
    Succession of Fortier.
    Where a wife dies .without issue, leaving a sucoesssion valued at $26,000, and the only property of the husband, who was twenty six years old, and healthy, but without any profession or calling, consists of two slaves of the value of $1,100, the property will bp considered as inadequate to his support, and that fact will entitle him to claim, under art. 2359 of the Civil Code, one fourth of the succession of his wife. Per Curiam: The object of the law is, to provide for the support of the survivor out of the property of the deceased, without reference to his ability to Support himself by his personal industry; and the only question that can arise is, as to the sufficiency of the pecuniary means of the husband for his support.
    APPEAL from the Second District Court of New Orleans, Canon, J.
    
      Le Gardeur, for the appellant.
    The husband is shown to have been in necessitous circumstances, in the sense of article 2359. “ pauvreté ne pas á riavoir précisément rien; on est estimé pauvre quand on n’a pas ce qui est nécessaire pour vivre selon son état.” See a decision reported by Merlin, Rep. de Jurisp. verbo Quart de Conjoint Pauvre, p. 690. The 53d novel of Justinian declares: “ Etiam hie servandis similiter quidem in viris, similiter autem in mulieribus, communem namque etiam, hanc super aisponimus legem.” The object of that law was to relieve the poverty of the survivor out of the fortune of the decedent: “et inopia conjugis per divitias salvetur alterius.” Lopez, in his commentary on the law 7, tit. 13, of 6th Partida, makes the following remarks: Licht uxor pauper esset industriosa, et manibus suis posset victum lu crari, adhuc habebit istam quartam, cum luce lex se referat ad ea, qua, habeat in facultatibus propiis,......quia ista quarta daiur in honorem preeterili matrimonii ut conserventur conjuges in solito statu.” Febrero, in his “Tratado de Particiones,” vol. 2, p. 296, no. 175, speaks nearly to the same effect: Corresponded la viuda pobre la quarta marital, aun que con su trabajo pueda alimentarse, porque se la concede en honor y por consuelo del matrimonio perdido, para que conserve casta viudedad, y su trabajo no es seguro.”
    
    The applicability of these rules to the surviving husband under our laws, is obvious: 1st, because art. 2359 makes no distinction between husband and wife, and the principle is well settled that “ ubi lex non distinguit, nec nos distinguere debemus;" 2nd, because the reason of those rules applies with equal force to a surviving husband who has no property adequate to his support. Why is the marital portion given to the survivor 1 It is given him in honorem pmteriti matrimonii, ut conserventur conjuges in solito statu. Why is he entitled to that portion, even when he has a profession and is capable by his labor to provide for his maintainance ? Because his labor is uncertain, su trabajo no es seguro, and the law wishes him to be in possession of secured and substantive means, ea quee habeat in facultatibus propriis.
    
    
      Grima, for the opponents,
    contended that the appellant was not in the necessitous situation contemplated by art. 2359, as entitling him to a fourth of| the succession of his deceased wife. I
   The judgment of the court was pronounced by

King, J.

Valcowr Fortier presented to the District Court his account as ad-j ministrator of the succession of his deceased wife, Catharine Delphine Labranche, in which, as well as in the accompanying petition, he claimed one fourth of the estate of the deceased, in full property, as the marital portion, averring that his wife had died without issue, and that he was in necessitous circunfstances. An opposition was filed by several of the heirs, contesting the right of the surviving husband to the marital portion. The opposition was maintained, and Valcour Fortier has appealed.

The account presented shows that the estate of the deceased amounted at her death, to more than $86,000. From the evidence it appears that the only property of the husband consists of two slaves, one of them infirm, and both valued at only $1,100. He is a young man Without profession or calling of any kind, has never followed any pursuit as a means of support, and since the death of his wife has Jived at the house of a friend free of charge. Efforts made by a friend to procure him employment have proved unavailing, in consequence of his ignorance of the engiish language. His property is inadequate to his support. These are the principal facts in the case. The district judge states the reasons upon which he founds his judgment, in the following words; “ The survivor is a young man, twenty six years of age, and healthy. He has no charge except his own maintenance, and has two slaves. In this country he cannot be called necessitous, according to the word used in the Civil Code, art. 2359, which word would certainly apply to a woman in similar circumstances. Let the opposition be maintained,” &e.

It is conceded that the right to the marital portion given by the 2359th art. of our Code, extends to the husband as well as to the wife. The law makes no distinction. The circumstances which would authorise the claim on the part of the wife, would equally authorise it on the part of the husband. If the object of the law were only to provide for the survivor who was unable, by industrious pursuits, to support himself, and was without other adequate means of support, the opinion of the district judge would undoubtedly be correct. But the rule, under the text of our Code, which establishes a perfect reciprocity or right in this respect between the spouses, would extend also to the wife. 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, part 6. The object of the law is to provide a support out of the property of the deceased, without reference to the ability of the survivor to support himself by his industry or persona] exertions alone. The only question that can arise is, as to the sufficiency of the pecuniary means of the husband for his support. The evidence shows that they are inadequate, and this fact, in our opinion, entitles him to the one fourth part of the succession of his wife, who died comparatively rich, and without issue.

The judgment of the District Court is therefore reversed. It is further ordered that Valcour Fortier have judgment for, and recover, one fourth of the succession left by his deceased wife, Catherine Delphine Labranche, in full property ; the appellees paying the costs of this appeal.  