| La. | Sep 15, 1844
The petitioner, the husband of the late Ursule Duriaux, claims one-fourth of her succession as his marital portion, alleging that he is an aged man of sixty years, in necessitous circumstances; that his wife died, without issue, either from her marriage with him, or her first marriage with Jean Landry, her former husband, and that her succession is worth more than ten thousand dollars. He further alleges that the defendants, who are the collateral heirs of his wife, who brought no dowry into the marriage, have accepted absolutely the succession of Ursule Duriaux, have caused an inventory of the same to be made, and have proceeded to sell it at public auction, excluding him from a participation in the proceedings had for the settlement of the estate; and that by thus disposing of
This case cannot be distinguished from that of Harrell v. Harrell and others, reported in the 17th La. 375, wherein we held that “ the action given by article 2359 of the Civil Code, pre-supposes a liquidation and final settlement of the affairs and debts of the succession; that it is only after such liquidation has been made, so as to ascertain the real situation of the estate, that the right of action is open; and that the court, to which the application is made by the surviving spouse, becomes enabled to determine on the existence of the two essential and relative facts required by law : that the deceased died rich, and that the surviving spouse is in necessitous circumstances. See also, 6 La. 110.
The evidence shows that the second community which lasted about eighteen months, acquired no property, and that its debts are inconsiderable, and that the first one, which existed between Jean Landry and the deceased, has never been settled, as Ursule Duriaux, by the last will of her first husband, was to keep and enjoy all his property during her lifetime. That to effect a partition and settlement between the defendants and the heirs of Landry, a sale of- all the property was made, on the 25th of April, 1842. From this settlement it will appear what property belonged to Landry before his marriage, and what was acquired during the community. It does not appear to us, that there has been any unusual tardiness or delay on the part of the defendants. Ursule Duriaux died hi the beginning of March, 1842; an inventory was made the same month, and the sale, which took place the following month, produced $10,479 13 3-4. The instalments of this sale are not mentioned in the record, but supposing the property to have been sold on the ordinary terms of credit, they could not have become due in October, 1842, when this suit was brought. The very judgment obtained by the plaintiff below, shows that his action was premature, it leaving him exactly where he was before the institution of his suit, as it merely declares his] abstract right to one-fourth of his wife’s estate, after its amount shall have been ascertained. This right the plaintiff already had under article 2359 of the Civil Code: but to exercise-it effectually, he must show the specific -amount of the succession of which he claims one-fourth, either by exhibiting a regular settlement and liquidation of the estate of his late wife, or by proving that her heirs have received a specific amount of money or property belonging to the same, which they detain, without making such settlement or liquidation. In the absence of such evidence, we cannot but consider this action as premature and unfounded.
It is, therefore, ordered, that the judgment of the District Court be reversed, and that there be judgment for the defendants as in case of nonsuit, with costs in both courts.