(110 So. 326)

No. 27799.

#### VEILLON v. LAFLEUR’S ESTATE. In re VEILLON.

(May 3, 1926.

On Rehearing, Oct. 5, 1926. Second Rehearing Refused Nov. 2, 1926.)

*(Syllabus by Editorial Staff.)*

On Rehearing.

I. Executors and administrators <©=>194(5!/y") —Succession.

In petition by widow for marital portion, under Civ. Code, art. 3252, amended by Act No. 17 of 1917 (Ex. Sess.) and act -No. 242, of *2151918, questions presented are -whether she was wife of deceased at time of his death, and whether she was left in necessitous circumstances, not possessed in her own right of property amounting to $1,000.

2. Statutes &wkey;>225.

Civ. Code, art. 2382, granting marital portion to surviving spouse in necessitous circumstances, and article 3252, granting preferential claim of $1,000 in favor of widow and minor heirs in such circumstances, are in pari materia.

3. Executors and administrators &wkey;>188 — Succession; widow in necessitous circumstances may avail herself of preferential right to receive $1,000 from husband’s estate whether she has been faithful or unfaithful (Civ. Code arts. 2382, 3252).

Civ. Code, arts. 2382, 3252, attach no conditions to necessitous wife seeking to avail herself of preferential right to $1,000 out of husband’s estate, and make no distinction between a faithful and unfaithful wife, in absence of legal action by husband severing matrimonial tie.

Overton and St. Paul, JJ., dissent.

Certiorari to Court of Appeal, First Circuit.

Petition by Mrs. Bridget Veillon for widow’s allowance against the Estate of Preval Lafleur. - Judgment for plaintiff: in the district court was reversed by the Court of Appeal (4 La. App. 14), and the Supreme Court granted application for writ of review or certiorari.

Reversed, and judgment of district court reinstated..

R. Lee Garland, of Opelousas, for plaintiff.

J. Hugo Dore, of Ville Platte, for defendant.

ST. PAUL, J.

The applicant here is the widow of the de eujus, and she claims the so-called “widow’s homestead,” being the $1,000 allowed to a widow left in necessitous circumstances out of the estate of her deceased husband, by the terms of article 3252 of the Revised Civil Code of 1870, as amended by Act 17 of 1917, p. 25 (Ex. Sess.) and Act 242 of 1918, p: 433.

Her claim was allowed by the district court, but was rejected by the Court of Appeal, and this court granted her application for review of the judgment of the Court of Appeal *“as a matter of right,”*under the provisions of section 11 of article 7 of the Constitution of 1921, p. 41, in view of her allegation and contention that the decision of the Court of Appeal is “in direct conflict with the jurisprudence of this state as established by this honorable court in Coreil’s Estate, 145 La. 788, 83 So. 13, and Normand v. Thompson, 1 La. App. 1221. See Advance. Sheets, No. 4, 2 La. App. 413.”

In Re Coreil’s Estate, supra, this court held that:

> “The fact that a widow, claiming $1,000 under Civ. Code, art. 3252, had left the matrimonial domicile in this state three years before the death "of her husband, and had lived apart from him during that time in another state, does not, of itself, deprive her of the right accorded by that article.” Syllabus No. 3.

And the facts of that case, as summed up by the court, were as follows: '

> “ * * * All tha.t this record discloses is that the opponent [widow] left the matrimonial domicile on account of her health and by' the advice of her physician, and that for about three years, prior to tier husband’s death, she had remained away, but, * * * depending upon him for support; * * * and, for aught that the evidence shows, was entirely blameless -with respect to their living apart from each other.”

In Normand v. Thompson, supra, the Court of Appeal, Second Circuit, found the facts to be as follows:

> “The evidence shows that the separation was not the result of any misconduct on the part of the wife, but rather it was the husband's conduct that caused her to leave his home and that at the time of his death in New Orleans he was on a mission to his wife to make amends for having driven her from their home and to seek to induce her to return thereto.”

II.

In the case under consideration the Court of Appeal, First Circuit,'found as the facts *217in the ease (and their finding accords with the evidence) that:

> “ * * ***There is little doubt that she (the wife) abandoned her husband voluntarily, deliberately and without justification, remained away from him during the four last years of his life, absolutely ignoring and forgetting him, until the occasion presented itself when she could make claim to part of his estate; * * * that plaintiff (the wife) left her husband because of trivial differences and petty quarrels that arise frequently between husband and wife [even] in the best regulated households; * * * [and] that' no grounds are shown in *the*record *to*justify plaintiff in her conduct.”

III.

Upon this finding of facts the Court of Appeal then proceeded thus:

> “The vexata quaestio in the case is whether a court of justice, moved by sympathy and in a spirit of benevolence, should place the stamp of approval upon the conduct of this unfortunate woman [aged, penniless, with failing memory and- eyesight impaired, ‘truly an object of pity’], by acceding to her request, or coldly track the law as interpreted in the jurisprudence and refuse the same. It is [however] truly said that the province of a court of justice is ‘jus dicere, non jus dare.’

> “It was held in Succession of Justus, 44 La. Ann. 721, 725, 11 So. 95, involving a claim for the marital fourth under article 2382, R. C. C., and in Richard v. Lazard, 108 La. 542, 544, 32 So. 559, wherein there was a demand for the $1,000 “homestead” allowed by article 3252, R. C. C., that these laws are in pari materia and controlled by the same rules of interpretation.

> “In the latter case, a wife who had abandoned her husband for several years and had been guilty of gross misconduct towards him, was refused the benefit of the widow’s [$1,000] homestead. In Succession of Rogge, 50 La. Ann. 1220, 1228, 1229, 23 So. 933, the surviving husband had left the wife without cause or reason and had been parted from her for eight years when she died-. His demand for the marital fourth was refused in an elaborate opinion by Mr. Justice Blanchard.

> “The facts as they appear in the present record are very similar to those in Succession of Rogge, and the reasons for judgment as therein stated apply with equal force in the present case. The *leaving*was not caused by the husband’s death, as contemplated in the statute [R. C. C. art. 3252, and R. C. C. art. 2382], but it was the result of plaintiff’s own deliberate and unjustifiable act.”

IV.

From the foregoing our conclusion is that the judgment of the Court of Appeal herein is *not*in conflict with Coreil’s Estate, or with Normand v. Thompson, both supra, but *is*in accord with *the*jurisprudence as established in Succession of Rogge and Richard v. Lazard, both supra, and that said judgment is correct.

Decree.

The judgment of the Court of Appeal is therefore affirmed.

LAND and THOMPSON, JJ., dissent.

O’NIBLL, C. J.

(dissenting). It is conceded, in the opinion of the Court of Appeal, and in the majority opinion of this court, that article 2382 of the Civil Code, allowing a surviving husband or wife in necessitous circumstances a fourth of the estate of the deceased spouse if the latter has died rich, and article 3252 of the Code (as amended by Act 17 of 1917p and Act 242 of 1918), allowing the widow or- minor children in necessitous circumstances $1,000 of the estate of the deceased husband or father, are “laws in pari materia and controlled by the same rules of interpretation.”

In the Succession of Guillon, 150 La. 587, 91 So. 53, we ruled 'that article 2382 was plain and free from ambiguity, and that the court was therefore forbidden, by article 13 of the Code, to disregard the letter of the law to pursue its spirit. Our ruling was that the courts had no authority to impose upon the surviving spouse any condition not required by the letter of the law to entitle him or her to the marital fourth of the estate of the deceased spouSe. The case was first decided the other way, on the 15th of June, 1921, but a rehearing was granted, and the court then reversed its opinion and decree, on the 27th of February, 1922. The jurisprudence *219on both sides 6f the question — the decisions maintaining a liberal and those maintaining a literal interpretation — were reviewed thoroughly, and the decisions maintaining the liberal interpretation were overruled and those maintaining the literal interpretation were affirmed. In the opinion on rehearing we said:

> “The sole and only objection raised against the right of the husband in this ease to claim under the law the marital fourth is that the marriage was too recent, and therefore that the husband and wife did not live together in the common enjoyment of the wealth of the rich spouse for the necessary period required by law. There are some decisions to this effect. Succession of Fortier, 3 La. Ann. 104; Dunbar v. Heirs of Dunbar, 5 La. Ann. 159; Succession of Rogge, 50 La. Ann. 1228, 23 So. 933; Succession of Kunemann, 115 La. 604, 39 So. 702.

> “However, a complete answer to this contention is that no such condition is attached by article 2382 of the Civil Code to the right of a necessitous husband or wife to claim the marital fourth.

> “The letter of this article of the Code is plain and free from ambiguity, and cannot be disregarded under the pretext of pursuing its spirit. C. C. art. 13.

> “We prefer, therefore, to follow the line of decisions of this court, which hold that the article in question does not limit its operations to those whose married life should have lasted a specified time. Suecfession of Marc, 29 La. Ann. 413; Sabalot v. Populus, 31 La. Ann. 855; Brannin v. Womble, 32 La. Ann. 810; Richard v. Lazard, 108 La. 543, 32 So. 559; Succession of Pelloat, 127 La. 878, 54 So. 132.”

The doctrine of the Succession of Guillon was affirmed in the Succession of Hagan, 150 La. 934, 91 So. 303, decided on the 13th of March, 1922, the syllabus of which reads.

> “Though a husband attempted to sustain a forged will of his wife in his favor, where he was left in necessitous circumstances by wife, who died comparatively rich, within the meaning of Civ. Code, art. 2382, he was entitled to one-fourth of his wife’s estate in pursuance of the statute.”

In the body of the opinion, it was said:

> “We think that the record leaves no doubt but that the defendant was left in necessitous circumstances, and that his wife died comparatively rich, within the meaning of article 2382 of the Civil Code; and while the effect of our finding in this case is to say that he attempted to sustain a forged wijl of his wife, * * * the law has not made this a bar to his right to recover the marital fourth, and courts cannot legislate, however strong the appeal may be on moral grounds.”

If we 'adhere to the statement in the majority opinion in this case, that articles 2382 and 3252 of the Code are “laws in pari materia and controlled by the same rules of interpretation,” it will be impossible to reconcile the ruling in this case, from which I dissent, with the rulings in the two late cases, which I have cited and approve.

The last paragraph of article 3252 of the Code, as amended, is so plain as to leave no room for interpretation, viz.:

> “Whenever the widow or minor children of a deceased person shall be left in necessitous circumstances, and not possess in their own rights property to the amount of one thousand dollars, the widow or the legal representatives of the children shall be entitled to demand and receive from the succession of the deceased husband or father, 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 amount shall be paid in preference to all other debts, except those secured by the vendor’s pi’ivilege on both movables and immovables, conventional mortgages, and expenses incurred in selling the property. The surviving widow shall have and enjoy the usufruct of the amount so received from her deceased husband’s succession, during her widowhood, which amount shall afterwards vest in and belong to the children or other descendants of the deceased husband.”

We have no authority to rewrite or revise this statute, so as to penalize the widow for having lived apart from her husband during the last few years of his life, by depriving her of the $1,000 which the statute declares she is entitled to.

I respectfully dissent from the majority opinion and decree.

*221On Rehearing.

ROGERS, J.

[1] Under the previsions of Civ. Code, art. -3252 (as amended .and reenacted by Act 242 of 1918), the two questions arising in this case are:

First, was plaintiff the wife of Preval Lafleur at the time of his death?

Second, did he die leaving her in necessitous circumstances, not possessed in her own right of property to the amount of $1,000?

The record answers these questions in the affirmative.

[2] Civ. Code, art. 2382, granting the marital portion to the surviving spouse in necessitous circumstances, and Civ. Code, art. 3252, creating a preferential claim of $1,000 in favor of the widow and minor heirs in necessitous circumstances, are laws in pari materia, and there is a line of jurisprudence to the effect that the wife contemplated by the codal articles is a wife in fact and not merely a wife in name. Armstrong v. Steeber, 3 La. Ann. 713; Pickens v. Gillam, 43 La. Ann. 350, 8 So. 928; Succession of Rogge, 50 La. Ann. 1220, 23 So. 933; Richard v. Lazard, 108 La. 543, 32 So. 559. Per contra, there is another line of cases rejecting the doctrine of those decisions, and holding that under the plain provisions of the Code no condition whatever is attached to the right of the .necessitous husband or wife to claim the marital portion or of the necessitous wife to claim the so-called widow’s homestead. Succession of Marc, 29 La. Ann. 413; Sabalot v. Populus, 31 La. Ann. 855; Succession of Pelloat, 127 La. 878, 54 So. 132; In re Coreil’s Estate, 145 La. 788, 83 So. 13; Succession of Guillon, 150 La. 587, 91 So. 53; Succession of Hagan, 150 La. 934, 91 So. 303.

In the Coreil'Case, supra, the court maintained the right of the surviving wife to the widow’s homestead under Giv. Code, art. 3252, notwithstanding she had left the matrimonial domicile three years before her husband’s death and had lived apart from him during that time in another state.

In the Succession of Hagan, supra, the surviving husband,' who had attempted to sustain a forged will of his wife, was held to be entitled to the marital portion as provided by the Code.

In the Succession of Guillon, Supra, the jurisprudence on the subject was reviewed, and the court announced that it would follow, as the better rule, those decisions in which the statute was literally construed rather than those decisions in which it had received a liberal interpretation.

[3] Our own conclusion is that the law invoked by the plaintiff is clear and explicit. It attaches no qualifications and imposes no conditions upon the necessitous wife who seeks to avail herself of its beneficial provisions. It makes no distinction between the faithful wife and the unfaithful wife. The husband, who is the sole judge of his feelings and of his honor, is the one to do this by taking appropriate legal action to sever the matrimonial tie if he is dissatisfied therewith. If he does not choose to take such action during his lifetime, no one, after he is dead, ought to be permitted to question the status of his wife and to contest her preferential right to receive $1,000 out of her husband’s estate.

For the reasons assigned, the judgment of the Court of Appeal is set aside, and the judgment of the district court is reinstated and affirmed at defendant’s cost. Defendant’s right to apply for a rehearing is reserved.

OVERTON, L, dissents, adhering to original opinion handed down herein.

ST. PAUL, J., adheres to the original opinion.