171 So. 93 | La. | 1936
The plaintiffs are claiming, by representation of their father, an interest in the succession of his parents. He was an illegitimate child, but the plaintiffs claim *970
that he was legitimated by the marriage of his parents, six months after he was born. The district judge decided that the marriage of the plaintiffs' grandparents did not have the effect of legitimating their child, even though they formally acknowledged him to be their child, in having him baptized, and in the registering of the baptism, at the time of the marriage ceremony. The judge, having so decided, rejected the demands of the plaintiffs, because the defendants are the legitimate sons and daughters, and the children of a deceased legitimate daughter, of the grandparents of the plaintiffs. The plaintiffs have appealed from the decision. The only question is whether the acknowledgment of the illegitimate child, by the parents, in the baptizing of the child and in the recording of the baptism, at the time of the marriage of the parents, and as a part of one continuous ceremony, was such an acknowledgment, under article
"Children born out of marriage, except those who are born from an incestuous or adulterous connection, may be legitimated by the subsequent marriage of their father and mother, whenever the latter have legally acknowledged them for their children, either before their marriage by an act passed before a notary and two witnesses, or by their contract of marriage itself." (The italics are by the court.)
In the Succession of Fortier, 51 La.Ann. 1562, 26 So. 554, in 1899, the court expressed the opinion that a verbal acknowledgment of an illegitimate child, by the father, to a priest, when the father of the child was about to be married to the mother of the child, was a sufficient acknowledgment to give the marriage the effect of legitimating the child. That opinion, if adhered to, would settle this case. And the opinion ought to be adhered to, even though it was not the only basis for the decision in the case, and even though, since the decision was rendered, the court, inadvertently, in two cases, gave to the term "their contract of marriage itself" the wrong meaning. The "contract of marriage itself" means, of course, the marriage ceremony, and has reference to the declaration made in article 86, and repeated in article 90, of the Civil Code: "The law considers marriage in no other view than that of a civil contract." That has reference, of course, to the reciprocal *973 rights and obligations of the parties to the contract; beyond which, the law considers marriage as a status, in which society is concerned.
In the case of Van Dickson v. Mayfield,
"In this case, there is not the slightest trace of evidence tending to show that, prior to the marriage of defendant's father and mother, they acknowledged her as their child, either by an act passed before a notary and two witnesses or in any marriage contract, and hence their marriage did not have the effect of legitimating her."
In the Succession of Jones, also, there was no occasion or intention to define the expression "or by their contract of marriage itself," as used in article
"It is clear that she [the illegitimate child] does not enjoy the status of a legitimated child, because her parents did not acknowledge her by notarial act before two witnesses, or marriage contract before the marriage. Van Dickson et al. v. Mayfield,
All that was decided in the Succession of Yoist was that Act No. 54 of 1894, prohibiting marriages between white persons and persons of color, did not repeal article
Of course, if the expression, "by their contract of marriage itself," in article
The history of article
When article 331 of the Code Napoleon was originally adopted as article 217 of the Louisiana Code of 1825, the French text was exactly the same as in the Code Napoleon, except that the concluding words, "dans l'acte même de célébration," were changed to "par leur contrat de mariage" — by their contract of marriage. The translation in the Code of 1825 is "by their contract of marriage itself." When this article, 217 of the Code of 1825, as translated, was copied in the revision of 1870, as article 198, only two changes were made: First, the words "by an act passed before a notary and two witnesses," which words were not in either article 331 of the Code Napoleon or article 217 of the Louisiana *978
Code of 1825, were inserted in the Code of 1870; and, second, the additional paragraph, "Every other mode of legitimating children is abolished," in article 217 of the Code of 1825, was omitted from article
The confusing of the term "contract of marriage" with the term "marriage contract," in Van Dickson v. Mayfield, was the result of the substituting of the term "contrat de mariage," in article 217 of the Louisiana Code of 1825, for the term "l'acte de célébration," in article 331 of the Code Civil Français. That change was apt to cause confusion, because in the French law a marriage is not called a contract of marriage. It is called "l'acte de célébration," or "l'acte de mariage." The term "contrat de mariage," in the French law, has reference only to the so-called marriage contract, or matrimonial agreement, which precedes the marriage ceremony. It is called "contrat de mariage" in the French law because there is no other way of saying "marriage contract" in the French language. But the translation in the Louisiana Code, "their contract of marriage itself," indicates that the French text, "contrat de mariage," was deemed synonymous with "l'acte de célébration," or "l'acte de mariage."
It is astonishing how exactly the Court of Cassation stated, as a hypothetical case, the facts of the present case, in the case entitled Expert C. de Brugière et autres, 27 decembre 1831, Journal du Palais, vol. 24, 1831, 1832, 3d Ed. by Ledru-Rollin, p. 496; where the court cited Cass. 12 avr. 1820, et Douai, 15 mai 1816, and the notes to these cases, as authority for the statement in the headnote, which is translated *980 thus: Supposing the case were otherwise, the acknowledgment (la reconnaissance) of a child and the marriage of his father and mother, performed simultaneously the same day, on the same registers, in presence of the same witnesses and of the same public officer, should be considered as one and the same act, fulfilling the intendment (le voeu) of article 331, Civil Code.
The only cases cited or relied upon by the legitimate heirs in this case are Van Dickson v. Mayfield,
We come to the point, therefore, where we must either say that the acknowledgment of the illegitimate child in this case, in the ceremony in which the parents were married and the child was baptized, was an acknowledgment "by their contract of marriage itself," or say that such an acknowledgment must be written in the marriage certificate and signed by the celebrant and by the parties to the marriage, and by the three witnesses; which is the certificate provided for in article
Article
"The Code attaches to acts of baptism a high and valuable importance. They are legal evidence to prove the filiation of legitimate children, when kept agreeably *983 to law, or to the usages of the country. R.C.C. 193 (212); 958 (952).
"The Code expressly makes a `transcript,' that is a copy, from the register, valid proof for that purpose. It authorizes acknowledgments of natural children to be made by such acts. R.C.C. 203 (221), 204 (222)."
And maintaining, in that case, that the baptismal certificate was proof of a valid acknowledgment of the illegitimate child, under article 203 of the Civil Code, to elevate the child from the status of bastard to that of a natural child, the court said:
"It [the baptismal certificate] is not signed by the mother, but that is no objection. The act is drawn up as similar acts are, according to the usages and rites of the Catholic Church and of the country."
To say that the illegitimate child in this case was not legally acknowledged by his parents, "by their contract of marriage itself," would be the same as to say that the acknowledgment was invalid because it was not embodied in the marriage certificate and signed by the parties to the marriage. The acknowledgment was embodied in the baptismal certificate — as much so as in the Succession of Hebert — and that is all that is required by the Code to convert a bastard into an acknowledged illegitimate child. According to the ruling *984 in Landry v. American Creosote Works, the acknowledgment of the illegitimate child in this case would not have given to the marriage the effect of legitimating the child if the baptism had not been administered at the time of the marriage ceremony, and as a part of the ceremony in which both the marriage and the baptism took place. But, considering that the administering of the baptism, in which the parents formally acknowledged the child to be their illegitimate child, was a part of the ceremony in which the parents were married, we find ample authority for maintaining that the child was acknowledged by, or during, the marriage ceremony, and hence that the marriage had the effect of legitimating the child.
As the other heirs of the grandparents of the plaintiffs consist of five sons, two daughters, and the legitimate children of a deceased daughter, the plaintiffs are entitled to one ninth of the estate.
The judgment appealed from is annulled, and it is now ordered, adjudged, and decreed that the plaintiffs' father, now deceased, was a legitimated child, and that they, the plaintiffs, as his heirs and legal representatives, are entitled to one ninth of the estate of his parents. The defendants are to pay the costs of this suit. And the case is ordered remanded to the district court for such further proceedings as may be necessary, consistent with this decree. *985