91 So. 635 | La. | 1920
Lead Opinion
On Motion to Dismiss the Appeals.
There are- two separate and independent appeals in this case. The appellants are the state of Louisiana and George West, neither of whom was a party to the proceedings in which the judgment appealed from was rendered.
The suit was brought by Lillie G. Taylor against Angeline Allen alone. In her petition, plaintiff alleged that she was the acknowledged illegitimate child, or natural child, and as such the only surviving heir, of Lona McGee, who had died, intestate, in or about the year 1905. She alleged that she was born before Lona McGee had married Isom McGee, who died, intestate, in 1897. She alleged that Isom McGee had acquired, as the property of the marital community between him and Lona McGee, a tract of land in the parish of Claiborne, La., described as composed of certain specified portions of sections 18, 19, and 20, in township 21 no^'th, range 7 west. She alleged that a child was born of the marriage of Isom and Lona McGee and was named Mattie McGee, and that Isom McGee was survived by his widow in community and by his sole heir, Mattie McGee. She alleged that Mattie McGee died, intestate, and without descendant heirs, in 1908, leaving as her sole heir at law her mother, Lona McGee. She averred that Lona McGee left no other legitimate child, or legitimate heir, and that therefore she (plaintiff) was the sole surviving heir at law of her mother Lona McGee. She alleged that she had been duly acknowledged and recognized by Lona McGee as the latter’s child; and, in that connection, that her mother had, publicly and privately, acknowledged and recognized her as being her child; that her mother had proclaimed and made known to the world that she (plaintiff) was her daughter, had sent her to school as her daughter, and had always, openly as well as privately, acknowledged, recognized and proclaimed that she (plaintiff) was her (Lona McGee’s) child, the half-sister of Mattie McGee. Plaintiff alleged that Angeline Allen, made defendant in the suit, was the natural mother of Lona McGee, and had duly acknowledged the latter as her child; and that she (Angeline. Allen) was the only person who would have inherited any part of the estate of Lona McGee, in default of plaintiff,, the natural child of Lona McGee. She alleged that there was no inheritance tax imposed upon the property at the time of the
The prayer of the petition was that Angeline Allen be cited according to law, and that, at the expiration of the legal delays, the petitioner be recognized as the duly acknowledged and natural child and therefore the sole heir at law of Lona McGee, and that, as such sole heir, she be sent into possession of all of the property of the estate of Lona McGee and particularly the property described in plaintiff’s petition.
Answering the suit, Angeline Allen admitted all of the allegations of fact contained in plaintiff’s petition, and especially admitted and averred that she (Angeline Allen) would have inherited the estate of Lona McGee if the latter had not been survived by the natural daughter, Lillie G. Taylor. Defendant further alleged in her answer that it was within her personal knowledge that Lillie G. Taylor was the child of Lona McGee; that she (defendant) was present when the child was born, and knew the child intimately all her life; that Lona McGee had always, publicly and privately, acknowledged Lillie G. Taylor as her daughter, and had duly legitimated her. Defendant therefore averred that she had no right or interest in the estate of Lona McGeé, unless Lillie G. Táylor should renounce the succession, in which event, she (defendant) claimed that she would inherit the estate.
The.allegations of the petition and answer were verified by the affidavit of the plaintiff and defendant, respectively.
Subscribed to the defendant’s answer was an acknowledgment by the tax collector that there was no inheritance tax due on the land described in the plaintiff’s petition, and that he (the tax collector) therefore consented that the petitioner be sent into possession of the land.
The case was submitted for decision upon the petition and answer and upon an ex parte affidavit signed by Angeline Allen and James Allen, viz.:
State of Louisiana, Parish of Claiborne:
Angeline Allen and James Allen, being by me duly sworn, depose and say that they were well acquainted with the late Lona McGee, the widow of Isom McGree, deceased, and with the family of the said deceased; that the deceased died intestate; that Lillie G. Taylor is her sole and only heir; that the said Lona McGee privately and publicly acknowledged the said Lillie G. Taylor as being her daughter; and that the said Lillie G. Taylor is her daughter; and that the said Lona McGee always privately and publicly acknowledged her as such; that the said Lillie G. Taylor, who is praying to be sent into possession of the property belonging to the estate of the said Lona McGee, is her sole heir; that all of the facts stated and allegations made in saijl petition are true and correct; and that the said estate is free of debt.
her
[Signed] Angeline X Allen.
mark
[Signed] James Allen.
Sworn to and subscribed before me on this the 11th day of April, 1920.
[Signed] E. H. Fortson,
Clerk Dist. Court.
On the foregoing pleadings and affidavit, and on the acknowledgment by the tax collector that no inheritance tax was due on the land described in the plaintiff’s petition, judgment was rendered and signed, in open court, on the 11th of April, 1920, as follows:
J udgment.
Lillie G. Taylor v. Angelina Matthews. No -, Claiborne Parish, Louisiana.
In this case, by reason of the law and the evidence being in favor thereof, it is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Lillie G. Taylor, and against Angeline Allen, defendant, recognizing the plaintiff, Lillie G. Taylor, as the natural daughter of Lona McGee, deceased, and the sole heir at law of said Lona McGee, her*89 mother, who was the widow of Isom McGee, deceased; and that as such she he sent and put in possession of ail the property, rights and credits of whatever character and kind the said Lona McGee might have owned at her death, and particularly the following described real estate, situated in Claiborne parish, to wit: The southeast quarter of the southeast quarter (SE^-SE1^) of section 18 lying south of the Minden and Sykes Eerry Road, and the northeast quarter of the northeast quarter (NE^-NE1/^) of section 19; and all of the northwest quarter of the northeast quarter (NW^-NE^) of said section 19, except that part now owned by Lang Langston, and the northwest quarter of the northwest quarter (NW%-NW%) of section 20; all in township 21 north, range 7 west.
Thus done, read and signed, in open court, on this the 11th day of April, A. D. 1920.
[Signed] J. E. Reynolds, Judge.
The fact that, in the caption of the judgment, the name of the defendant is written “Angelina Matthews,” and that the number of the suit is omitted, is not regarded as a matter of any importance in the discussion of the motion to dismiss the appeal.
On the 5th of July, 1920, the Attorney General and a special assistant to the Attorney General filed in the district coiirt a petition, on behalf of the state of Louisiana, praying for a devolutive appeal from the judgment; and an order of appeal was granted. The petitioner annexed to and made part of the petition for an appeal (1) the original petition and affidavit of Lillie G. Taylor, (2) the answer and affidavit of the defendant Angeline Allen, (S) the affidavit of Angeline and James Allen, (4) the acknowledgment of the tax collector that the property owed no inheritance tax, and (5) the judgment of the district court, together with a certificate of the clerk of court that the record thus annexed to the petition was a true and correct record of all documents filed and of all proceedings had in the case. It was alleged in the petition for appeal that Lona McGee had left no lawful heirs, nor surviving husband, nor legally acknowledged illegitimate children, and that the state of Louisiana was therefore the sole heir of Lona McGee and was aggrieved by the judgment and had an interest in appealing therefrom.
On the 6th of July, 1920, George West filed in the district court a petition for a devolutive appeal from the judgment, and an order of appeal was granted him. He alleged in his petition that he was the owner and in possession of the land described in the judgment, and that he was therefore aggrieved by the judgment and had an interest in appealing therefrom.
It is true, the state is not an heir and does not, in the strict sense of the word, inherit the property of a vacant succession. Article 485 of the Civil Code declares that successions of persons who die without heirs, or which are not claimed by those having a right to them, belong to the state. Article 929 of the Code declares that, in default of lawful relations, or of a surviving husband or wife, or acknowledged natural children, the succession belongs to the state. Such successions are called vacant successions. The property itself, of such successions, does not escheat or revert to the state, but belongs to the public, and the state steps in and takes charge of the property, by virtue of her sovereignty. The manner of disposing of the property of such successions, and of retaining the proceeds in the state treasury subject to the claims of any creditors or heirs who may eventually come forward, is provided for in articles 1169 and 1197 of the Code. It is not only the right but the duty of the state, under her sovereign power, to institute legal proceedings for the recovery of vacant successions. There is nothing to the contrary in the decisions cited by counsel for appellee, State v. Ames, 23 La. Ann. 69, and Puyoulet v. Gehrke, 143 La. 315, 78 South. 571. There is therefore no merit in appellee’s contention that the state has no interest in prosecuting this appeal.
It is true, the judgment rendered in favor of Lillie G. Taylor and against Angeline Allen could not be pleaded as res judicata against the state of Louisiana or against George West. But the judgment purports to fix the status of Lillie G. Taylor as an acknowledged or natural child, and thereby to confer upon her certain rights which conflict with the rights asserted by the state of Louisiana, and with the rights asserted by George West. The latter’s allegation that he is-in possession of the land as owner has not been put at issue; and, for the purpose of determining his right of appeal, we accept
The iast ground urged by counsel for appellee, for demanding a dismissal of both appeals, pertains to the merits of the case; that is:
“That the record, as made up by the lower court, showing that the plaintiff, as the natural daughter of the deceased, who herself was a natural child, was put in possession by order of the court.”
The motions to dismiss the appeals are overruled.
Dissenting Opinion
(dissenting). The bone of contention in this case is a tract of land which a colored woman named Lona McGee owned at her death, and which has become very valuable as the result of the discovery of oil upon it. This land was in the possession of one of the appellants, George West. The plaintiff, Lillie G. Taylor, also a colored woman, the illegitimate offspring of the said Lona McGee, obtained an order of court sending her into possession of the succession of her said mother, and brought a petitory action against George West in the United States District Court for the Western District of Louisiana to recover this land. In his defense to said suit George West contested the heirship of Lillie G. Taylor, on the ground that although she had been brought up by her mother and recognized and acknowledged as her child in every ordinary way in which a colored mother can recognize and acknowledge her child, yet that she was not the heir of her mother because her mother had not acknowledged her by a registry of baptism or by a notarial act. Judgment went for Lillie Taylor. West then intervened in the suit in which Lillie Taylor had obtained the order sending her into possession of the succession of her mother and obtained an appeal from said order or judgment, and that is the matter now to be considered. The state of Louisiana also has appealed from said order or judgment.
The purpose of the two appellants is to contest the heirship of Lillie Taylor, on the said ground of her not having ever been acknowledged by her mother either by notarial act or registry of baptism.
West does not claim to be either a creditor or an heir of Lona McGee. What concern of his it can be, therefore, what orders are or are not rendered in her succession, I am at a loss to imagine.
His learned counsel say that the said judgment sending Lillie Taylor into possession is a judgment in rem, and they quote Jones on Ev. § 606, to the effect that judgments in rem are binding on all persons in interest, whether parties to the proceedings in which the judgment was rendered or not.
Contrary to this, in so far as may be of interest in the present case see Succession of Lampton, 35 La. Ann. 418, and Chamberlain v. City of New Orleans, 48 La. Ann. 1055, 20 South. 169, and other cases where this court has held that a judgment recognizing heirs and sending them- into possession does not prove heirship as against third persons not parties to the proceeding in which the judgment was rendered.
West was holding property which Lillie Taylor, or any other representative of the succession of Lona McGee, might bring suit to recover from him. This was the limit of his connection with said succession. His sole interest was to prevent anybody from qualifying as the representative of said succession so that suit might not be brought against him in behalf of said succession. His appeal is simply by way of obstruction to prevent suit against him — and his appeal-able interest extends no further. It is the same precisely as any debtor of a succession, or any trespasser or other detainer of the property of a succession might have for obstructing the proceedings by which a rep
In the majority opinion it is said that—
“If a person in possession as owner of property has no interest in appealing from a judgment recognizing some one else to he the owner and ordering that some one else be sent into possession of the property, no person who was not a party to the proceedings in which such judgment was rendered could possibly have an interest in appealing.”
The fallacy of this reasoning of the majority opinion lies in the assumption that the order or judgment sending an heir into possession can affect the title which some third person may have in property inventoried as belonging to the succession, or can affect the possession which such third person may haye of such property; whereas, such is not the case. In the present suit, for instance, George West remained in quiet and undisturbed possession of the tract of land in question after this order, or judgment sending Lillie Tayor into possession, had been rendered; and it was only the petitory action in the District Court of the United States that disturbed him or questioned his title'. And in that suit he litigated with Lillie Taylor, on both the question of her heirship and that of the title of the succession as if Lillie Taylor had never been sent into possession.
A judgment sending heirs into possession does not pass upon the question either of title or of possession, but simply and exclusively upon that of heirship; the sending into possession is a mere consequence of the heirship; such a judgment is therefore altogether conditional upon the succession being owner of the property; it does not purport to do more than to put the heir in the shoes of the succession; its substance is that the heir is sent into possession of whatever property the succession is owner of.
The majority opinion characterizes such a judgment as one “ordering some one else” (the heir) “to be sent into possession of the property.” This wording is misleading.
Such a judgment does not order the heir “to be sent into possession,” but sends him into possession. It merely gives him permission to take possession of whatever property the succession may have; it is not an order on which he can cause a writ of any kind to issue for disturbing some third person who may happen to be in possession of property belonging to the succession. The utmost scope of such an order is to authorize the heir to take possession of whatever property the succession has possession of, and to stand in judgment for the succession in vindicating judicially whatever rights the succession may have.
And, indeed, the appealable interest of West herein does not even go to the extent of preventing the succession from being provided with a representative, for the succession has already sued him through Lillie Taylor, and the suit has already culminated in a judgment which nothing now can shake except an appeal; for the District Court of the United States will “protect” that judgment, if it is not appealed from, or if it is affirmed on appeal, against any judgment any state court may render, or any action a state court may venture to attempt, in opposition to it. Waterman v. Canal-Louisiana Bank, 215 U. S. 46, 30 Sup. Ct. 10, 54 L. Ed. 85.
The only possible benefit that I can see West can derive from the present appeal would be the influence the views of this court might have on the federal appellate court in the event this court should rule differently from the federal District Court .on the question which the purpose of these appeals is to have this court pass on.
West has no pecuniary interest; and there
“A third party, appealing from a judgment must allege and show a direct pecuniary interest in the subject-matter of the suit.” State ex rel. v. Markey, 21 La. Ann. 743.
“The having of a pecuniary interest is the foundation of the right to appeal.” Levert v. Shirley Planting Co., 135 La. 929, 66 South. 301.
“It is incumbent upon an appellant, appealing from a judgment or order rendered in proceedings to which he was not a party, to disclose, in his petition for the appeal, that he is aggrieved by the judgment or order complained of, and that a reversal of .the judgment would be of advantage to him.” Citizens’ Bank of Columbia v. Bellamy Lumber Co., 140 La. 497, 73 South. 308.
In West’s petition for the appeal the only-allegation made for showing an appealable interest reads:
“Petitioner further shows that he is the owner and in possession of the property inventoried as belonging to the succession of Lona McGee, deceased; that the proceedings in the aforesaid suit, upon which the said judgment was predicated, are ex parte, null and void, not being conducted contradictorily with any one at interest.”
It is only because he pretends to be owner and in possession of that property of the succession that he claims the right to appeal. See, in that connection, City of New Orleans v. Dufossat, 46 La. Ann. 398, 14 South. 884, where the syllabus expressing the doctrine of the case reads:
“In case the record discloses that a third person appealing from a judgment between other persons has no interest in the appeal, that the judgment appealed from in no way aggrieves him, and does not, as to him, form res adjudicata, the appeal will be dismissed on proper motion timely made.”
The state in her petition for appeal alleges that Lona McGee left no lawful heirs, nor husband nor legally acknowledged illegitimate child.
She offered no other evidence to prove said allegation than the oath of the attorney who is representing the Attorney General in this matter, to the effect that “he believes the allegation to be true.”
From the written opinion of the Judge of the United States District Court in passing upon the application of George West for a new trial in the suit of Lillie Taylor against him, it appears that Lona McGee was survived by her husband, named Homer Scott; and the admission was freely made in the course of the oral argument as to the survival of this husband.
If so, the state is utterly without interest in this matter.
Even, however, if it be otherwise the state is only an irregular heir and as such stands on precisely the same footing as the other irregular heirs (the natural children and the husband) in her legal relation to the property of the succession. Thus in Puyoulet v. Gehrke, 143 La. 315, 78 South. 571, this court said:
“But even if the state be considered an heir, that heirship, like that of the surviving husband or wife, or his or her natural. children, is, according to articles 878 and 917, irregular. The' doctrine of le mort saisit le vif does not apply to ¡regular heirs.”
Of the natural children and the surviving husband or wife, article 949, C. C., says:
“Natural children and the surviving husband or wife before being put into possession of the estate left to them, are not considered as having succeeded to the deceased from the instant of his death; but they do not the less transmit their rights to their heirs, if they die before having made their demand to be put into possession. The reason is, that this sort of heirs having only a right of action to cause themselves to be put into possession of successions thus falling to them, this right and this action form a part of their succession, which they transmit to their heirs.”
This is so because the legal heir has the seizin, or right of possession (C. C. arts. 940 and 941); whereas, the irregular heir has not.
“Art. 944. The heir being considered as having succeeded to the deceased from the instant of his death, the first effect of this right is that the heir transmits the succession to his .own heirs, with the right of accepting or renouncing, although he himself has not accepted it, and even in ease he was ignorant that the succession was opened in his favor.
“Art. 945. The second effect of this right is to authorize the heir to institute all the actions, even possessory ones, which the deceased had a right to institute, and to prosecute those already commenced. For the heir, in everything, represents the deceased, and is of full right in his place as well for his rights as his obligations.”
The first of these rights accrues to the irregular heirs; but not the second. The irregular heir has no right to “institute actions.” The only right he has is “to cause himself to be put in possession.”
When, therefore, the state alleges in her petition for appeal that she is an heir because the decedent has left no legal heir, natural child, or husband, but • does not allege that she has caused herself “to be put in possession of the succession” of the decedent, she does not show any right on her part to “institute any action, even possessory ones,” with reference to the property of said succession. She is as yet as a stranger to it.
“The irregular heir has not the seizin, and can exercise none of the rights attached to it until he has been sent into possession.” Dalloz, Codes Annotes, No. 67 under article 724. Fuzier-Herman, Repetoire du Droit Francais, vo. Succession, No. 983.
“Cette necessité de l’envoie en possession est admise, sans distinction possible, a l’égard du conjoint survivant et de l’état.” Id.
No distinction being possible between the surviving husband and the state in regard to the necessity of having to be sent into possession, it is perfectly evident that the state can take no steps with reference to the property of the succession before having caused herself to be sent into possession, since the surviving husband manifestly could not do so.
Nay, the rights of the state as heir are even less than those of the surviving husband, for the state is not even entitled to be sent into possession. In the same ease of Puyoulet v. Gehrke, 143 La. 315, 78 South. 571, hereinabove cited, this court, speaking of the right to be sent into possession of the succession, says:
“It must then be inferred that [the framers of our Code] purposely refrained from giving such right of action to the state. The'question that next arises t is, how. then is the state to get possession of succession property which, under the terms of articles 485 and 929 of the * * * Code, devolves upon it in default of legal heirs?”
And the court holds that, quoting the syllabus of the decision—
“Property depending upon a vacant succession falling to the state remains in such vacant succession until sold, and then the proceeds of sale become the property of the state, subject, however, to the claims of the creditors or heirs of the deceased, if any appear.”
Any rights that the state may have in a succession are not to be exercised, therefore, in the manner attempted in this case, but in the mode expressly provided for by law. And that is through the public administrator in the parish of Orleans (Act 87, p. 120, 1870); and through a curator of vacant succession in the' other parishes of the state (Act 74, p. 111 of 1877; arts. 1095, 1097, C. C.)
Therefore if the allegations of the state’s petition for appeal be true, the mode of proceeding should be for the court to appoint a curator to the vacant succession, and for this curator to get possession of the property of the succession, and convert it into cash, and turn this cash over into the state treasury.
This appeal by the state is simply anomalous ; it rides rough shod over every known principle and rule governing the situation, and should for that reason be dismissed. The state, as appearing herein, has no standing whatever.
“Said Lona McGee duly acknowledged and recognized your petitioner as her child; that, moreover, the said Lona McGee, mother of petitioner, publicly and privately acknowledged and recognized her as being her child.”
She alleged;
“That Angeline Allen, the natural mother of said Lona McGee, duly acknowledged the said Lona McGee as being her child, and that the said Angeline Allen is the only, person who would have inherited any part of 'the estate of the said Lona McGee in default of your petitioner.”
And she prayed that Angeline Allen be cited to answer the petition.
Angeline Allen answered admitting that the allegations of the petition were true.
Now, a dilemma is presented to the state. If Angeline Allen, as alleged by Lillie Taylor, “duly acknowledged” Lona McGee, she was the proper person to be cited by Lillie Taylor in the proceedings for being sent into possession; and the admissions of her answer became judicial admissions; and as such are the highest possible evidence of the fact alleged by Lillie Taylor of Lona McGee, her mother, having duly acknowledged her; and, if so, the appellants have no ease on the merits. If, on the other hand, Angeline Allen did not duly acknowledge Lona McGee as her child, then the citation of her in this suit for sending into possession amounted to no more than might have done the citation of any other stranger; and, as a consequence, the judgment sending Lillie Taylor into possession was rendered contradictorily with no one (legally speaking), and therefore was not legally and in reality a judgment, but was in law nothing more than a mere ex parte order.
The theory of the state’s appeal necessarily is that Angeline Allen did not legally or duly acknowledge Lona McGee, for in the event of her having done so, Angeline Allen would be the heir of Lona McGee in default of Lillie Taylor, and the state would be without pecuniary interest, and therefore without right to appeal.
Such being the theory of the state’s appeal, and said order sending into possession having therefore to be considered as an ex parte order for all the purposes of the state’s appeal, the state is without pecuniary interest to appeal, for, as said, in the case of Succession of Schirm, 116 La. 735, 41 South. 53, where the state had appealed from an order sending heirs into possession:
“The state cannot be affected one way or the other by the ex parte order, and therefore is. without interest to appeal.”
And in Succession of Lorenz, 41 La. Ann. 1093, 6 South. 886, 7 L. R. A. 265:
“It has been held, invariably, that in such matters, heirs must proceed by suit. * * * And that ex parte proceedings for the recognition of heirs, bind neither creditors nor third persons.”
And again, in Chamberlain v. City, 48 La. Ann. 1055, 20 South. 169:
“The order of court, recognizing plaintiffs as heirs of the deceased, and placing them in possession of his property, is not evidence of his title in a suit by the heirs asserting the ownership of their ancestor brought against the party claiming title.”
In Succession of Barber, 52 La. Ann. 961, 27 South. 363, this court sustained an appeal from an ex parte order sending a widow into possession of the estate of her deceased husband; but while doing so the court said of this order:
“It gives Clara Barber no right of possession as heir. It leaves the succession of Thomas Barber still unopened, unoccupied and unclaimed.”
The court lost sight of the fact that an order which had no greater effect than this could not aggrieve any one and was therefore not appealable. The court cited Cooley v. Cooley, 38 La. Ann. 197, and Succession of
“An action can only be brought by one having a real and actual interest, which he pursues.”
And, of course, an appeal is an action as much so as any other form of litigation. This Cooley v. Cooley decision would seem therefore to be opposed to the Code of Practice, and to the long and unbroken line of decisions holding that for maintaining an appeal the litigant must “show a direct pecuniary interest.” State ex rel. v. Markey, 21 La. Ann. 743. In the other case cited in this Barber Case, to wit, Succession of Lorenz, the judgment appealed from was in a regular suit contradictorily conducted and by a party to the suit.
Also, in Succession of Allen, 43 La. Ann. 1071, 10 South. 304, the court sustained an appeal from an ex parte order sending into possession; but the court very frankly said:
“We find some difficulty in understanding the object of this appeal, or how the judgment appealed from practically aggrieves appellants, since they were not parties thereto, and it cannot operate as res judicata against them. * * * If, however, they are heirs, and desire to annul this judgment by appeal, we cannot controvert their right to appeal.”
As sustaining this conclusion the court cites no authority; whereas, as showing that because of the absence of pecuniary interest the appellants were without right to appeal, the court cites Sue v. Viola, 2 La. Ann. 986; Williams v. Trepagnier, 4 Mart. (N. S.) 343; and Young v. Cenas, 1 Mart. (N. S.) 308. In these cases the appellant was denied a right of appeal because he not being a party to the judgment could not be affected by it;
The general rule is stated in 3 C. J. 625, par. 481, as follows:
“The appellant’s interest, to suffice, must be a direct and immediate pecuniary interest in the particular case, and it is not sufficient that he is interested in the question litigated, or that, by the determination of the question litigated, he may be a party in interest to some other suit, growing out of the decision of that question. One who has no interest but claims wholly adversely to the interest of all parties to the suit, cannot appeal, under a statute permitting any person interested in any order, etc., to appeal. . On the other hand, as a rule, an appealable interest in the subject matter exists whenever the interest of the party may be enlarged or diminished, or his rights or liabilities affected, by the result of the appeal. Where a party will derive some substantial benefit from its modification or reversal, he has an appealable interest. And it has been held that if a party has sufficient interest to make him a party to an action, he has sufficient interest to appeal should the judgment be against him.”
A large number of illustrations of the application of this rule is given from' actual cases in the two paragraphs following the above; and they show that the appellant must have a “substantial” interest, not merely that the appeal is an easier method of securing an opinion from the Supreme Court or even a “milder remedy” to use the expression of the majority opinion. Rights which have been recognized and decreed by the trial court cannot be allowed to be interfered with and put up in the air and held there by third persons not affected one way or the other pecuniarily by such judgment. West has no rights whatever in the premises. If the state is an heir, let a curator be regularly appointed for the vacant sue-
I dissent from the majority opinion, and think the appeals should be dismissed.
Opinion on the Merits
On the Merits.
The facts of this case have been fully stated in the opinion of the majority of the court on the motion to dismiss.
For passing upon these questions the only facts necessary to be known are that Lillie Taylor is the child of Lona McGee and was raised by her as her daughter, and therefore acknowledged by her in every way except in one of the above mentioned modes; and that Lona McGee was the illegitimate 'child of Angeline Allen, the defendant, and was never legitimated.
The- point as to the absence of testimony to prove these facts is not made in the briefs filed in behalf of the state, and was not made in the original brief of West, but was made for the first time only after new counsel, Messrs. Thigpen & Herold, had come into the case representing West; Mr. Herold made it in his oral argument, and it is renewed in a supplemental brief filed by his firm in behalf of West. The idea of making it has evidently come as an afterthought.
We can see no necessity, justice, or even sense, in remanding the case for the admission of proof of facts thus not at first contested, and which, we are entirely satisfied, are incontestible.’
And, moreover, what interest has West to raise the question. In Succession of Girardey, 44 La. Ann. 543, 10 South. 851, supra, this court said:
“In quite a number of cases this article has been examined and construed, the purport or decision being that its object is to preserve the evidence of claims placed upon succession accounts for the benefit of minors and absentees, so that the- right of appeal shall not be embarrassed or abridged.”
And in Succession of Woods, 36 La. Ann. 757, this court said:
“His attack here is directed mainly against the first judgment, on the ground that the record exhibits neither testimony of witnesses taken in writing, nor list of documents produced, nor any proof of any kind of the correctness of the account. * * * C. P. 1042.
“Conceding, argument! gratia simply, that such an objection to this judgment might have force under some circumstances, the question presents itself, what interest has appellant to raise it when he presents no issue as to the correctness of any of the items of said account, except that in favor of himself, which.*109 he claims should be increased?" What does it matter to him whether the correctness of the account was supported by evidence, if he does not dispute its correctness?”
West is not an heir or a creditor of the succession. He has no interest whatever in it.
We take up, then, the question of whether the proceedings below were properly conducted.
“Art. 925. Children called to the succession of their natural father or mother, in the cases mentioned in the preceding articles, are permitted to take possession of the succession which has fallen to them only by the order of the judge of the parish in which the succession is opened.
“Art. 926. If the succession be that of the natural mother deceased without legitimate children, the putting into possession of the natural children shall not be pronounced without calling the relations of the deceased, who would have inherited in the default of the natural children, if they are present or represented in the state; or without appointing a person to defend them, if they are absent.”
Judgment affirmed.
Dissenting Opinion
(dissenting). The judgment rendered by the majority members of the court in this case will, if adhered to, put an end to the claims of the state of Louisiana and of George West. Though they were not parties to the proceedings in the district court, in which Lillie G. Taylor was recognized as owner and ordered sent into possession of the property occupied by George West as owner, the state of Louisiana and George West became parties to the proceedings when they appealed from the ex parte order or judgment recognizing Lillie G. Taylor to be the owner of the property and entitled to possession thereof. That judgment, in favor of Lillie G. Taylor, is now affirmed by the judgment and decree rendered by the majority members of this court, on the appeal of the state and of George West. In fact, the judgment rendered against the appellants virtually declares that neither of them had an interest in prosecuting an appeal from the ex parte judgment that had been rendered in favor of Lillie G. Taylor.
This court had already decided in this case, in a judgment that was rendered six months ago, and that is now final, that the state of Louisiana and George West did each have an interest in prosecuting this appeal, and that they, therefore, had a right to appeal. I refer to our decree overruling the motions to dismiss the appeal of the state and of George West. The contention of Lillie G. Taylor was that the state and George West had no interest in appealing and therefore had no right of appeal. We held otherwise, Mr. Justice PROVOSTY alone dissenting. The learned justice, very lately, almost simultaneously with the submission of his opinion on the merits of this case, filed a dissenting opinion, giving his reasons for saying that the state and George West had no right of appeal. That opinion appears to me to be the basis of the opinion written by the same justice, maintaining that the appellants had no interest in demanding that the case should be remanded to have the evidence reduced to writing.
It appears to me, therefore, that the majority opinion and decree now rendered on the merits of this ease overrules our opinion
Although the two decisions referred to ^re, in effect, overruled by the majority opinion and decree now rendered in the present suit, they are not referred to as being overruled. The opinion rendered in Succession of Henry Dickson, supra, was unanimous. The opinion and decree rendered in the present case, declaring that the state and George West did each have a right of appeal, is final. These decisions, therefore, in my opinion, should not be overruled.
I assume that the granting of a rehearing in the case of Minor v. Young, 148 La. 610, 87 South. 472, was the result of the dissent of Mr. Justice Provosty, who handed down a very lengthy dissenting opinion in that case. 89 South. 762.
It is said in the majority opinion on the merits of this case:
“As Angeline Allen, mother of Lona McGee, was the person ‘who would have inherited in default of natural children,’ i. e., in default of Lillie G. Taylor, if she had acknowledged Lona McGee, she was cited.”
It is not • pretended that Angeline Allen acknowledged Lona McGee to be her child, except verbally and informally, just as Lona McGee acknowledged Lillie G. Taylor to be her child. Therefore Angeline Allen could not have inherited from her daughter, Lona McGee, in any event. This court is yet unanimous in the opinion that a parent cannot inherit from his or her illegitimate child, unless the parent has acknowledged the illegitimate child either by an authentic act or in the registry of birth or baptism. To that extent, Mr. Justice Provosty concurred in the decision in Succession of Lacosst, 142 La. 674, 77 South. 497, viz.:
“Provosty, J., concurs on the ground that, while the child may prove acknowledgment in a mode other than either of those expressly provided for by the Code, the mother may not.”
That distinction seems strange to me, not only because no such distinction is made in the Code, but also because a surviving father, desiring to inherit from his deceased illegitimate child, could obviate the ruling by making the formal acknowledgment required by the Code, after the death of the
“Provosty, J. Plaintiffs sue under the Employers’ Liability Act (Laws 1914, p. 44) in damages as heirs of their child who was killed in the course of his employment at defendant’s sawmill. The defense is that the child was illegitimate, and had never been acknowledged by either of the plaintiffs. Article 203, C. C., provides:
“ ‘The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in the presence of two witnesses, by the father and mother, or either of them, whenever it shall not have been made in the registering of the birth or baptism of such child.’
“Defendant contends that the modes of acknowledgment here specified are exclusive; and plaintiff contends that they are not, but that a baptism of the child in the presence of the parents as their) child, and a declaration by the parents to the federal census taker of their parentage of the child, is the equivalent of a ‘registering of the birth or baptism’ of the child. For so holding this court would have, not to interpret, but to amend, the said article by recognizing an additional mode of acknowledgment.
“It is not contended that the decisions in the cases of Lange v. Richoux, 6 La. 560, Succession of Fortier, 51 La. Ann. 1585, 26 South. 554, Bourriaque v. Charles, 107 La. 217, 31 South. 757, Succession of Vance, 110 La. 760, 34 South. 767, Briggs v. McLaughlin, 134 La. 133, 63 South. 851, and Jobert v. Pitot, 4 La. Ann. 305, recognizing the right of a child to prove acknowledgment otherwise than by the modes prescribed by said article 203 have any application to the ease. The controlling decision is Succession of Lacosst, 142 La. 674, 77 South. 497, to the effect that a parent has not this right.”
The majority opinion in the present case does not overrule — and it is quite certain that we will never overrule — these two recent decisions holding that a surviving parent who has not formally acknowledged his or her deceased illegitimate child in one of the methods required by article 203 of the Civil Code cannot inherit from the child, viz.: Succession of Lacosst, 142 La. 674, 77 South. 497, and Perkins v. Brownell-Drews Lumber Co., 147 La. 337, 84 South. 894. The majority opinion in the present case, in effect, undertakes to reconcile with these two recent decisions, the early decisions maintaining that a bastard child can inherit from his or her deceased parent, by proving paternity or maternity, as the case may be; that is, by proving merely that the child is the illegitimate child of the deceased person, and without proving an acknowledgment in any one of the forms required by article 203 of the Civil Code.
The two divergent lines of jurisprudence cannot be reconciled upon any legal principle whatever. To be consistent, we ought to adhere to the later decisions and say that the earlier decisions to the contrary were thereby overruled; or we ought to overrule the three very recent decisions, Succession of Lacosst, Perkins v. Brownell-Drews Lumber Co., and Minor v. Young ; so that the members of the legal profession will know what the law is on this subject.
Undertaking to reconcile these very recent decisions with the early decisions to the contrary is merely looking for a distinction where none exists. Articles 918 and-919 of the Civil Code, stating under what circumstances an acknowledged illegitimate child shall inherit from his or her deceased parents, are couched in the same language as-is article 922, stating ¡ under what circumstances the surviving parent or parents shall inherit from “a natural child deceased without posterity.” If a distinction can be drawn between the language used in article 922, allowing the surviving parent or par
It will not do to say that, although this court is committed to the doctrine that the father or mother cannot inherit from his or her illegitimate child unless the child has been duly acknowledged by one of the methods required by article 203 of the Civil Code, nevertheless, the court is not committed to the doctrine that an illegitimate child cannot inherit from his or her father or mother without proof that the child was duly acknowledged by one of the methods required by article 203 of the Code. If this court were committed to a doctrine, recognized in several decisions, declaring railroad companies liable in damages for the killing of cows, under certain given circumstances, and if we were thereafter called upon to decide the question of liability of a railroad company for killing a bull under identically the same circumstances, and if we should then discover that our previous decisions on the subject of cows were contrary to the statutory law on the subject, we would not attempt to absolve ourselves of responsibility for perpetuating the error of our decisions regarding cows, by attempting to draw a line of distinction between the killing of cows and the killing of bulls. I have heard that the law
I see no difference, in principle, between the case before us and the Succession of Lacosst, supra, and Perkins v. Brownell-Drews Lumber Co., supra. My opinion, therefore, is that this case should be decided the same as those cases were decided.
I submit that Mr. Justice PROYOSTY may be mistaken in his statement, in the majority opinion in this case, referring to the decision rendered in the case of Minor v. Young, 149 La. 583, 89 South. 757, viz.:
“A majority of the court were disposed at first to depart from the jurisprudence heretofore established on that point, and hold that the modes prescribed in article 203 were exclusive. But on application for a rehearing that view was changed. and the conclusion reached (Justices O’Niell and Dawkins dissenting), that this long-established jurisprudence should be adhered to.”
The fact that a rehearing was granted in Minor v. Young is not evidence of a change in the- conclusion which the court had reached. It is evidence merely that the court was willing to reconsider the case. It happens quite often that the granting of a rehearing does not result in a change of the conclusion already reached by the court. As a matter of fact, the opinion and decree rendered in the case of Minor v.‘ Young was not changed and has become final. Pending the rehearing, the attorneys on both sides, having settled the controversy out of court, filed a joint request that a decree should be entered making our judgment in the case final. The decree was entered, and the opinion has been published officially. 148 La. 610, 87 South. 472. I can recall from memory, and without looking for precedents, two cases in which the opinions, of this court have been quoted several times as authority in subsequent decisions, even though the opinions so quoted were rendered in cases in which rehearings were granted, and which were settled by compromise pendin'g the rehearings. I refer to the case of Wadkins v. Atlanta & Shreveport Oil & Gas Company (not reported) and the case of Boutte v. New Orleans Terminal Co., 139 La. 945, 72 South. 513.
Referring now to Mr. Justice Provosty’s dissenting opinion in Minor v. Young, which I regard tnow as having been adopted as the majority opinion in the present case, the dissertation on the definition of “bastard,” as I understand it, is founded upon the idea that a bastard, or unacknowledged illegitimate child, if he be not an adulterous or incestuous bastard, has the same rights that a bastard, or unacknowledged illegitimate child, if he were not an incestuous or adulterous bastard, had under the French and Spanish law. It was pointed out in the majority opinion in Minor v. Young, and it seems to be conceded in the majority opinion now rendered in the present case, that, under the French and Spanish law, proof of ’ the paternity or maternity of an illegitimate child, provided he was not an incestuous or adulterous bastard, conferred upon the child the same right of inheritance which is conferred by the Civil Code of this state upon an illegitimate child who has been acknowledged by one of the forms prescribed in arti
Article 203 of the Civil Code of this state, the provisions of which were not in the Code Napoleon, declares how the acknowledgment of an illegitimate child shall be made, i. e., by a declaration executed before a notary public in presence of two witnesses, or in the registering of the birth or baptism of the child.
In the early decisions of this court, declaring that proof of the paternal descent of a bastard child confers upon the child the same right of inheritance that was conferred on such child by the French or Spanish law, and the same right of inheritance which is conferred by the Civil Code of this state only upon a child who has been acknowledged in one of the methods prescribed by article 203, the court overlooked or ignored the fact that the provisions of articles 202 and 203 were not contained in the Code Napoleon and were not prescribed in the Spanish law. The Court, therefore, fell into the error of declaring that proof of paternal descent, which, under article 242 of the Civil Code of this state, entitles an unacknowledged illegitimate child to nothing more than .alimony, was equivalent to the formal acknowledgment required by article 203 to elevate an illegitimate child from the status of “bastard” to that of a “natural child” and to allow the child to inherit from his or her parents.
The error of the early decisions has been recognized and pointed out in many recent decisions. The error was pointed out in Succession of Vance, 110 La. 760, 34 South. 767, and the earlier decisions were then bluntly criticized. It was said:
“These decisions and others of like tenor seem to rest mainly upon articles 208 and 209 of the Code, both of which refer to proof of paternal descent rather than to paternal acknowledgment. Thus, article 208 says, illegitimate children who have not been legally ac*123 knowledged may be allowed to prove their paternal descent, and article 209 says, in the case where the proof of paternal descent is authorized by the preceding article, the proof may be made (1) by all kinds of private writings; (2) when the father, either in public or private, has acknowledged him as his child; or has called him so in conversation, -or has caused him to be educated as such; (3) when the mother of the child was known as living in a state of concubinage with the father and resided, as such, in his house at the time when the child was •conceived.
“These are directions, it will be seen, for proving paternal descent, which is not the same thing as the acknowledgment by the father, and it is acknowledgment by the father which converts the illegitimate child, or bastard, into the ‘natural’ child, and from which spring the rights with which the natural child is invested by the law.
“But though we adhere to the jurisprudence authorizing methods of acknowledgment of illegitimate children otherwise than as laid down in Oiv. Code, art. 203, it is impossible to hold that what Vance said to the witness Lee, as hereinabove set forth, suffices to invest her with the title of a legally acknowledged, or natural child.”
I interpret the paragraph last quoted as meaning, not that the court did adhere to the early jurisprudence which was then so severely criticised, as being contrary to the language of the Code, but that, even if the court should adhere to that jurisprudence, the evidence in the case would not be. sufficient to bring it within the doctrine of the early decisions.
The error of the early decisions was also pointed out in Succession of Lacosst, supra, and, even more plainly, in Minor v. Young, supra.
There was some justification or excuse for the error of confusing the proof of paternal descent, which unacknowledged illegitimate children were permitted to make under articles 208 and 209 of the Code, with the formal acknowledgment required by article 203. The confusion perhaps, arose from the fact that proof of paternal descent consists of proving an informal acknowledgment by the father. That is because, as a rule, acknowledgment by the father is the best or only evidence that can be obtained of the paternal descent of an illegitimate child. But there is no justification or excuse for confusing proof of maternal descent with the formal acknowledgment required by article 203 of the Code; because proof of maternal descent cannot be made by proving that the mother informally acknowledged the illegitimate child. Article 212 declares, with regard to proof of maternal descent:
“But the child who will make such proof shall be bound to show that he is identically the same person as the child whom the mother brought forth.”
Therefore, proof of an informal or verbal acknowledgment on the part of the mother would not even be admissible as evidence to prove maternal descent. It seems altogether unreasonable that proof of an informal or verbal acknowledgment on the part of the ■ mother of a bastard child should confer upon the child the right of inheritance conferred only upon a “natural child,” or “duly acknowleded illegitimate child,” notwithstanding such proof would not be admissible to establish the child’s maternál descent, or permit the child to claim alimony from the mot¿er. Article 242 declares that an illegitimate child who has not been legally acknowledged cannot even sue his father or mother for alimony until he has proven his paternal or maternal descent as the case may be, and has obtained a judgment establishing the paternal or maternal descent, as the case may be. Therefore, if the doctrine contained in the majority opinion is correct, a bastard or unacknowledged illegitimate child may inherit the estate of his mother, upon proof merely “that he is identically the same person as the child whom the mother brought forth.” The Code, on the contrary, declares that a bastard, or unacknowledged illegitimate child, who has proven his maternal descent and has had the same established by a judicial decree, is entitled to nothing more than alimony; and
It must be borne in mind, too, that article 208 only allows those illegitimate children “who have not been legally acknowledged” to prove their paternal descent. That is because a child who has been legally acknowledged by his father is not a bastard but a natural child, and is entitled, not only to alimony from his father, but also to the right to inherit from him, if he dies without leaving descendants or ascendants or collateral relations or a surviving wife. Rev. Civ. Code, art. 919. On the other hand, article 212 declares that illegitimate children of every description, that is, natural children or bastards, even incestuous and adulterous bastards, may make proof of their maternal descent, provided the mother be not a married woman. Therefore, when it comes to proving • maternal descent, the proof and judicial declaration of which allows the illegitimate child nothing more than alimony from the mother and her ascendants, all classes of bastards have equal rights.
It must be borne in mind that Lillie G. Taylor was not acknowledged by her father in any way whatsoever, not in private conversation or otherwise, as far as the record shows. She is therefore not a natural child, as defined in the Code, but is contradistinguished by the appellation of “bastard.” She has never obtained1 a judicial decree establishing her paternal descent, and would not even be entitled to alimony from her father if he were living. As the identity of her father is unknown, as far as this record shows, she would not be entitled to inherit from her mother, even if the latter had acknowledged her in one of the methods prescribed by article 203 of the Code. Article 918 declares that “natural children,” not bastards, are called to the legal succession of their natural mother, who has died without leaving lawful children or descendants; and article 919 declares that “natural children,” not bastards, are called to the inheritance oij their father if he has died without leaving descendants or ascendants or collateral relations or a surviving wife. There is no possibility of a confusion of the terms “natural children” and “bastards”; because article 202 declares that they are contradistinguished, the natural children being only those who have been acknowledged by their father, and the bastards being of three classes, (1) those who have not been acknowledged by their father, or (2) those whose father and mother were incapable of contracting marriage at the time of conception, or (3) those whose father is unknown.
Article 920 declares that “bastards,” as contradistinguished from the “natural children” referred to in article 918 and 919, are not entitled to inherit the estates of the natural father or mother in any case, “the law allowing them nothing more than mere alimony,” viz.:
“Bastard, adulterous or incestuous children shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the eases above mentioned, the law allowing them nothing- more than a mere alimony.”
In reference to this article of the Code, Mr. Justice Provosty says, in his dissenting opinion in Minor v. Young, which I regard as the basis of the majority opinion in this case:
“I am perfectly free-to admit that article 920, with the comma in it after the word bastard, gives rise to an ambiguity when read in connection with article 202, classifying as bastards illegitimate children unacknowledged by the father or whose father is unknown. But I believe that I can demonstrate that the*127 said comma was inserted undesignedly, and should be disregarded, so as to have the article read: ‘Bastards adulterous or incestuous children,’ etc. And not, as now, ‘Bastard, adulterous or incestuous,’ etc.”
The learned justice admits that the text of the article in the Code of 1825 reveals the presence of the comma in the same place. It matters not what was the language of the French text of the Code of 1825. Between the English and French text of the Code of 1825, the latter had to prevail if the translation was not precise or literal. But between the French text of the Code of 1825 and the text of the Code of 1870, as to which there is no French text, the language of the Code of 1870 must prevail. The statute of 1870, adopting the Revised Civil Code, declares it to be an amendment and reenactment of the Code of 1825, viz.:
“Be it enacted by the Senate and House of Representatives of the State of Louisiana, in General Assembly convened, that the Civil Code of the State of Louisiana be amended and re-enacted so as to read as follows, to wit: Civil Code of the State of Louisiana, Preliminary Title,” etc.
We therefore have no authority whatever for striking out the comma, after the word bastard, in article 920 of the Code. Mr. Justice Provosty admits that the cutting out of this comma would give the article an entirely different meaning. With the comma after' it, the word “bastard” is an adjective, qualifying the noun children, just as the words “adulterous” and “incestuous” are adjectives qualifying the noun “children.” With the comma after the word “bastard,” the article says that bastard children, adulterous children, or incestuous children shall not enjoy the right of inheriting the estate of their father or mother, the law allowing them nothing more than alimony. Without the comma after the word “bastard,” the article would mean, in very poorly expressed English, that it is only adulterous or incestuous bastards who are not entitled to inherit the estate of their father or mother. Even if we had authority to change the meaning of the law, why should we assume that any English writer, in 1870, would describe adulterous and incestuous bastards thus: “Bastard adulterous or incestuous children”?
To justify the changing of the meaning of article 920, by omitting the comma after the word “bastard,” Mr. Justice Provosty undertakes to demonstrate that, with the comma after the word “bastard,” article 920 has an absurd meaning. I refer, of course, to his dissenting opinion in Minor v. Young, which I regard as the basis for the opinion of the majority in the case before us. The author quotes article 920, precisely as it is written and punctuated, declaring that bastard, adulterous, or incestuous children shall not enjoy the right of inheriting the estate of their natural father or mother in any of the cases above mentioned. He says, very properly, that the expression, “in any of the cases mentioned,” means in the cases mentioned in articles 918 and 919, viz.:
“Art. 918 (912). Natural children are called to the legal succession of their natural mother, when they have been duly acknowledged by her, if she has left no lawful children or descendants, to the exclusion of her father and mother and other ascendants or collaterals of lawful kindred.
“In case the natural mother has lawful children or descendants, the rights of the natural children are reduced to a moderate alimony, which is determined - by the rules established in the title: Of Father and Child.
“Art. 919 (913). Natural children are called' to the inheritance of their natural father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only of the state.
“In all other cases, they can only bring an action against their natural father or his heirs for alimony, the amount of which shall be determined, as is directed in the title: Of Father and Child.”
Then immediately follows article 920, declaring that bastard, adulterous, at incestuous children shall not enjoy the right of
Of course, the expression, “in any of the cases above mentioned,” means “in any of the cases” in which “natural children” are allowed to inherit. The second paragraph of article 919 declares that, “in all other cases,” that is, in all cases except those in which the natural father has left neither descendants nor ascendants nor collateral relations nor a surviving wife, in other words, when he has left any one of those survivors, his natural children.can only bring an action against him or his heirs for alimony. Then follows the article declaring that bastards, adulterous, or incestuous children shall not enjoy the right of inheriting the estate of their natural father or mother “in any of the cases above mentioned,” — meaning, of course, in any of the cases in which a natural child might inherit, just as the paragraph immediately preceding, being the second paragraph of article 919, says, “in all other eases,” meaning in cases in which the surviving father is survived by any one of the relations mentioned in the first paragraph of article 919.
Mr. Justice Provosty expresses the opinion that the phrase in article 919, “in all other cases” means (1) in case the bastard, adulterous or incestuous children have not been acknowledged by their father, (2) in case the bastard, adulterous or incestuous children’s father is unknown, or (3) in case the bastard, adulterous or incestuous children were born of parents who were incapable of contracting marriage at the time of conception. Hence the learned justice illustrates and reasons thus:
“Substituting to the word ‘bastard’ in article 920 the definition of this word in article 202, and substituting for the phrase ‘in any of the cases above mentioned’ the article itself, which is thus referred to (article 919), and we have the following:
“Children who have not been acknowledged by their father, or whose father is unknown, or whose father could not have acknowledged them because they were adulterous, ‘shall not enjoy the right of inheriting the estate of their natural father * * * who has duly acknowledged them.’
“What nonsense this is!
“And what greater nonsense it is in the ease of inheritance from the mother; i. e., in the case of article 919. Making the same substitutions, we would have:
“Children who have not been acknowledged by their father, or whose father is unknown, or whose father could not have acknowledged them because they were adulterous, ‘shall not enjoy the right of inheriting the estates of their natural * * * mother * * '* when they have been duly acknowledged by her.’ ”
I admit that the illustration and reasoning leads to nonsense. But it all results from a wrong interpretation of the expression in article 920, “in any of the cases above mentioned.” The truth is there is no justification whatever for the meaning which was given to the expression, “in any of the cases above mentioned.” It means, undoubtedly, in any of the cases in which “natural children” inherit. In that respect, the word “cases,” in the phrase “in any of the eases,” has the same meaning that the word has in the phrase in the last preceding paragraph, “in all other cases.”
I do not find any justification or reason for believing that an illegitimate child can be elevated from the status of bastard to that of a natural child by being acknowledged by the mother alone, eyen though the acknowledgment be in one of the forms prescribed by article 203. It is true, the article declares that the acknowledgment shall be made by a declaration executed before a notary public in the presence of two witnesses by the father and mother, or either of them. But the reason for allowing the mother to acknowledge her illegitimate child is that the child cannot inherit from the mother, according to article 918, even though the child has been acknowledged by the father, unless the child has been also acknowledged by the
I attach no importance whatever to the fact that article 221 of the Code of 1825, which is article 203 of the Revised Civil Code of 1870, contained a second paragraph,' which was omitted from article 203 of the Revised Civil Code of 1870, viz.:
“No other proof of acknowledgment shall be admitted in favor of children of color.”
It is unreasonable to say that this second paragraph of article 221 of the Code of 1825 was intended to repeal all that wafe said in the first paragraph of the article. Why should the framers of the Code devote a long paragraph declaring in mandatory terms that the acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public in presence of two witnesses, whenever it shall not have been made in the registering of the birth or baptism of the child; and then add a paragraph saying, in substance: “This, however, shall only apply to colored children.” Bear in mind, the expression, “by the father and mother op either of them,” in article 203 of the Revision of the Code of 1870, was, not contained in the corresponding article (221) of the Code of 1825. Therefore the “proof of acknowledgment,” which was not admitted in favor of children of color, by the second paragraph of article 221 of the Code of 1825, had reference to proof of paternal descent; and the word “acknowledgment” was used because, as a general rule, that is the only method of proving paternal descent. Evidence of an informal acknowledgment, however, is not admissible to prove maternal descent. The prohibition against proof of acknowledgment in favor of children of color, therefore, merely forbade them to prove paternal descent. If the framers of the Code of 1825 had meant to say that the strict requirement for the acknowledgment of an illegitimate child, as required by the first paragraph of article
I respectfully dissent from the opinion and decree now rendered in this case.
149 La. 598.
149 La. 598.
Rehearing
On Rehearing.
A further consideration of this case has only served to satisfy us with the correctness of the conclusions reached on the original hearing.
We feel that it is the established jurisprudence of this court that an illegitimate child may prove acknowledgment in a mode other than that provided by article 203 of the Revised Civil Code, as appears from the cases cited in the original opinion, and that we should not depart from that jurisprudence. AVe need only add that, in reviewing some of that jurisprudence, we made the following statement in reference to the case of Minor v. Young, 148 La. 610, 87 South. 472, in speaking of the modes of proving acknowledgment:
“A majority of the court were disposed at first to depart from the jurisprudence heretofore established on that point, and hold that the modes prescribed in Art. 203 were exclusive. But on application for a rehearing that view was changed and the conclusion reached (Justices O’Niell and Dawkins dissenting), that this long' established jurisprudence should be adhered to.”
AVhile the rehearing was granted in that case, as stated, yet before the rehearing was disposed of, the parties to the litigation compromised the case, and at the instance of those parties, a consent judgment was rendered reinstating the former opinion and decree. As that opinion, after the rehearing was granted, was reinstated by consent, it does not .constitute precedent, one way or the other. The error mentioned does not affect the conclusion reached in our former opinion.
With this correction, it is therefore ordered, adjudged, and decreed that our former opinion and decree be and the same are hereby reinstated and made the judgment of this court.
