In the settlement of the estate of the deceased, H. L. Connor, a controversy has arisen between his widow and his children. It is one of those family disputes with which our judicial annals so painfully abound, and which seem a necessary and unamiable consequence of our peculiar laws on the subject of the conjugal relations and of inheritance. In the perusal of this voluminous record the suggestion constantly recurs to the disinterested mind how much better it would have been if these parties had arranged their conflicting pretensions in a spirit of filial and parental affection. As they have chosen to pursue a different course, we are to apply the rules of law in the distribution of the estate.
Mr. Connm• was a native and resident of Mississippi. Ho lived and died in that State. In 1824 he became affianced to the plaintiff, Susan E. Balcer, a minor, residing in Louisiana, and under the guardianship of her tutor, Alexander Pm'ler, a resident of Louisiana. After completing her education at the North, she was placed on her return to Louisiana in the family and under the care of her sister, Mrs. Ker, a resident of the parish of Concordia, in this State. The consent of her tutor was given in these words:
“I, Alexander Porter, jr., of the city of New Orleans, duly appointed tutor by the Court of Probates in the parish of St. Mary, Attakapas, in the State of Louisiana, to Susan Balcer, minor, daughter of the late Joshua Balcer, deceased, do in my quality aforesaid, by these presents, consent that the rites of matrimony be solemnized between Henry L. Conner, of Adams county, in the State of Mississippi, and the said Susan Balcer; and I sign these presents, and affix my seal thereto, in the eity of New Orleans, this 4th day of May, 1824, in order that the same may serve in time and place.
[l. s.] Alexander Porter, Jr.”
It was intended that the marriage should be solemnized at the house of Mrs. Ker, but in consequence of the overflow of the Mississippi at the time, it was found inconvenient for their Mississippi friends and the Mississippi magistrate, *447Judge 'Winston, to reach Mrs. Ker’s house in Concordia, and the place of solemnization was changed to the house of another sister in Mississippi. Immediately after the marriage in May, 1824, they went to live at Oak Hill, in Adams county, Mississippi, the residence of Mr. Connor's' mother. Here they continued to live until Mr. Connor’s landed estate in that county, owned at the time of his marriage, was increased hy the acquisition of lands there, inherited hy his brother. He erected upon this estate a commodious dwelling, embelished it with an extensive garden and ornamental grounds, and lived, until his death, at this seat, which he called Berkley, in a style of comfort and elegance. The slaves and other personalty of his Mississippi estate amounted at his death to about $61,000, and Berkley was a tract of about 1200 acres.
In 1841 he purchased a valuable plantation in the parish of Concordia, which was kept in successful cultivation until his death, and was then inventoried, with its slaves, etc., at $58,456 75. A very comfortable dwelling-house was built upon this plantation, and occasionally the husband and wife visited the place, and tarried for some time upon such visits, Berkley, however, always remaining their home, and Mississippi their domicil. There is evidence that he occasionally spoke, after his marriage, of an idea of going to Louisiana to live. One witness not only says she had often heard him speak about going to Louisiana to live, but that he contemplated at the time of his marriage a removal to the State of Louisiana. But upon a fair review of all the testimony upon this subject in connection with the surrounding circumstances, and especially the continuous and consistent acts of the parties, which speak more forcibly than casual words, wo are satisfied that there was not in the mind of Connor, at the time of the marriage, or subsequently, a settled purpose to live in Louisiana, much less any ante-nuptial understanding that such should be the base, and it is certain that his vague views as to a change of domicil never even approached a realization. Mississippi must unquestionably be.eonsidered not only the matrimonial domicil, hut the matrimonial domicil contemplated at the time of the marriage.
It further appears that after the marriage,'and after Mrs. Connor had taken up her abode in Mississippi, the husband and wife received from Judge Porter $4452 24, being the amount of her patrimony in her tutor’s hands, which sum the husband converted to his own use. The wife has participated in the distribution of the Mississippi estate, and occupies the Berkley mansion under the assignment of dower, hut with means incompetent to sustain the establishment in its former style, or to live otherwise in the comfort and luxury to which she was habituated before widowhood.
I. The most important inquiry in this cause is whether the claim by the wife of one-half of the Louisiana estate, as widow in community, is well founded.
The proposition is advanced upon the ground that, hy the Code of 1808, which was in force at the time of entering into wedlock, every marriage contracted in the territory of Louisiana superinduced of right, partnership or community of acquets or gains, such being the express provision of article 8 of section 4 of ’ that Code; that although in this case the marriage was actually celebrated in Mississippi, she was a Louisiana ward, and was constructively and de jure married in Louisiana; that it was the ante-nuptial intention of the spouses to make Louisiana their residence, and mere accident, and the post-nuptial purpose of her husband, made Mississippi their actual residence; hut to which act petitioner, then a minor, and without disposing will, could give no assent. These grounds, it is argued, are set forth in the petition and sustained by the evidence.
*448In these views of the law and facts we do not concur.
It is true that an accident changed the mere place of solemnization from Louisiana to Mississippi. But that this change was made against the wish of the tutor does not appear, and cannot reasonably be inferred. It is impossible to infer from the evidence in the cause that the house of Mrs. Ker, in Concordia, was originally selected, or the house of Mrs. Metcalf, in Mississippi, subsequently adopted as the place of marriage, with reference to any question of property or marital right. The choice in both cases seems to have been suggested by mere considerations of convenience and decorum. The language of the tutor’s consent indicates no restrictions to Louisiana as the place of celebration, and does contain matter suggestive of the inference that no such restriction was intended. Under the then existing laws and jurisprudence of the State of Louisiana, this marriage would have been considered a Mississippi marriage, even if an accident had not prevented its solemnization in Louisiana, in Ford's case, decided while the Code of 1808 and the Spanish laws were still in force, the question was whether the slaves of the wife, who was married in Mississippi, passed to her husband by the laws of that State, or remained her paraphernal property by virtue of the law of Louisiana, which, was contemplated at the time as the matrimonial domicil, and within a reasonable time became so actually. Martin J., as the organ of the court, solves the question thus:
“We think that it may safely be laid down as a principle that the matrimonial rights of a wife, who, as in the present case, marries with the intention of an instant removal, for residence in another State, are to be regulated by the laws of her intended domicil, when no marriage contract is made, or one without any provision in this respect.”
The existence of this jurisprudence certainly loses none of its significance as a fact in this cause, when it is considered that Alexander Porter, the tutor, who authorized his ward to marry a gentleman domiciled in Mississippi, was an eminent member of the judiciary of Louisiana, and as such concurred in the opinion in Ford’s case.
As to the ante-nuptial intention of the parties respecting the matrimonial domicil, there is no reasonable ground to say that Louisiana was contemplated. The weight of evidence, as we have already remarked, is entirely opposed to such a conclusion.
We find no fair analogy as to facts between this case and the case of the minor Le Breton; and the doctrine there enunciated clbariy militates against the present plaintiff.
Alexandrine Le Breton, a minor, thirteen years of age, without the consent of her mothor, fled from New Orleans with her lover to Natchez, with the intention, as the Court inferred from the evidence, to be married there and return to New Orleans as soon as it could conveniently be done. They remained a few weeks in a tavern at Natchez, and soon after returned to New Orleans, where they continued to reside until the wife’s death. The husband claimed to have become owner of his wife’s chattels jure mariti under the law of Mississippi; but his pretensions were rejected, and one of the grounds for the conclusion was that although the marriage took place in Mississippi, Louisiana was the contemplated matrimonial domicil; another was that the carrying the minor out of the State, without the consent of the mother, was in frauden, legis, and a marriage contracted under such circumstances in another State did not defeat the action of the law of Louisiana on the wife’s property received by the husband here.
*449The Spanish laws do not enter into the consideration of the case, haring-been abrogated before the acquisition of the Louisiana estate; and the claim of the wife derives no support from the Oode of 1825. It declares that every marriage contracted in this State superinduces, of right, partnership or community of acquets and gains, if there be no stipulation to the contrary. A marriage contracted out of this State, between persons who afterwards come here to live, is also subjected to the community of acquets, with respect to such property as is acquired after their arrival. Articles 2869, 2370. The present marriage was not contracted in this State nor in contemplation of a matrimonial domicil in this State, nor did the parties or either of them come here to live before the acquisition of the Louisiana property.
Under the well settled interpretation of the Oode of 1825, applied to the facts of this case, Mrs. Oonnor was not a partner in community. Succession of Packwood, 4 Rob. 438. Huff v. Bolard, 6 Ann. 437. Succession of Franklin, 7 Ann. 395. We speak now of a case arising before the xict of 1852, by which Act the legislature, dissatisfied with the existing law, extended the community of acquets and gains in favor of non-resident married persons to property in this State thereafter acquired, p. 200.
Lastly, the plaintiff insists she is protected by Section 2, of Article 4th of the Constitution of the United States, which ordains that “ the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” The plaintiff’s position, as defined by the counsel in his written argument, is “ that a Mississippi wife, widow or heir, in regard to real property in Louisiana is entitled by constitutional privilege to the same rights as a Louisiana wife, widow or heir, in like relation to the same property.” Limiting our answer to so much of the proposition, as pertains to the question of community, we are of opinion that the provisions of the Oode of 1808 and 1825 on the subject of community do not conflict with the Constitution of the United States. They say, to all who chose to marry in this State, bo they citizens of this State or of other States, your marriage in this State shall superinduce, of right, a partnership or community of acquets or gains, if you make no stipulation to the contrary, when you make the contract of marriage in this State, the law in your silence implies the partnership as an incident of your contract. So again the law says to all persons married elsewhere, be they citizens of Louisiana or citizens of other States, if you choose, after marriage to come to Louisiana to live, your acquisitions in Louisiana (at least in the absence of your previous marriage agreement to the contrary,) will be deemed as made subject to the community of acquets. In neither case do we discover an unconstitutional discrimination between our own citizens and citizens of other States of the Union.
TI. With the failure of the claim of community, the claim of usufruct of the Louisiana property after the husband’s death also fails.
III. The claim of §6952 24-100; amount of alleged paraphernal funds received by the husband cannot be sustained. The marriage took place in Mississippi, the husband was then domiciled .there, that State became and remained the matrimonial domicil, and there was no clear ante-nuptial nor post-nuptial understanding that the parties should come to Louisiana to reside, the frustration of which might perhaps be regarded as a fraud on the wife.
The law of Mississippi must therefore control the wife’s rights.
*450Under that law her personalty, reduced into possession by the husband, became his jure ma/riti. See Hayden v. Nutt, 4 Ann. 68. Marcenaro v. Butoli, 2 Ann. 980.
IV. The plaintiff claims the marital portion, in case her claims for community and paraphernal rights are disallowed. The doctrine is not disputed that this right to the marital portion in real estate situate in Louisiana results from the marriage, no matter where contracted, and that the wife takes by inheritance. But the claim is opposed on the ground that Mrs. Connor was not left in necessitous circumstances.
The Article 2859 of our Code which confers the right is in these words :
“ 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 a right to take out of the succession of the deceased what is called the marital portion, 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 ora smaller number of children, and if there be more than three children, the surviving, 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 him as a legacy by the husband or wife, who died first.”
In the present case the wife brought no dowry, and her little patrimony was, as we have seen, received by her husband, became his jure ma/riti, and was converted to his own use. We have also seen that she is excluded from the community of acquets, and so far as the evidence informs us, although she had a modest patrimony before marriage, she was, as to any. means of her own, penniless at his death; and her husband having omitted to make provision for her by will, which it seems it was his intention to do on a scale commensurate with his affection and her meritorious conduct, she had nothing for her future support, save what the laws of Mississippi and Louisiana would accord to her. In this view of the case and as to any means of her own, she was unquestionably left at her husband’s death in necessitous circumstances.
Foster v. Ferguson, 1 Ann. 263, was a case analogous in its circumstances, so far as the immediate point before us is involved. The marriage was contracted in Mississippi, and although made with the view of a residence in Louisiana, yet in consequence of the early death of the husband, and his fortune having been acquired before marriage, she seems to have taken nothing as partner in community. Under the laws of Mississippi she had received as dower an usufruct in one half of his real estate, and also in full property one half of the nett personalty, which were not however sufficient for her maintenance. The District Court had awarded the widow one fourth of the estimated value of the deceased estate in Louisiana, deducting the estimated value of her Mississippi dower. The Supreme Court reversed the judgment in this respect, and gave the widow one fourth of the succession of the husband loft in this State 11 independent of the rights which she had acquired in the estate in Mississippi.” It is true this is tho only decision upon the point cited from our reports, and it is also true that the grounds of the conclusion are not fully elaborated. It is a precedent, however, and as such should be followed, even though solitary, unless we are clearly satisfied thatits doctrines are unsound. Of this wo are by no means satisfied ; and on the contrary we think it will bear the test of an analysis upon principles of justice and common sense. If instead of being situate in *451different countries, the whole of Foster's estate had been in Louisiana, it is clear that the marital fourth would have been assigned upon the whole estate. But a part happened to be in Mississippi, and had been subjected to a Mississippi distribution, which assigned to the widow a share which the law of that State deemed equitable and just. By maintaining the marital portion without reduction in the Louisiana estimate, the widow received an equitable share in her husband’s whole estate, and no more. By reducing it the spirit of both statutes would have been violated ; for the spirit of each was that a provision for the widow’s support proportionate to the husband’s fortune and condition in life should bo made out of his estates.
It was however argued on behalf of the heirs that in ascertaining whether Mrs. Oonnor was in necessitous circumstances, the state of her means at a time subsequent to her husband’s death, could be considered, and that by reference to certain deeds of sale made to her about two years after her husband’s death, it will be seen that she made large purchases, for which she paid an important portion in cash, a state of things inconsistent with penury. These purchases she made from her children of their interest in the homestead estate and the slaves which, during her husband’s life time, had been employed upon it. A portion of this homestead estate had been already set apart to her in dower, which included the family dwelling; and from this consideration, as well as in fulfilment of a wish of the husband repeatedly expressed in conversation, but unfortunately for her, not consecrated by a will, that she should pass the remainder of her days in the enjoyment of the estate where they had spent their married life in comfort and luxury, it was natural she should desire to extend her interest in the homestead ; and it may well have been that some of the influential and wealthy friends of her husband and herself, by whom she was surrounded, may have assisted her in raising cash means. But even if these cash means were the result of her industry, thrift or good fortune subsequent to her husband’s death (for it seems clear that she had no fortune of her own when ho died), we apprehend that subsequent prosperity and easy circumstances are not a tost contemplated in our Code. It is true, an authority cited from a Erench commentator seems to counterbalance the doctrine asserted by the children. Merlin in his Repertoire, verbo Quarto do Conjointe Pauvre, puts the question whether in determining the widow’s right, the state of her fortune and the precise time of her husband’s death should be considered. He does not seem to announce his own opinion, but says that Dumoulin and Le-brun make a distinction between the case where the wife’s change of fortune has followed closely on the death-of the husband or has supervened a long time afterwards, and say that in the latter case, things must be loft as they are. The language of our Code seems to point very distinctly to the state of things at the date of the death- — “if either the husband or the wife die rich, leming the survivor in necessitous circumstances.” Moreover the doctrine which looks to the posterior state of things seems out of harmony with the analogies of the Code and a sound legal philosophy. It is not the general policy of the law to leave rights either in abeyance or determination upon future accident. "We prefer the intepretation of Gregorio Lopez in commenting upon a kindred provision of the Spanish law. We refer to the Olh Partida, tit. 13, law T: “Men are sometimes content to marry women who are poor and without a dowry ; it is therefore but just and proper, that since they loved and honored them through life, they should not leave them destitute at their death. ’The ancient *452sages have therefore thought fit to ordain, that if the husband should not leave such wife the moans of living well and decorously, and she should not have possessed such means of her own, (nin ella lo ouiesse de lo suyo,) then she may inherit one fourth of his estate, notwithstanding ho should have children ; but such fourth part ought not to exceed one hundred pounds in gold, however great may be the estate of the deceased. But if such wife should have possessed (ouiesse do lo suyo) the means of her own of living decorously, then she has no demand on the estate of her husband on account of such fourth part.”
Upon this Lopez remarks: Item cum hie chicit nin ella lo ouiesse de lo suyo, intelligitur tempore mortis mariti, quia qualitas adjecta verbo intelligitur secun-dum tempus verbi. Unde licet postea efficiatur dives, non excludetur ab ista quarta et ejus petitione, ut tenet idem decius in diet, authent. praeterca, in fin, reprens se ita con su luisse, et pater ejus consilio 24. In the same note, he justly .states that the spirit of the law is not to exclude the wife if by the labor of her own hands she could earn a subsistence, and that the law looks to the condition in life, its comforts and luxuries, which she had enjoyed during marriage. Ista quarta datur in honorem preetuiti matrimonii, ut conservenlur con-juges in solito status.
Y. The claim for commissions as natural tutrix cannot be disposed of at present, no account of the tutorship having been yet rendered, and moreover, it not appearing what property she actually administered, &c.
VI. She is entitled to be recognized as inheriting one-fourth of the share of her deceased daughter, Anna, in the Louisiana succession.
YII. We do not think the plaintiff has shown any injury sustained by the sale of the property to George B. Mwrshall. There is on the contrary respectable testimony tending to the conclusion that the price of adjudication was enhanced by the private agreement made between the purchaser and a portion of the heirs.
The plea of res judicata is not relied upon in the points and brief of the appellees, and we have not therefore discussed it.
It is therefore decreed that the judgment of the District Court be reversed, and it is further decreed :
I. That the plaintiff’s claim of community and of usufruct as surviving spouse in alleged community, and for paraphernal rights, be rejected.
II. That the plaintiff’s claim for commissions as natural tutrix be reserved.
III. That she be recognized as the heir of her deceased child Anna F. Con-nor, for one fourth of the said child’s share in the Louisiana succession of the said Henry L. Connor, deceased.
IV. That her claim for the marital portion of the Louisiana succession of her deceased husband, Henry L. Connor, to wit the usufruct of one sixth, he and is hereby sustained, the same to be adjusted by future proceedings therein.
V. That the claim to annul the adjudication of the Arcóle plantation, slaves and appurtenances to George B. Marshall, be rejected.
VI. That the price of sale of the said Arcóle Plantation, slaves and appurtenances, at which it was adjudicated to said Marshall $135,050, be considered as representing the estate in Louisiana as left by the deceased, subject to a reasonable deduction for the value of the slaves added thereto and improvements made since the death of the said Henry L. Connor, and existing at the date of adjudication to said George B. Marshall.
Notk. — rThis case lias been taken to the Supreme Court of the United States by writ of error.YII. That this cause he remanded for the purpose of effecting a final settlement of accounts, a partition and further proceedings according' to law, the costs of the appeal to be paid by the defendants.
Re-hearing refused.