Succession of Lee

9 La. Ann. 398

• Court: Supreme Court of Louisiana
• Decided: June 15, 1854
• Status: Published

Opinions

Slidell, 0. J.

Before the Statute of 1844, the share of the deceased partner in community passed to his or her lawful heirs. The right of usufruct in favor of the surviving partner as to that share is derived solely from the Statute. Being derived solely from that Statute, it can only be claimed in the cases designated in that Statute. The case where the deceased husband or wife leaves an ascendant is not such a case.

We do not consider the fact that the words “ascendants” (being the plural) as used, affects the question. We think the existence of one ascendant has the same effect as to the surviving widow’s pretensions to the usufruct, as if both the father and mother of Lee had survived him.

It is said the 2d section gives the usufruct to the surviving husband or wife in preferance even to tho children of the deceased ; and hence, by an argument a fortiori, is deduced an intention to prefer the surviving husband or wife to collateral relations. But the motive of the Legislature in giving the usufruct, where there were children of the marriage, may well have been to keep the family estate together, and provide a common home during the lifetime of the surviving father or mother, who would naturally use the estate with an eye to the welfare of tho children, at all events until a second marriage; upon which event the lawgiver, with a jealous foresight for the children’s welfare, arrests the usufruct.

I am not able to say the District Judge, to whose opinion I refer for further elucidation of the subject, came to an erroneous conclusion, and am of opinion that the judgment should be affirmed.

Judgment affirmed with costs.