61 So. 384 | La. | 1913
John Yoist, white, and Eudora Bergeron, colored, lived together in concubinage from the year 1870 to the time of his death, in July, 1910. Two children were born of this irregular union, Henry J. Yoist in 1873, and Eudora Yoist in 1884. At the time of the conception and birth of these children, there was no legal impediment to the intermarriage of their father and mother.
On January 26, 1905, John Yoist duly acknowledged said children by notarial act, and two days later, before the same notary, legitimated them, pursuant to provisions of article 200 of the Civil Code. Yoist never married, and died leaving no ascendants, but a number of collateral relations. By last will and testament, John Yoist devised to his sister, Elizabeth A. Wilson, the usufruct during her lifetime of the Rigny place and its revenues, and instituted his children, Henry and Eudora, as his universal legatees.
The collateral heirs of the decedent instituted suit to annul said universal legacy, on the ground that the legatees were the illegitmate children of the deceased by a colored woman, and that it was incompetent under the law for him to legitimate such issue by notarial act. The executors and legatees answered that the latter had been duly and lawfully acknowledged and legitimated by notarial acts1, as above stated.
There was judgment in favor of the collateral heirs as prayed for, and the defendants have appealed.
It is conceded that the children of John Yoist could have been legitimated by notarial act, under Civil Code, art. 200, at any time prior to the passage of Act 54 of 1894, amending Civil Code, art. 94, by adding the following provision:
“Marriages between white persons and persons of color are prohibited, and the celebration of such marriages is forbidden, and such celebration carries with it no effect, and is null and void.”
It is argued by appellees that said amendment operated as a bar to the legitimation of the children of John Yoist, not only by marriage, but by notarial act.
'In Davenport v. Davenport, 116 La. 1009, 41 South. 240, 114 Am. St. Rep. 575, it was held in effect that Act 54 of 1894 did not prohibit the legitimation of the natural children of a white man and colored woman. In that case the petition of the collateral heirs assailed the will of the deceased on the ground, among others, that the legatees were “the unacknowledged illegitimate children of
It is therefore ordered that the judgment appealed from be annulled, avoided, and reversed, and it is now ordered that the demands of Mrs. Maggie G. Brown and .others, appellees herein, be rejected, and their petition be dismissed, with costs in both courts.