The opinion of the court was delivered by Watkins, J.
On rehearing by Breaux, J.
Watkins, J.
This suit is instituted by the surviving widow of Charles H. Dupuy, who died in the month of October, 1898, against his [870]*870succession and heirs, claiming that he died rich,' leaving her in necessitous circumstances, and that she is entitled to receive from said estate what is termed “the marital portion”. .
' ' The defense is a-general denial; and further, that her husband haid insured Ms life iii her favor for the'sum of $1,800, which she collected soon after his death." •
On the trial, theré was judgment in favor of the plaintiff, decreeing her entitled to íéc'eive one-fourth of thirteen thousand dollars as' the value of the succession, after th'e'pajuneiit o'f its debts, but in usufruct, only; conditioned upon her execution of bond with solvent security according to law.
It is from that judgment that the defendants prosecute this appeal.
The statement of plaintiff’s counsel is, that she married the deceased in the year 1893; that she brought no dowry into the marriage, and that at the time of his death, she had no property or any means of gaining a livelihood.
That her husband at his death, left no children issue of their marriage, but that he left three children of a previous marriage. That the wife, after the death of her husband, collected eighteen hundred dollars of insurance on his life. That the succession, after the payment of all debts, is worth thirteen thousand dollars.
Defendants’ counsel state thart the succession of the deceased is still under administration, and no account has ever been filed. That at his death, Charles H. Dupuy left three children by a former marriage, all of whom are daughters, two of them minors.
That they resist plaintiff’s claim on the ground, that she was at the time of her husband’s death 'the beneficiary to the extent of one-half of two insurance policies on the life of her husband; one of the policies in the Pacific Mutual of California for $3,000, the other a paid up policy in the Equitable Life of New York for $600, and that the plaintiff had prior to the institution of'this suit collected thereon the amount due her, of $1,800.
They aver that when the plaintiff married Charles II. Dupuy, she had nothing. That she was employed by the deceased for four years before the marriage, as a governess for his three daughters, at a monthly salary of ten dollars, and lived like the family she was serving. The plaintiff is now 41 years of age, and that her health is as good as it was before her marriage.
[871]*871That plaintiff has an unmarried son, twenty-four yea-rs of age, who recovered from the succession one hundred and fifty dollars for his personal services as manager of the plantation of the deceased during the months of October and November, 1898, and that this young man is capable of earning seventy-five dollars per month. That the deceased and his family lived as people of very ordinary means, or what may be termed “a frugal life”.
Thereupon, defendants’ counsel contend (1) that the deceased did hot die rich leaving his surviving widow in necessitous circumstances, and that she is not entitled to the marital fourth; (2) that if she is. entitled to the -marital portion, she must take it less the amount' she has received from insurance on her husband’s 'life; that is, the sum "of $1,800; (3) that the court can not decree-her to be entitled to the marital portion at this stage of the proceedings in the succession and must leave the amount to be determined by the final account of administration. '
The law provides, that when the -wife has not brought any dowry, if the husband die rich leaving the survivor in necessitous circumstances,' the latter has a right to take out of the succession of the deceased, what is called the marital portion; that is the fourth o-f the succession in full property, if there be no children, and the same portion iri usu-fruct only, when there are but three, or a smaller number of children.
R. O. C., 2382.
The question for decision is, did Dupuy die rich, leaving his widow in necessitous circumstances? ■ '
In Melancon vs. Executor, 6 La., 105, Judge Martin, speaking for the court, said:
“If the husband leaves his wife ‘an annuity sufficient to enable her to live in the same style as to comfort, and elegance as persons of her rank live in, then she is not left in necessitous circumstances’”
In Smith vs. Smith, 43rd Ann., 1140, the court said:
“The only question is, whether the deceased left plaintiff in necessitous circumstances. It is well settled in our jurisprudence'that the terms 'necessitous circumstances’ are used' relatively to the fortune of her husband, and to the condition in which she lived during the mar” riage. As said in one case: ‘In estimating her necessities, the law requires that we should take into consideration the condition of her husband and the habits of life which his ample fortune must have engendered in his family. The rule derived from the Roman and Span[872]*872ish law in such cases is, that the surviving wife is entitled to the marital portion,'unless she has the means bene et honeste vivere, according to the condition of her husband.’ Dunbar vs. Heirs, 5 Ann., 159.”
In Succession of Fortier, S Ann., 104, it was held, “the principle upon which the law appears to be founded is, that neither of the marital parties who have lived together in the common enjoyment of wealth and of the position which it gives, shall be suddenly reduced to want; and a part of the estate of the deceased, who has died rich,- is appropriated to relieve the survivor, who, in the absence of it, would be reduced to poverty.”
In Gee vs. Thompson, 11th Ann., 657, the court used this language:
“The surviving husband or wife is to have the marital fourth only “ when the pre-deceased spouse died rich leaving the survivor in ne- “ eessitous circumstances. * * * The common law of England “ gives the surviving wife, whether rich or poor, dowry in her hus- “ band’s estate; * * * but our law, if less generous in this res-
“pecfc, affords something to the necessities of the survivor. We think “ it should receive a fair if not a liberal construction.”
In Succession of Leppelman, 30th Ann., 468, the court observed, that “rich is a relative term. Property which would make a person, in one condition of life rich, would be inadequate to supply the wants, albeit they are artificial, of one in another condition’ of life.”
In Succession of Derouen, 10 Ann., 675, it was held:
“The intention of the legislator, in that article, is clear, that the “ needy surviving spouse shall not, in any case, take from the succes- “ sion of the wealthy pre-deceased spouse, who has left children, more “ than the share which will be coming to each * * * To give him “more, would be to impoverish his children, * * * contrary to “ the policy of the law, which is, not to disturb the order of inherit- “ anee, but in certain cases to count a surviving spouse as one of the “ children of the deceased spouse.
* * ■*- * -x- * K
“In the application of the law, in relation to the marital portion, “ the means possessed by the needy spouse are always to be taken into “ account.”
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The opinion of the court was delivered by Watkins, J.
On rehearing by Breaux, J.
Watkins, J.
This suit is instituted by the surviving widow of Charles H. Dupuy, who died in the month of October, 1898, against his [870]*870succession and heirs, claiming that he died rich,' leaving her in necessitous circumstances, and that she is entitled to receive from said estate what is termed “the marital portion”. .
' ' The defense is a-general denial; and further, that her husband haid insured Ms life iii her favor for the'sum of $1,800, which she collected soon after his death." •
On the trial, theré was judgment in favor of the plaintiff, decreeing her entitled to íéc'eive one-fourth of thirteen thousand dollars as' the value of the succession, after th'e'pajuneiit o'f its debts, but in usufruct, only; conditioned upon her execution of bond with solvent security according to law.
It is from that judgment that the defendants prosecute this appeal.
The statement of plaintiff’s counsel is, that she married the deceased in the year 1893; that she brought no dowry into the marriage, and that at the time of his death, she had no property or any means of gaining a livelihood.
That her husband at his death, left no children issue of their marriage, but that he left three children of a previous marriage. That the wife, after the death of her husband, collected eighteen hundred dollars of insurance on his life. That the succession, after the payment of all debts, is worth thirteen thousand dollars.
Defendants’ counsel state thart the succession of the deceased is still under administration, and no account has ever been filed. That at his death, Charles H. Dupuy left three children by a former marriage, all of whom are daughters, two of them minors.
That they resist plaintiff’s claim on the ground, that she was at the time of her husband’s death 'the beneficiary to the extent of one-half of two insurance policies on the life of her husband; one of the policies in the Pacific Mutual of California for $3,000, the other a paid up policy in the Equitable Life of New York for $600, and that the plaintiff had prior to the institution of'this suit collected thereon the amount due her, of $1,800.
They aver that when the plaintiff married Charles II. Dupuy, she had nothing. That she was employed by the deceased for four years before the marriage, as a governess for his three daughters, at a monthly salary of ten dollars, and lived like the family she was serving. The plaintiff is now 41 years of age, and that her health is as good as it was before her marriage.
[871]*871That plaintiff has an unmarried son, twenty-four yea-rs of age, who recovered from the succession one hundred and fifty dollars for his personal services as manager of the plantation of the deceased during the months of October and November, 1898, and that this young man is capable of earning seventy-five dollars per month. That the deceased and his family lived as people of very ordinary means, or what may be termed “a frugal life”.
Thereupon, defendants’ counsel contend (1) that the deceased did hot die rich leaving his surviving widow in necessitous circumstances, and that she is not entitled to the marital fourth; (2) that if she is. entitled to the -marital portion, she must take it less the amount' she has received from insurance on her husband’s 'life; that is, the sum "of $1,800; (3) that the court can not decree-her to be entitled to the marital portion at this stage of the proceedings in the succession and must leave the amount to be determined by the final account of administration. '
The law provides, that when the -wife has not brought any dowry, if the husband die rich leaving the survivor in necessitous circumstances,' the latter has a right to take out of the succession of the deceased, what is called the marital portion; that is the fourth o-f the succession in full property, if there be no children, and the same portion iri usu-fruct only, when there are but three, or a smaller number of children.
R. O. C., 2382.
The question for decision is, did Dupuy die rich, leaving his widow in necessitous circumstances? ■ '
In Melancon vs. Executor, 6 La., 105, Judge Martin, speaking for the court, said:
“If the husband leaves his wife ‘an annuity sufficient to enable her to live in the same style as to comfort, and elegance as persons of her rank live in, then she is not left in necessitous circumstances’”
In Smith vs. Smith, 43rd Ann., 1140, the court said:
“The only question is, whether the deceased left plaintiff in necessitous circumstances. It is well settled in our jurisprudence'that the terms 'necessitous circumstances’ are used' relatively to the fortune of her husband, and to the condition in which she lived during the mar” riage. As said in one case: ‘In estimating her necessities, the law requires that we should take into consideration the condition of her husband and the habits of life which his ample fortune must have engendered in his family. The rule derived from the Roman and Span[872]*872ish law in such cases is, that the surviving wife is entitled to the marital portion,'unless she has the means bene et honeste vivere, according to the condition of her husband.’ Dunbar vs. Heirs, 5 Ann., 159.”
In Succession of Fortier, S Ann., 104, it was held, “the principle upon which the law appears to be founded is, that neither of the marital parties who have lived together in the common enjoyment of wealth and of the position which it gives, shall be suddenly reduced to want; and a part of the estate of the deceased, who has died rich,- is appropriated to relieve the survivor, who, in the absence of it, would be reduced to poverty.”
In Gee vs. Thompson, 11th Ann., 657, the court used this language:
“The surviving husband or wife is to have the marital fourth only “ when the pre-deceased spouse died rich leaving the survivor in ne- “ eessitous circumstances. * * * The common law of England “ gives the surviving wife, whether rich or poor, dowry in her hus- “ band’s estate; * * * but our law, if less generous in this res-
“pecfc, affords something to the necessities of the survivor. We think “ it should receive a fair if not a liberal construction.”
In Succession of Leppelman, 30th Ann., 468, the court observed, that “rich is a relative term. Property which would make a person, in one condition of life rich, would be inadequate to supply the wants, albeit they are artificial, of one in another condition’ of life.”
In Succession of Derouen, 10 Ann., 675, it was held:
“The intention of the legislator, in that article, is clear, that the “ needy surviving spouse shall not, in any case, take from the succes- “ sion of the wealthy pre-deceased spouse, who has left children, more “ than the share which will be coming to each * * * To give him “more, would be to impoverish his children, * * * contrary to “ the policy of the law, which is, not to disturb the order of inherit- “ anee, but in certain cases to count a surviving spouse as one of the “ children of the deceased spouse.
* * ■*- * -x- * K
“In the application of the law, in relation to the marital portion, “ the means possessed by the needy spouse are always to be taken into “ account.”
In Succession of Justus, 44th Ann., 721, this court held that the right of a survivor left in necessitous circumstances to take the marital fourth is a bounty, or charity, which may be well assimilated to that in cases of necessitous widows or minors who are entitled to claim $1,000 in preference to creditors.
[873]*873That the right conferred by law is one in favor of a surviving consort left in impecunious circumstances, and depends on the condition of the person in whose favor it was granted.
In Succession of Rogge, 50th Ann., 1220, this court had occasion, recently, to state its interpretation of the provision of law in question.
“The principle”, say the court, “upon which the right of the necessi- “ tous surviving spouse to take the marital portion, the reasons, the “ cause, the motive of the law in granting it, is founded upon the con- “ sideration, or policy, that neither of the married persons who have “ lived together in the common enjoyment of wealth and of the posi- “ tion which it gives, shall be suddenly reduced to want, and accord- “ ingly, a part of the estate of the opulent deceased is appropriated to “ relieve the survivor, who, in the absence of it, would be reduced tó “ poverty”.
The sense of the foregoing authorities, when carefully considered with respect to the proven facts in this case, clearly shows the plaintiff without right to recover the marital portion of her husband’s estate.
At the time of his death, he was the owner of property valued at thirteen thousand dollars, approximately; but, at the same moment of time, his wife was entitled to receive and did receive, thereafter, eighteen hundred dollars in cash, on policies of life insurance in her favor.
From the same source, each of the three daughters of the deceased received six hundred dollars, only, and their respective shares of the father’s estate is only three thousand two hundred and fifty dollars.
The deceased and the plaintiff led a quiet, frugal life on a plantation in the country; and prior to their marriage, the plaintiff had lived in his house as a matron, at a salary of tén dollars per month.
On this showing, our opinion is that the surviving wife of the deceased was not left in necessitous circumstances, and she is not entitled to recover the marital portion.
It is, therefore, ordered, adjudged and decreed that the judgment appealed from be anulled and reversed; and it is further ordered’and decreed that the plaintiff’s demands be 'rejected at her cost in both courts.
BlaNchard, J., dissents, holding that the widow should be allowed the marital fourth, from which should be deducted the $1800 insurance money.