4 La. Ann. 305 | La. | 1849
The of ihe court (King, J. absent,) Was pronounced by
This action is brought by the father and sister of Marie Adeline Joherti deceased—one as forced heir, the other as heir at law—to set aside her will, 'on the ground that the universal legatee therein named, is the adulterous bastard child of the testatrix on the side of his father, and as such incapable of taking by will any thing more than alimony, and such a sum as may be necessary to instruct him in a profession or trade. There was judgment in favor of the defendant, and the plaintiffs have appealed;
Oil the trial below, the defendant’s counsel having introduced in evidfeh'cé Ihe tertificates of birth and of baptism of the instituted heir, representing him to be the son of the testatrix and of a father unknown, further Offered a witness to prove that the testatrix was present at the baptismal ceremony, that she present-fed the child to the priest, declared herself to be the mother of it, and held it in her arms during the ceremony. The plaintiffs opposed the introduction of this testimony, on the ground that no parol evidence could bo received against of
We are of opinion that the evidence was properly admitted. The acknowledgment of an illegitimate child, which the law requires to be executed before a notary in presence of two witnesses, when it has not been made in the acts of birth or baptism, is that of the father. Illegitimate children may prove their natural maternal descent, and the acknowledgment of their mother, by any legal evidence. C. C. 221, 230.
The plaintiffs’ counsel then offered in evidence letters alleged to have been written by the testatrix, whose hand writing and signature thereto they, at the same time, offered to prove, in order to show that the instituted heir is the adulterous bastard child of the deceased, in the manner alleged in the petition. The counsel for the defendant objected to the introduction of this evidence, on the ground that natural paternal descent could not be proved against him in this suit, and tiie court, having sustained the objection, the plaintiffs took a bill of exceptions.
.At the time of the conception and birth of the legatee, his mother was free, and it is proved that ho has been acknowledged by her. The plaintiffs, as heirs of the mother, seek, as already stated, to annul her will in his favor, on the ground that, at the time of his conception and birth, his father, who has heretofore remained unknown, was a married man.
This case materially differs from those of Jung v. Doriocourt, 4 La. 175, and Robinet v. Verdun, 14 La. 542. In both of these cases the legatees were children of color,, and the plaintiffs claimed as heirs of the father, who was a white man. Had the claims been made by the legal heirs of the mother, as in this ease, we presume the decisions would have been otherwise. We do not mean to say that the acknowledgement of the mother is an absolute title against her le - gitimate heirs. But as she was free, they can only oppose to it that it is false, or made in fraud of their rights. They cannot be permitted to attenuate its force, or to change its results, by going into a scandalous inquiry of matters enpais, not personal to the testatrix. “ Les héritiers du páre et de la mére peuvent combatiré la reconnaissance, á l’ouverture de leur succession. Mais ils ne pourronS demander á prouver qu’un enfant reconnu par un pére libre est adultérin, du cóté desamére, restée inconnue.” 2Toullier, no. 966. This proposition appear-» to us equally true when the mother has acknowledged the illegitimate child, and the father is unknown.
We conclude, therefore,, that the evidence offered was properly rejected by the court.
The testatrix having left no legitimate descendants, her natural child could acquire from her by donation mortis causa the whole amount of her succession and the act of her last will being in due form, our judgment must be in his favor. C-C. 1471. Judgment affirmed.
