dissenting. This ease is presented on an appeal, taken by the defendants from a judgment condemning them to pay to the plaintiff one-ninth part of the net proceeds of the estate of Benjamin L. Saunders, in usufruct as a marital portion. In her petition the plaintiff alleges that she is the surviving wife of Benjamin L. Saunders, who died rich, leaving her, his widow, in necessitous circumstances.
. Wherefore she claims the benefit of the provisions of Article 2359 of the Civil Code, allowing her the usufruct of a share of the estate equal to a child’s portion.
She further alleges, in a supplemental petition, that there existed a community interest of acquests and gains between her and her deceased husband, of which she prays the court to grant a decree for a liquidation and settlement. Upon the claim for a recognition and liquidation of the plaintiff’s community rights, there was a judgment for the defendants, which we are not called upon to disturb.
As respects the demand for the usufruct, as before stated, the facts of the case, as disclosed by the evidence, appear to be substantially as follows: The plaintiff and the deceased, after living together as man and wife for about three years, were separated by a judgment of separation from bed and board, obtained by the plaintiff against her husband on the 22d May, 1852, the suit having been previously instituted in February of the same year. About the middle of October, 1862, Saunders died leaving a considerable estate, and the question to be determined is whether, under the circumstances, as disclosed by the evidence, the plaintiff is entitled to the benefit of the provisions of Article 2359 of the Civil Code, allowing the widow in necessitous circumstances the marital portion.
It is insisted that the wife, separated in bed and board, is yet the wife, and continues to be such until a final divorce, and that, where a judgment of separation has been rendered in her favor, (which establishes a presumption that she was not in fault,) the express provisions of our Code secure to her all the advantages or donations the other party may have conferred by the marriage contract. See Civil Code, Art 152.
*662The misapprehension of the true meaning and spirit of this Article of the Code arises probably in part from its being placed under a title in the Code to which it does not belong. The Article, or at least that portion of it which is applicable to the case at bar, is as follows: “Article 2359. 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,” &c.
Now this Article is found under the title which treats of marriage contracts. It is evident that it has no proper connection with that title. It is a legislative provision, conferring and regulating a right to a portion of the estate of a deceased person, precisely as other legislative provisions confer and regulate the rights of parents, children, brothers, and other relatives of deceased persons upon their estates. It is therefore a law of inheritance, and has nothing to do with marriage contracts. In a certain event it makes the surviving spouse not only an heir but a forced heir, and, with certain qualifications, puts him or her (as the case may be) on a footing with the children or other heirs of the deceased.
Every reader of the Oode is aware that many Articles are found under titles where a proper classification would never have placed them ; but this fact has never been held to justify a construction at variance with their meaning and character. The surviving spouse, who acquires any rights under the Article in question, takes, therefore, by inheritance as other heirs. See 3 N. S. p. 3. See also the opinion of Chief Justice Slidell in the case of Susan Conner v. the Heirs of Conner, 10th Annual, in which the right of the wife to the marital fourth is expressly designated as one of inheritance.
This view of the case is illustrated by a reference to the laws from which our legislation on the subject is derived.
The marital portion was first allowed by the 53d and 117th novels of Justinian, but is more directly derived, as we find it in a modified form incorporated in our laws, from the legislation of Spain. The law 7th of the 6th Parti-das, title 13, from which the Article 2359 of our Oode is directly derived, is found in that work under its appropriate head of Inheritance, and it provides that “if the husband should not leave the wife the means of living independently, and she should not possess them herself, then she may inherit one-fourth of the estate,” &c. This law was established, says Gregorio Lopez, “ in honorum prseteriti matrimonii ut conserventur coryuges in solito statu.”
The humane and salutary provisions of this Article were intended to provide against the consequences of a sudden change in the condition in life of a surviving spouse incident to the death of the other, “ to prevent those who have lived together, in the enjoyment of wealth and the position which it gives, from being suddenly reduced to want.” 3 An. 105.
The law provides that a right which is incidental to the marriage state, (viz: that of mutual protection and support,) should be extended beyond its termination by so regulating the law of inheritance as to appropriate a portion of the estate of a deceased spouse to the support of the survivor. If this view be correct in principle, it presupposes that, at the time of the death of the deceased spouse, the marital relation between the two was undisturbed ; but no such doctrine is applicable to a qpge where there has been a separation from *663bed and board. In such case the relation of the parties, in consideration of which the marital portion is allowed, have ceased to exist before death. If the husband is not bound to support the wife, separated from bed and board, before his death, it is difficult to conceive upon what principle of equity that event could give her a claim to stand on the same though an unequal footing with the forceed heirs of his estate.
A judgment of separation from bed and board severs the personal relations of the parties, and with it the mutual obligations which are the considerations of the contract. After that event, as both parties are absolved from the duties so they are prohibited from claiming the rights incident to a relation which they have renounced.
It is proper, therefore, that the wife, separated from bed and board, should not inherit from the estate of the deceased husband, and while the law, in a spirit of humanity and wisdom, has, “in honorem prseteriti matrimonii,” provided for the support of her who is truly a widow, it has at the same time, in regard to any rights of inheritance, left the spouses who are separated in bed and board in the position which they occupy in the actual relations of life— that of strangers to each' other.
The 918th Article of the Civil Code is as follows: “If a married man has left no lawful descendents, nor any collateral relations but a surviving wife, not separated in bed and board from him, the wife shall inherit from him, to the exclusion of any natural child or children duly acknowledged.”
If the construction of Art 2359 which has been contended for by plaintiff’s counsel were correct, one Article of the Code would exclude the wife separated from bed and board altogether from a participation in the inheritance of her husband’s estate, and another would place her on the footing of a forced heir to the partial exclusion of his blood relations. No such an anomaly in legislation was intended. The Articles are perfectly consistent with each other if construed with reference to the ordinary acceptation of language as applicable to the ordinary relations of life. Thus, when parents, children or relations are spoken of, we mean legitimate parents, children or relations, and legislation applicable to such, in general terms, is never extended by construction to bastard or illegitimate relations; so general legislation, having reference to the rights of married persons, may be supposed to refer to cases where the marital relation has been undisturbed, not where a partial divorce has been judicially decreed between the parties.
The “ advantages” referred to in Article 152, as being “ retained ” by the party in whose favor a decree of separation shall have been granted, have reference evidently to such as have been conferred by the marriage contract, or afterwards by one of the parties, but can have no application to a legal provision regulating the order of inheritance.
In my opinion the judgment appealed from should be reversed.