Succession of Tugwell

The opinion of the court was delivered by Breaux, J.

The administrator presented a provisional account to be homologated.

The assets of the succession .to be distributed amount to $2285.02.

InM889 Mrs. M. E. Tugwell, wife of Joseph L. Tugwell, brought' suit against the administrator to recover $1000 from decedent’s estate as a widow in necessitous circumstances. She obtained judgment for the amount. Before realizing anything on the amount decreed to be due, she died, leaving no minor heirs.

Mrs. Josephine Tugwell and Mrs. Mary Russell, daughters of Mrs. M. E. Tugwell by a previous marriage, opposed the homologation of the account and the payments the administrator applied to be authorized to make.

There were no children b'orn of the marriage of Joseph L. Tugwell and Mrs. M. E. Tugwell.

No minors claim the bounty under the Act of 1852. The contest lies between the administrator representing the succession and the heirs of the widow, issue of a former marriage.

In support of their opposition, they contend that they are the only heirs of the decedent; that she was a judgment creditor for $1000, which descends to them.

That the judgment recognizing the widow’s right has the effect of res adjudieata, and that the administrator should be ordered to pay it in preference to all other claims.

Opponent’s claim was rejected by the district court and they have appealed.

*882 The law upon which opponents base their claims does not include the major heirs of the deceased widow, for it provides that the widow or minor heirs of a deceased person left in necessitous circumstances shall be entitled to demand and receive from the succession of the deceased husband and father a sum which, added to the amount of property owned by them, will make up the sum of §1000.

The opponents have no right to this portion.

In 30 An. 669 the facts were that the husband left a widow in necessitous circumstances and four children, all of age.

The widow died a short time after her husband.

The administrator declined to carry the claim of these heirs on his account.

The court, in maintaining the administrator’s account, held that “the children meant throughout the Act are those descriptively mentioned in the first clause as the ‘ minor children ’ of a deceased person ” for whose benefit alone the bounty provided by the Act was intended.

Clearly the children of age of a previous marriage can not inherit from the mother’s succession the widow’s portion not collected by her, or reduced to possession prior to her death.

In opposing the distribution, they urge that they inherit from their mother, who became entitled eo instanti at her husband’s death to §1000 as the widow’s portion. That the amount belonged to her in full property.

They also earnestly argue that the widow’s claim, having been put in judgment, became unalterable and vested in her as completely as if the amount had already been paid to her.

That it had become an inheritable right to which they were entitled as the representatives of their mother.

Opponents, in support of their claim, cite 13 An. 257, also the case of Welsh vs. Welsh, 41 An. 717, which settle affirmatively the absolute ownership of the widow where there are no minors of the husband.

The question decided in each of these cases was decided contradictorily with the widow asserting her rights.

The administrator sought to make the widow furnish bond as usufructuary. In each case it was decided that where there are no descendants of the husband, the amount due the widow is received by her in full property and she is not bound to give security.

*883 These decisions fully settle that question, but are not authority when the heirs of the widow claim the bounty by virtue of inheritance.

There are other decisions more direct in their application.

In the Robertson Succession, 28 An, 832, the court held “ when a widow is left in necessitous circumstances, but dies without claiming the homestead privilege from the succession of her husband, her heirs by a previous marriage can not claim the bounty in preference to the heirs or creditors of the husband.”

This case is hand in hand with the case at bar. The facts are similar, with only the difference that Mrs. M. B. Tugwell obtained a judgment for the amount before she died.

In the case cited it was decided that the amount must be in possession before it becomes the property of the widow and inheritable.

A similar conclusion was reached in the case of John Durkin,, 30 An. 669.

The amount in that case also had not yet been collected. It, therefore, remained in the succession of the deceased husband, to be appropriated to the payment of his debts.

In Successions of Hies and Hebert, 35 An. 3*71, the principle settled in the decisions before cited was reaffirmed.

In that case the widow left in necessitous circumstances died without claiming the $1000 reserved to her by law.

The three minor grandchildren were allowed the amount to the exclusion of the major children, not as an inheritance, but because in contemplation of law they could inherit from their grandfather.

The opponents plead the judgment obtained by their late mother as an inheritable right.

A judgment does not create any right. It decrees' its existence and makes it executory and secures a method to enforce payment.

If the right of inheritance existed at all, it was not affected in any respect by the judgment.

The major heirs can not recover this amount by representation of their mother’s succession. This we have seen is no longer an open question.

A judgment obtained, as in the case at bar, will not secure a right declared in at least three cases not to be recoverable.

The opponents have also presented the plea of res adjudicata to maintain the judgment obtained by their late mother.

*884 If the amount were allowed these heirs the succession would be insolvent.

The judgment is not binding on the heirs and creditors any more than a claim presented to an administrator and which he has promised to pay in due course of administration. 84 An. 548.

Since the judgment was rendered it-has became void and of no-effect.

It was granted on account of the necessitous circumstances of Mrs.' Tugwell.

Her death put an end to the necessity of allowing the bounty. In addition,' the plea of res adjudieata can not be opposed to the rights of parties not identical with those in the suit in which the judgment was rendered.

The widow’s portion was intended for the helpless.

The technical plea invoked will not prevail to change the destination — of the amount allowed — and to make parties its beneficiaries who are not included within the terms of the statute.

The judgment appealed from is correct, and is affirmed at appellant’s costs.