has- only the usufruct, if she is permitted to- take the money out.of the State, the minor children may be deprived of the benefit which the act secures to them. To this suggestion it may be answered, 1. that it does not concern the creditor what becomes of the money if it be once ascertained and determined that it does not belong to the fund which he can make available to the payment of his debt. And 2. we have no power'to compel the
The legislature has not thought proper to protect the interests of the minor further than they are in the Act which created this special provision for them, although twenty-ñve yeafs of experience under it must have presented cases not unlike the^present, and it is not for us to supply any omission which may be discovered in practically applying it.
Judgment affirmed.
Lead Opinion
On Motion to dismiss.
The opinion of the court was delivered by
The administratrix moves to dismiss on the ground that the claim of the opponent is less than five hundred ^dollars.
The claim of the opponent is not in controversy. It is acknowledged by the administratrix. He opposes the allowance of the widow’s portion which exceeds that sum. The motion is denied.