79 So. 421 | La. | 1918
Statement of the Case.
On March 25, 1912, there was filed in the civil district court a petition signed by Suzanne St. Martin, as widow in community, and five other persons, in-
“And said appearers further declare that differences have arisen between them relative to said succession, and the settlement thereof, and which they have settled and compromised, and they do hereby settle and compromise the same, on the following basis.”
It was then agreed that Denis Rufin should accept $5,000 in cash, in lieu of certain real estate specially bequeathed to him; that the special legacy to Mrs. Bordes should remain undisturbed; that the executor should pay Hypolite Rufin $1,500; and it was declared:
“That the above agreement and stipulations are in the nature of a compromise, and are intended to, and do, constitute a full, complete, and final statement of all the claims and counterclaims which they have, or may have, against each other, connected with, or growing out of, the succcession of their late mother, and that all property, movable or immovable, received by them, or by each of them, should not be brought back into her succession, but should be kept by each of them, and no account whatever should now, or at any time, be taken of them.”
The parties also approved' the account of the executor in every respect, which, included a proposed distribution among the heirs, who thereafter, on January 9, 1914, united in a petition to the court, in which, after reciting the facts, of the death of their mother, the probate of her will, the compromise agreement, etc., they allege that they accept her succession, purely and simply, and pray the court to recognize them as the sole and only children and forced heirs of their mother, entitled to her entire succession save that disposed of by special legacies, and put them in possession of the same, and there was judgment as prayed for. On April 13, 1914, Hypolite Rufin filed the petition which initiated the litigation, the judgment in which has been brought here, on his appeal for review. He therein alleges that he is one of “the four legitimate children” of his parents, the others of that class being his brother Denis, his sister Mrs. Leonie Bordes and his sister Mrs. Leon tine Pardou; that “the Jean Rufin, referred to in the judgment of March 25, 1912,” is an illegitimate, unacknowledged child of Suzanne St. Martin and an unknown father; that he was born on April 10, 1872, in the Commune de Meillon in France, almost 3 years prior to the marriage of petitioner’s parents, which took place at the Cathedral in New Orleans on March 19, 1875; that, if he is a son of petitioner’s father, which is denied, he was born out of wedlock, and was never legally acknowledged; that about April 25, 1912, petitioner’s mother sold, for $20,000, a certain square of ground which she had acquired with funds
He prays that Jean Rufin be cited, and for judgment against him for $1,000, "with interest, and decreeing the nullity, in so far as it recognizes said Jean Rufin, of the judgment of March 25, 1912. Jean Rufin excepted to the petition on the ground that it failed to pray for the citation of necessary parties, and by supplemental petition Denis Rufin, Mrs. Bordes, and Mrs. Pardou were brought into the case. All of the defendants then pleaded the exceptions, no cause of action, estoppel and res judicata, and there was a trial, upon which the evidence adduced relates mainly, if not exclusively, to the question of estoppel.
Plaintiff, defendant in exception relies entirely upon his own testimony to satisfy the court that, in recognizing Jean Rufin as his brother and coheir as appears in the foregoing statement, he did so in ignorance of facts, or of the fact that he was an “unacknowledged illegitimate child,” but he does not pretend to say that his ignorance was attributable to any deception or concealment practiced by defendants. He alleges that Jean Rufin, knowing for 30 years that he was of illegitimate birth, fraudulently participated in the friendly partition among the heirs, but he proves no fraud, and his twin brother, Denis, who like himself is 36 years old, testifies that he and all the family, plaintiff as well as himself, have always known that Jean was born in France; and that their parents were married after they came to this country. As they and the other children were born of the marriage, naturally neither could testify of his own knowledge concerning anything that occurred at that time or for some years afterwards, and no other members of the family, save Jean and the wife of the plaintiff were called as witnesses. Most of the information that we get is therefore derived from family tradition, according to which, and ■ to the testimony of Jean, the father of the family left France, probably, in 1870 or-1871, to escape conscription, and the mother followed a year later. Jean says that he was bom in 1871; that his mother was married 3 or 4 years afterward in New Orleans; that he had been left in France, where he lived with his grandparents, until he became something of a boy, possibly 10, or maybe 13, years old; and that he learned about the marriage, etc., after he
Being asked to give his reason for having his wife write for the certificate, he refused to give it. He testified that he always knew that Jean was born in France; that he had always heard that his mother was married here in 1875. At another time, he says that he obtained that information from his wife; that she told him about the time of the compromise, but that she had known it about 5 years; had been told by Jean’s wife. Our conclusion is that the truth in regard to the time when plaintiff became informed as to Jean’s status, without having authenticated documentary evidence upon the subject, is to be found in the testimony of his twin brother, Denis, who, testifying against his own pecuniary interest, says that they always possessed that information; that it was well understood in the family.
Opinion.
Pretermitting any consideration of the exceptions of no cause of action and res judicata, we are of opinion that the plea of estoppel was properly sustained.
“The party applying for relief must not have been guilty of laches or negligence. He must exhibit a case where an execution of the judgment would be against good conscience, and it must show matter of which the defeated party could not avail himself in the trial of the former suit, or that he was prevented from availing himself by accident or fraud, or could not have known of before by reasonable diligence.” Perry v. Rue, 31 La. Ann. 288; Swain v. Sampson, 6 La. Ann. 800; Norris v. Fristoe, 3 La. Ann. 646; Succession of Corrigan, 42 La. Ann. 70, 7 South. 74; Warren v. Copp, 48 La. Ann. 810, 19 South. 746. It is a good defense to a suit that the contract on which it is based was consummated by deception or fraud. But such averment would not be a valid basis for annulling a judgment obtained without fraud or other ill practices of the judgment creditor.” Merchants’ Ins. Co. v. Pointer, 22 La. Ann. 621.
Counsel then invoke the various articles of the Civil Code concerning prohibitory laws, and the law regulating the devolution of property, but we fail to find that any of them preclude a person who is sui juris from waiving the obstacle of illegitimacy and concurring with his unfortunate brother in the obtention of a judgment putting them in possession, share and share alike, of the estate of their common parents. The brother of the plaintiff, who has not joined him in this suit and who has given testimony to the effect that plaintiff has always known that of which he now pretends to have been ignorant, and the two sisters, who have not even appeared as witnesses in the case, were evidently of the opinion that he whom their parents had publicly recognized as their child, and whom, during all -their lives, they had been taught to treat as a brother, should receive from them the consideration of a brother, and, above all, that they should not proclaim an early fault of the dead which, but for some such proceeding as this, would soon be forever buried in oblivion. For the reasons thus assigned, the judgment appealed from is affirmed, at the cost of the appellant.