Richard v. Lazard

• Decision Date: 01 January 1901
• Docket Number: 14,315
• Court: Louisiana Supreme Court
• Parties: LAURE RICHARD v. JOSEPH LAZARD ET AL. MARY LAZARD, THIRD OPPONENT

32 So. 559

108 La. 540

LAURE RICHARD v. JOSEPH LAZARD ET AL. MARY LAZARD, THIRD OPPONENT

No. 14,315

Supreme Court of Louisiana

January 1, 1901

IN RE Laure Richard, Applying for Certiorari, or Writ of Review, to the Court of Appeal, Fifth Circuit, State of Louisiana.

Edward N. Pugh and Walter Lemonn, for Applicant.

R McCulloch, for Third Opponent, Respondent.

OPINION

NICHOLLS C.J.

The plaintiff, Laure Richard, as holder and owner of a promissory note executed by Joseph Lazard and Mary Lazard his wife, payable to their own order and by them endorsed and secured by special mortgage on certain property in the town of Donaldsonville, caused executory process to issue upon the note, praying that the property mortgaged be seized and sold after legal notice to the parties.

Joseph Lazard, the maker of the note, was at that time dead. There were no children issue of his marriage with Mary Lazard. The parties with whom the proceedings were contradictorily carried on by the plaintiff, were the heirs of Joseph Lazard and Mary Lazard, the widow.

The latter filed a petition of third opposition in which, as widow of Joseph Lazard, she averred that her husband had recently died, leaving her in necessitous circumstances, and not possessed in her own right of property to the amount of one thousand dollars, that in fact she had no property whatever; that she was entitled therefore to demand and receive from his succession the sum of one thousand dollars; that as surviving widow she had a lien and privilege on all the property of the deceased, which outranked all and every other privilege except the vendor's privilege, if any, and expenses incurred in settling the property; that the privilege held by her primed the mortgage enforced by the plaintiff; that the property mortgaged was acquired during her marriage with the deceased and was his only property. She prayed that her privilege, with its rank, be recognized and she be paid by preference.

The seizing creditor answered the opposition, pleading first the general issue; further answering she especially denied that third opponent was such a widow as was contemplated by law or that she was left by Joseph Lazard, deceased, in necessitous circumstances, she having been separated from him several years prior to his death.

Plaintiff, in executory proceedings, caused interrogatories to be propounded to Mrs. Fred. Becker, under commission, which disclosed upon their face that the claim set up in the third opposition would be opposed upon the ground that third opponent had left her husband and lived in open concubinage and adultery with another man. The interrogatories were crossed under reservation of objections that they were inadmissible and irrelevant, vague and leading. The testimony taken under them was admitted on the trial of the case over defendant's objection, and she reserved a bill of exceptions.

The District Court rejected the third opposition and opponent appealed to the Court of Appeals. That court reversed the judgment appealed from and sustained the third opposition. After an unsuccessful attempt to obtain a rehearing, the cause has been brought up for review to this court, under a writ of certiorari and writ of review.

The testimony adduced established the fact that third opponent refused to return to her husband after leaving him, and lived in open concubinage with another man. We think the testimony was relevant and admissible. The pleadings did not expressly charge adultery, but the interrogatories propounded, which were crossed by defendant, disclosed fully the nature of the defense which would be set up against the third opponent's pretensions. she was not taken by surprise.

The claim to a privilege is based upon the last clause of Article 3252 of the Civil Code, which declares that whenever the widow or minor children of a deceased person shall be left in necessitous circumstances, and do not possess in their own right 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 that 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 for the vendor's privilege and expenses incurred in settling the property.

The fact that the opponent is without means is conceded.

It is contended before us that the abandonment by a wife of her husband, and her living in concubinage and adultery with another man, are not grounds upon which courts are authorized to deny to her the benefits of the law as embodied in Article 3252 of the Code; that the law is clear and free from ambiguity and the letter is not to be disregarded under the pretext of following the spirit; that opponent is unquestionably the "widow" of the deceased as its signification is "a woman who has lost her husband by death," that the terms of the law are general and absolute and the courts are not warranted in placing a limitation upon them or affixing conditions when the law-makers have not affixed them; that the law is plain and does not admit of construction. As supporting his position, counsel refer us to (Succession of Liddell, 22 Ann. 9; Gee vs. Thompson, 11 Ann. 657; Succession of Marc, 29 Ann. 413, and Sabelot vs. Populus, 31 Ann. 855.)

Plaintiff, on the other hand, calls our attention to Article 2382 of the Code and the decisions of this court under the same. The article reads: "When the wife has not brought any dowry, or when what she has brought as a dowry is inconsiderable with respect to the condition of the husband, if either the husband or the wife die rich, leaving the survivor in necessitous circumstances, the latter has the right to take out of the succession of the deceased what is called the marital fourth; that is the fourth of the succession in full property, if there be no children, and the same portion in usufruct only when there are but three or a greater number of children, and if there be more than three children the survivor, whether husband or wife, shall receive only a child's share in usufruct, and he is bound to include in this portion what has been left to him as a legacy by the husband or wife who died first."

In Armstrong vs. Steeber, 3 Ann. 713, a wife who had abandoned her husband for several years before his death to live in concubinage with another, claimed the marital fourth. This court said: "The marital fourth was first allowed by the 23rd and 117th Novels of Justinian, and forms the subject of law; 7th, Title 13th of the 6th Partidas. It was established, says Gregorio Lopez in honorem praeteriti matrimonii and in order that the widow might bene et honeste vivere."

That the case before it did not come within the reason and spirit of the law, nor did it think the letter of it more favorable to plaintiff's pretentions. She had left her husband several years before his death to abandon herself to the life of profligacy congenial to her. She did not go near him in his last illness and suffered him to die uncared for and alone. Her situation was no more affected by his death than that of other abandoned women in the city. He did not, therefore, leave her in necessitous circumstances within the meaning of the Article of the Code on which she relies and has no claim upon his succession.

In Pickens vs. Gillam, 43 Ann. 350, this court would not permit a husband to claim the marital fourth who, in less than two years after his marriage, had separated from his wife and lived apart from her, who had not been shown to have made the least attempt at reconciliation or had made any enquiries about her during seventeen years, who was not with her in her last illness, nor at her funeral. The court said they were strangers to each other and it was as if they had not been married; that after those many years of unfriendly separation, the deceased did not leave him in necessitous circumstances; that the marital fourth, under the Roman law, was not allowed when the spouse claiming it had been wanting in interest, feeling or attachment. That the principle in the jurisprudence of Louisiana prevailed.

The court held there was a broad distinction between a spouse who was at fault and one who was not.

In Succession of Justus, 44 Ann. 724, this court, referring to the marital fourth, declared that it was provided "in order that the surviving spouse might not, after a life of ease and comfort, be suddenly thrown into abject poverty," that the text read: "Quater datur in honorem preterite matrimonii," the fourth was given in honor of the past marriage that the survivor be retained in the previous accustomed rank and condition, it was a gift it was not a donation by the deceased, but one by the sovereigns acting in the place of the unwilling, forgetful, or ignorant defunct spouse; that it might be assimulated to the charity or bounty extended or conferred on the necessitous widow or minor heirs by the act of 1852, now Article 3252 of the Civil Code, with this difference; that the marital fourth is taken from a solvent succession or the heirs, while the $ 1000 are allowed in insolvent successions in preference to creditors, both are laws in derogation of common right. Referring to the case before it, the court in rejecting the claim for the marital fourth, said that to admit it "would not be in furtherance of the humane objects of the law-giver, but doing violence to the spirit and letter of the provision," adding "Scire legis non est...