5 Mart. (N.S.) 255 | La. | 1826
delivered the opinion ofthe court. In this case the plaintiff claims property as the heir of his deceased child, and prays that a partition may be made between him and the children of his late wife, by a former husband. The judge of probates made a decree, by which he considered all the estate left at the death of the former husband as belonging to the community which existed between them; and which ought to have been equally divided and partitioned between the widow and the heirs of her first husband. From this judgment the defendant appealed.
The evidence of the cause which comes up on the record, shews that the mother of the deceased child, under whom the appellee claims as heir, was married to Grimbal Robert, in the state of South Carolina, by whom she had issue two children; that after the death of Robert, she was lawfully married to the plaintiff, and had by him one child, and subsequently died, leaving the child alive,
According to the laws of South Carolina proven, the slaves which the wife owned before marriage, and all personal property which she acquired, afterwards vested in full right in her husband, as a consequence of the matrimonial union. The land purchased by him in this state, and paid for out of his own funds, became exclusively his. In truth, the evidence shews that at his death, nothing existed which could form a community of acquests and gains; we are,
From this view of the case, we are necessarily led to the consideration of the will, inventory and agreement, by which the widow settled the affairs of her deceased husband’s estate, with his heirs. The will, we think, is good and valid in point of form and probate; and transferred in fee simple all the disposable portion of the testator’s succession: but as he had forced heirs at the time his estate descended, he could only give by will, one-fifth part of his property to the
It is therefore ordered, adjudicated and decreed, that the judgment of the court probates be avoided, reversed and annulled. And it is further ordered, &c. that she cause be sent back to the court below, with instructions to the judge to cause a partition to be made in such a manner as to allow to the plaintiff, as heir of the deceased child, one-third of his late wife’s estate, as derived from the former husband; that is to say, one-fifth part of his succession.