11 La. Ann. 232 | La. | 1856
Lead Opinion
This cause has already been before this court, and was remanded to make proper parties defendant. See 9 An. 213.
Plaintiffs are the surviving brother and sisters of Samuel Estill, deceased, and the children of a deceased brother of said Samuel. They claim to be heirs at law of Samuel Estill. The defendants are the curator, and the half-brothers and sisters, heirs of one William Estill, who was a natural son of Samuel Estill, but legitimated by a statute of the State (then territory) of Arkansas, of which Samuel and William Estill wore at the time residents, passed October Zith, 1835, and entitled “an Act to legitimatize the son of Samuel Estill." For a copy of the said statute in full, see the report of this case in 9th Annual.
The question now presented for our decision is, whether the statute in question had an extra territorial effect, and enabled William Estill to inherit, as the legitimate son of Samuel Estill, the property left by the latter in Louisiana. The solution of this question appertains to a distinction (which has been recognized by various decisions of the Supreme Court of Louisiana) of statutes real and statutes personal. The leading case ón this subject is Saul v. His Oreditors, 5 N. S., in which it was decided, that the general law of Virginia, which renders property acquired during marriage, the property of the husband, is a real statute, which did not follow a couple, who had contracted marriage in Virginia, into the State of Louisiana, where they resided many years, and where the wife died ; but that property acquired in Louisiana after their removal thither, entered into the matrimonial partnership of our law, and on the dissolution of the marriage, belonged one-half to the wife’s heirs. And in the ease of Banna v. Alpuente, 6 N. S. (the same Judge, Porter, who had, in the case of Saul, reviewed all the authorities, being the organ of the court,) it was decided that the laws of the domicil of origin, govern the state and condition, into whatever country the party removes; in other words, that such laws are personal statutes. And those two decisions are in harmony with the definition by Chief Justice Eustis, of the real and personal statute, in the case of the Augusta Insurance Company v. Morton, in 3 An. 426: “Those laws are real,” says the learned Judge, “in contradistinction to personal statutes, which regulate directly property, without reference to the condition or capacity of its possessor ."I There are some expressions of Judge Strawbridge, in the case of Brosnaham v. Turner, 16 L. R. 439, which are relied upon by plaintiffs’ counsel, and which are scarcely consistent with this definition. But the decision in Brosnaham v. Turner, turned upon a totally different point, the validity of a Sheriff’s sale. The remarks in Brosnaham v. Turner, as to the incapacity of the testamentary heirs of Tillao'ude to inherit in Louisiana, under a will probated under the authority of a statute of Florida, are at best but obiter dieta, and besides refer to a very different state of facts from that presented in this case. Here, an infant, or minor, son of a
It is admitted of record, that William Estill, then a small child, October 27, 1835, resided with his natural father, Samuel Estill, in Arkansas, who was then a citizen of Arkansas, and resided in Arkansas, and that both of them resided therein for several years before 1835, and also continued to reside in Arkansas until some time between 1837 and 1841.” Arkansas was then the Iona fide domicil of the Estills, at the time of the passage of the Act of the Legislature in question. William was, by law, the legitimate son of Samuel in Arkansas. Can it be said, that he lost his status by crossing the State line into the frontier parish of Carroll, some j'ears afterwards? We think not. The heritable quality of legitimacy which he had received from the Legislature of the State of his residence, accompanied him, when he changed his domicil.
The error of the judgment appealed from, consists in regarding William Estill as illegitimate, at the time of his father’s death. But he was not so. The original taint of illegitimacy had been removed by the Act of the Legislature. Legitimacy and illegitimacy are the result of positive laws, which differ very materially in different countries/ To illustrate this idea, suppose William Estill had been born in Louisiana, and, that after his birth, his father and mother had got married in Louisiana, and subsequently to tiieir marriage, removed with their child to Arkansas. Their marriage after his birth, would have legitimated their offspring by the law of their domicil; yet, by the law of Arkansas, a subsequent marriage would not have produced that effect. Nevertheless, the status of legitimacy being acquired in Louisiana, would have accompanied him into Arkansas. There are many precedents, in the legislation of various States of this Union, of legitimation by Act of the Legislature, and particularly in Louisiana. This seems identical with the legitimation per reseriptum principis of the Roman law.
Yoet, Commentarios ad Pandectas, lib. 25, tit. 7, sections 4 and 13.
If it be true that a general law of the place of domicil; changing the status of its citizens according to circumstances, is a personal statute, accompanying the party to every other country, provided the circumstances which operate such change, have occurred before the change of domicil, which we consider to be the doctrine settled in Louisiana; a fortiori, is a special law, removing a disability from a particular citizen by name, such a statute? The constitutional power oí the Legislature to enact such exceptional enabling statutes, was drawn directly in question, and ruled affirmatively, in the case of Pritchard v. Citizens Bank, 8 L.R. 133. The maxim cited by Story, Conflict of Laws, § 51, from Boullenois, “Habilis vel inliabilis in loco domicilii, est habilis vel inhabilis in omni loco,” must therefore be deemed law in Louisiana,
And it is not correct to .say, that the statute of Arkansas, to legitimate William Estill, (which is a personal statute) conflicted with the statute of distributions of Louisiana (which is a real statute)^ and consequently, as was held in Saul’s case, is overruled by the latter statute. By the Louisiana statute of distributions, the legitimate son inherits in preference to the brothers and sisters of the deceased. By the effect of the statute of Arkansas, William Estill was the legitimate son of Samuel Estill. Upon the demise of Samuel Estill in Louisiana, in 1849, fourteen years after that statute, William Estill, as his legitimate son, was his heir, by the law of Louisiana.
Judgment of the District Court reversed; and judgment for defendants, with costs in both courts.
It w'as competent for the Legislature of Arkansas, the domi-cil of his origin, to fix the status of William Kstill.
In substance and effect, that Legislature gave him the status of a legitimate son of Samuel Kslill.
The Arkansas statute, legitimating William Kstill, was a personal statute.
Therefore, the status of a legitimate son of Samuel Kstill, would accompany William Kstill into whatever country he might go.
He came hither with the status. He inherited, by our law, from his father, Samuel Kstill, because he was to all intents and purposes, a legitimate son, having become so by the law of the domicil of his origin, and not in fraud of our law, nor in violation of its policy.
I, therefore, concur in the opinion and judgment of Mr. Justice BucnANAfK
Dissenting Opinion
dissenting. I find myself unable to concur in the opinion of the majority of the court.
The difficulty in my mind, arises from the facts admitted by the parties, by which it appears that Smnuel Kstill was never married to Mary Ooleman, the mother of Willimi Kstill; that she had been previously married to ox\e Richard, Burnett, by whom she had two children ; that after the death of Burnett, she conceived and gave birth to William Kstill; and that after the birth of William Kstill, she married Kdward House, by whom she had six children, the defendants in this suit.
It does not appear whether the Act of the Legislature of Arkansas was passed before or after the marriage of Mary Ooleman with Edward House. The term infant used in the statute, means one under the age of twenty-one years. I The Legislature of that State, without doubt, had power to enable William Kstill to inherit from his acknowloged father, all effects situated within its boundaries*
The statute must have as much effect, and no more, as a general law of that State would have, wherein it should be declared that all natural children born or resident in the State of Arkansas, should be considered legitimate and inherit from their fathers, the same as if born in wedlock,/ Were we to allow such an act to have any extra-territorial effect, we should allow another State to provide a new class of heirs for immovables and successions in Louisiana./-
It is true, that foreign jurists class statutes in regard to legitimacy or illegitimacy, as personal. But on principle, it seems to me, that such statutes should have effect only when they cure some want of formality in regard to the marriage of persons who have really lived together as husband and wife, and not where, at most, they create a purely fictitious status.
And the law in regard to legitimacy, does not appear to be extended by civilians, to any case except where there has been a marriage. The maxim is, Pater est quern justa nuptim demonstrant. Story says, that this maxim is true only in a limited sense in the civil law. In applying it, he says: “They, the
But in England, a contrary doctrine prevails, and it has been held, that “A child born in Scotland, of unmarried parents, domiciled in that country, and who afterwards intermarry there, is not by such marriage rendered capable of inheriting lands in England.” Doe v. Vardeli, 5 Barnwell & Cress., 11 Com. Law Rep. 266.
The doctrine of the civil law ought to be enforced doubtless, in those cases where our own statute recognizes a mode of legitimation by acknowledgment by notarial act and subsequent marriage, (C. C. 219, Art. 1831, p. 86,) although the form in which it has been done in another State differs from our own./
In the case oft Smith v. Kelly's Heirs, 1 Cushman Mississippi Rep., 170, it -was held by the very able bench which then presided in the Supreme Court of •that State, that a child, illegitimate by the laws of South Carolina, where born and where his parents were subsequently married, could not inherit in Mississippi, although the child would have been legitimate in Mississippi, had he been born and the subsequent marriage of his parents taken place in that State.
In the case just cited, the maxim of the civil law was invoked, not to admit, but to exclude, the child from the inheritance, and as there was a marriage of the parents of the child, at most it only proves that the principle of the civil law is admitted in Mississippi, to apply to those cases where there has been a marriage recognized by the laws of another State.
But it seems to me, (conceding the statute to be personal,) it is against the policy of our law to enforce it to the exclusion of the heirs at law as regulated by the Civil Code. C. C. 882, 910, 224. Story Conflict Laws, 268. Saul v. His Creditors, 5 N. S. 697. The right of declaring who shall inherit immov-^ ables, has always been considered as belonging to the State where they are situated, and I question much if the comity of nations has yet been earned to the extent proposed in this case.
The Supreme Court of the United States says: “It is an acknowledged principle of law, that the title and disposition of real property is exclusively subject to the laws of the country where it is situated, which can alone prescribe the mode by which a title to it can pass from one person to another.” McCormick v. Sullivant, 10 Wheaton, 192. See also 2 Burrows, 1079; 2 Peere Williams, 291; Marcenaro v. Mordella, 10 An.
Savigny, one of the most liberal writers of the present day, and one who has carried the law of the domicil to a greater length than any other writer with whom I am acquainted, finds it necessary to place a limit to its application. In substance, he says, in order that a personal statute should be enforced in another country, there should be something in common in the jurisprudence of the two countries in respect to the statute so sought to be enV forced.
He says, and I make a translation, though rough, yet nearly literal: “ If a law relative to the personal condition (legal capacity) belongs to the absolute laws which, on account of their anomalous nature, lie outside of the common legal principles (Rechtsgemeinshaft) of independant States, the Judge does not apply the law of the domicil of the party, but the local law of the country to which he belongs.
“Where he to whom the law of his home denies a legal capacity as being a heretic, wishes to acquire rights and undertake business in a country where such a law in regard to heretics is rejected as immoral, and where perhaps the religion is the same as that of the so called heretic, the Judge should follow the law of his own country, and not that of the domicil of the person.
“If the law of one country declares Jews incapable of acquiring real estate, it binds foreign as well as resident Jews. The resident Jews, however, are not prevented thereby from acquiring land in another country which has no such law. In both these cases the law of the domicil of the person does not apply.
“The same may be said of the eivil death of the French and Russian law. The magistrate of a State where the institution of the civil death is not adopted, will not make any application of it, nor observe the law of the domicil.
“ The like rule prevails where the status of a negro slave is questioned in a country where the institution of slavery is not recognized.” Savigny, German Ed., Berlin, 8 vol., Sec. 365, Art. 1, 2, 4, 6 and 7, p. 160, 165.
The principle recognized by Savigny, that personal statutes are only enforced where there is something found in common with them in the general laws of the country where they are sought to be enforced, has occurred to Mr. Parsons in his works on contracts. He says: “In regard to the first class, it is true that wherever the incapacitated person goes, he carries his incapacity with him: but this is perhaps not because his incapacity was created by a law of the home from which he came, for it was only recognized by that law; and being recognized by every'other law, he finds himself under the same incapacity in every State, because he finds a similar law everywhere in force. For this law may well be called a law of nature; that is a law created by the Supreme Creator of, and law-giver for human nature, and as wide in its scope and operation as that nature.” 2 Parsons on Contracts, 85.
A brief analysis of the statute in question, I think, will render it very far from dear that it is not a real instead of personal statute. The title of the act in common law countries, as I understand, is no part of the Act. 1 Wm. Black R., 95. We must therefore look to the body of the Act to see what it means.
It enacts that William, Estill, the infant son of Samuel Estill, be made his legal heir and representive in as complete a manner as though he had been such from his birth. The maxim of the common law is Memo esthaeres viven-tis. Hence the Legislature of Arkansas did not intend to perform a legal impossibility when.it declared that William Estill was the heir and representative of Samuel Estill, then living; it rather looked to his estate and provided a person who should inherit after his death his lands as heir, and succeed to his personal effects as his legal representative, than attempted to create a present personal relationship between the two.
In this view, the statute further provides that, “ He (said William) shall be capable of inheriting the estate of said Samuel Estill, in as full and complete a manner as though said Samuel Estill had been married to his mother at the time of his birth; and the said William shall be known and called by the name of William Estill.”
The Act confers upon William the right of inheriting from Samuel Estill as fully as he would have done if Samuel had been married to his mother, but it does not, I think, necessarily place William under the power and authority of Samuel, or create any personal relationship between them.
If the principle contended for in this case be once admitted, it is difficult to foresee where it .will end.
I think because the statute of Arkansas has given William Estill the status of heir of Samuel Estill, we are obliged to declare him such in Louisiana, by the same reason we should have been obliged to recognize him as heir, if the Legislature of Arkansas had declared him heir to the exclusion of the legitimate children of Samuel Estill, and be had had legitimate children, for ho would have had the so called status of heir which would have been wanting in the legitimate children. If the Legislature of Arkansas should designate a class of third persons or strangers to be the legitimate heirs of certain persons, would it not, by the same reasoning, be a personal statute, and would not the person declared heir have the status, and should we not be obliged to enforce it? If the statute of Arkansas should authorize one person to adopt as his heirs such persons as he pleased, and provide that the persons so adopted should be considered the heirs as fully as if born in wedlock, -would it not also be as much a personal statute as the one before us? Would we enforce it to the exclusion of the heirs under our own law ?
Suppose Samuel Estill had had three illegitimate children by different mothers, and two legitimate children, and the Legislature of Arkansas had declared the three illegitimate children should be considered heirs, how would this effect the legitime in Louisiana of the two legitimate children ?
The child of the fourth wife of the Mohamedan, and the child perhaps of the thirtieth wife of the Mormon, have the status of legitimacy in their own countries ; would our courts give effect to that status should such heirs present themselves here ? These questions (arising from extreme cases it is true) show the difficulties which environ the application of the principle to the extent admitted by the majority of the court.
And I can see no safe rule except to consider ihose only as legitimate children, whose parents have at some time lived together as husband and wife. Eaeres et films est quern nuptial demonstrant. The Civil Code designated what persons shall inherit, and when a person presents himself who has not the qualities required by our law, except in an absolute fiction created by the statute of another State, my present impression is, that we should look at the real facts of the case, and give the inheritance to those entitled under our own laws.