Succession of Hunter

13 La. Ann. 257

• Court: Supreme Court of Louisiana
• Decided: April 15, 1858
• Status: Published

Opinion

Oole, J.

James Hunter died, leaving no descendants; many years previous to liis marriage, lie executed a will, which constituted Peter Conrey, Jr., his testamentary executor and universal legatee. The surviving widow of Hunter has appealed from the judgment, and Conrey has joined her in the appeal.

1. We are of opinion that the husband cannot, by testamentary dispositions, defeat the effect of the Act of 1852, “ to provide a homestead for the widow and children of deceased persons.” Session Acts, 1852, p. 171. This law entitles the widow or the legal representatives of the children, to demand and receive from the succession of their deceased father or husband, a sum, which added to the amount of property owned by them, or either of them, in their own right, will make up the sum of one thousand dollars, and which said amount shall be paid, in preference to all other debts, except those for the vendor’s privilege and expenses incurred in selling the property.

The claim of the widow is then a privileged debt, and the testamentary heir can only demand the balance of the estate, after all debts are paid.

2. As there are no descendants of the husband, the widow is not obliged to give any security, and the amount due her under the Homestead Act, belongs to her in full property. The first section of the Act authorizes the widow or legal representatives of the children to receive from the succession of their deceased father or husband, a certain sum; the second section limits the first section so far as the widow is concerned, and gives her the usufruct of said sum during her widowhood, afterwards to vest in and belong to the children or other descendants of said deceased; when, then, there are'no children or other descendants, the cause of the limitation does not exist, and the said sum must vest in her in full property by virtue of the first section.

It was settled in the case of Succession of Antoine Numa Tassin, 12 An. 885, that the widow as usufructuary, is bound to give security, but in that case there were children of the deceased husband in existence, and the question did not arise, whether when there were no children, the widow was obliged to give security.

3. She is entitled to a decree in her favor for $193 V3f, one-half of the community ; and also for $540 40i, balance of the succession, less costs that may be due by the estate, by virtue of the Homestead Act, in full property and without giving any security. C. C. Arts. 552, 551, 532, 553 and 17.

It is, therefore, ordered, adjudged and decreed, that the judgment be so amended as to give to Eliza Allen, widow of James Hunter, deceased, in her own right and full property, one hundred and ninety-three dollars and seventy-three and two-thirds cents, being one-half of the community; and also in her own right and full property, five hundred and forty dollars and forty and one-third cents less the costs t0 which the estate may be liable, without giving any security; and that any part of the judgment which is opposed to this amendment, be avoided and reversed, and that in all other respects the judgment be affirmed; and that the costs of this appeal be paid by the estate.