Victor v. Tagiasco's

| La. | Jun 15, 1834

Martin, J.,

delivered the opinion of the court.

The defendant was sued by the late husband of his testatrix who claimed her estate on an allegation that he had never been separated from her, and that she left neither ascendant or descendant, nor collateral relations capable of inheriting.

His pretentions were resisted on the ground that the defendant’s testatrix had left a natural brother who was entitled to her estate in preferance to the plaintiff her late husband.

., The surviving husband, not se¡¡¡¡¡f Sídíceased S°Aed “¿con-macoiiaSdSaSnowLige'd, ac¡n preference to her natural brother

There was judgment for the plaintiff, and the natural brother having died, in the meantime his widow and the natural tutrix of his children appealed.

The only question which the case presents for solution is .whether the Court of Probates was correct in prefering the claim of the husband to that of the natural brother.

The pretensions of the appellee rest on the articles of the La. Code which provides that if a married man has left no lawful descendants, ascendants or any collateral relations, , but a surviving wife not separated from bed and board from him, the wife shall inherit from him to the exclusion of any J natural child or children duly acknowledged. On the contrary, if it is the wife who died without any lawful aseendant, descendant or collateral relation her surviving hushand not separated in bed and board from her shall not inherit from her, except in case she should not leave it i ¶ i , any natural child or children duly acknowledged.

The Court of Probates has thought that the article being clear and free from ambiguity,' and the plaintiff having brought himself clearly within it, his pretensions could not be resisted: that the article 918 could only be reconciled with the preceding by being considered as an exception thereto; and that it could be more easily reconciled with it, than with the article 923.

On the part of the appellant we have been referred to the works of several French authors on the construction and interpretation of several articles of the Napoleon Codé which are similar to those of the La. Code, relied on this case, and which are considered to bear very great analogy to the latter. 8 Tissandier 385 No. 1945. Favard de L' Anglade des successiones 154. Rogrion on article 766 de Code Napoleon. 4 Toullier 280 No. 269. 3 Duranton livre 3, titre 1.

It has appeared to us that the Court of Probates did not err. In our legislation the surviving wife is preferred to all the natural relations of the husband, and he to all her # natural relations except those in the descending line. La. CWe 918 and 913. It is true some provision is made for natural brothers and sisters and their descendants. Ib. 917; to which an exception is made for the surviving wife or husband. Ib. 918. If in order to place either of these in x the situation the legislator has clearly assigned them atural brothers and sisters, or their descendants are in cases postponed to the former; Courts of Justice merely comply with the will of the legislator in giving to the surviving spouse his legitimate rank.

wife'Is c'X'd”’to the inheritance and preferred to all the natural relations of tiie relations'

It is therefore ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed with costs.