O'Gara v. Succession of Riddell

70 La. Ann. 504

• Court: Supreme Court of Louisiana
• Decided: November 15, 1867
• Docket: No. 1041
• Status: Published

Opinion

Howell, J.

This is a suit for alimony on behalf of an adulterous bastard, in which the only question presented is the amount which should be allowed—the right to alimony being admitted.

After hearing evidence, the District Judge gave judgment, fixing the alimony at $40 per month, to be paid to plaintiff as tutrix of her child, until the further order of the Court; from which the representatives of the deceased have appealed. They contend that by law,, an adulterous bastard is entitled to mere alimony, and that a monthly allowance of $25 per month, as fixed by a written agreement between the deceased and plaintiff, is sufficient and liberal, considering the condition of the parties respectively.

It is shown that the plaintiff is a seamstress,' and very needy, and her child young and delicate; that the deceased left a widow and eight legitimate children, and an estate in this city worth over $130,000, and that about a month or two before his death, in October, 1865, he entered into a written agreement with plaintiff, who then had two children, aged, respectively, twenty-four and nine months, to pay twenty-five dollars per month for each, payable quarterly in advance, until they obtained the age of twenty-one years.

One witness says, that considering the condition in life of the defendant, fifty dollars per month would not be too much.

Another, who is the sister of the widow, says that twenty-five dollars a month is quite sufficient, and that it does not cost her fifty dollars per month to support her own three children.

By alimony is meant what is necessary for the nourishment, lodging and support of the person claiming it, and in the case of a minor, it includes education. It is to be granted in proportion to tbe wants of tbe person requiring it, and the oircumstances of those who are to pay it. C. 0., Arts. 246, 247.

. We think that the weight of evidence and the considerations of the law make the smaller amount the proper sum to be allowed. If the sister of the widow can support three children on fifty dollars per month, certainly this child can be supported on the monthly allowance of twenty-five dollars. Should a larger sum become necessary, it will be within the power of the parties and the province of the probate Court to grant it.

It is therefore ordered, that the judgment be so amended as to reduce the monthly alimony from forty to twenty-five dollars, and as thus amended it be affirmed, costs of appeal to be paid by plaintiff.