Succession of Guillon

PROVOSTY, J. The final account of the testamentary executor is opposed by the husband of the decedent, who claims one-fourth of the succession by virtue of the following article of the Civil Code: “Art. 2382. When the wife has not brought any dowry, or when what she 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 [589] 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, whan there are but three or a 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 to him as a legacy by the husband or wife, who died first.” To be married to opponent tlie decedent was taken out of bed and put -in an easy chair, and within a few hours was put back into the bed, and without having left it died 19 days thereafter of tuberculosis. She left an estate valued at $10,807.49. The opponent had been courting her for some 3 years. lie lived with his parents, owned no property, and was agent for an insurance company at a salary of $30 a week. A few days before his marriage he resigned from this position. After his marriage he lived at the house of his .wife until her death, and was without employment. He then secured employment at the race track at $21 a week. Interpreting the said article 2382, this court, in the case of Succession of Rogge, 50 La. Ann. 1229, 23 South. 936, said: “The principle upon which the right of the necessitous surviving spouse to take the marital portion, the reasons, the cause, the motive of the law in granting it, is founded upon the consideration, or policy, that neither of the married persons, who have lived together in common enjoyment of wealth and of the position which it gives, shall be suddenly reduced to want, and, accordingly, a part of the estate of the opulent decease is appropriated to relieve the survivor, who, in the absence of it, would be reduced to poverty. Succession of Fortier, 3 La. Ann. 105, Pickens v. Gillam, 43 La. Ann. 350. “Brit as to his or her right to take the marital fourth, the surviving spouse is not an heir and the portion entitled to is not an inheritance. It is, therefore, not a vested right, nor is it a debt; it is a gift, a bounty, bestowed, not by the deceased, but by the law, when the conditions surrounding the relations of the parties to each other before and at the time of the dissolution of the marriage by the death of one of them, and surrounding the one surviving after the dissolution, meet the requirements of the law. Thus the spouse dying must be rich, or comparatively so; the one surviving, in necessitous circumstances, or comparatively so, with regard to .the other. f‘Again, the one dying rioh — -possessed of wealth which had been the common enjoyment of the conjugal pair — must leave the other in necessitous circumstances. If these conditions do not exist, the reason, the motive, the purpose of the law fails, and the right to take, does not attach. Connor v. Connor, 10 La. Ann. 451; Succession Justus, 44 La. Ann. 721.” In Succession of Fortier, 3 La. Ann. 105, this court said: “The principle upon which the law appears to be founded is that neither of the married parties who have lived together in the common enjoyment of wealth and of the position which it gives shall be suddenly reduced to want; and a part of the estate of the deceased, who has died rich, is appropriated to relieve the survivor, who, in the absence of- it, would be reduced to poverty. 53d Novel of Justinian, Merlin, verbo Quart de Conjoint Pauvre; Gregorio Lopez, Com. on Law 7, tit. 13, pt. 6.” In Succession of Kunemann, 115 La. 604, 39 South. 702, this court said (syllabus): “The right to the married fourth is a statute right, which can only be claimed under the conditions and for the purposes contemplated by it.” Page 613 (39 South. 705): “We cannot, however, overlook the fact that the source of the right to the marital fourth is derived from the law itself, and that the will of the lawmaker as to the terms and conditions under which it should be exercised is to be looked for and ascertained by the courts, and not the will of the spouses themselves: The courts are bound to confine the exercise of the right to the class of cases proper for-the execution of the purposes which the lawmaker had in view.” In Smith v. Smith, 43 La. Ann. 1151, 10 South. 251, this court said: “As said in one case: ‘In estimating her necessities, the law requires that we should take into consideration the condition of her husband and the habits of life which his ample fortune must have' engendered in his family.” [591] See, also, Dupuy v. Dupuy, Adm’r, 52 La. Ann. 873, 27 South. 287. Very evidently plaintiff's case does not meet these requirements, and he is therefore not entitled to recover. In Succession of Pelloat, 127 La. 878, 54 South. 132, upon which our learned brother below founded his decision, the case fulfilled every requirement. All that was held was that the fact of the marriage having been kept a secret created no obstacle to the operation of said article 2382. The judgment appealed from is set aside, and the opposition of the opponent is dismissed at Ms cost; the cost of appeal to be paid by opponent. O’NIELL, J., dissents.